CAI Congyan

Abstract:The particularity of the oceans and their governance order has made it critical for a State to accurately understand the public order at sea in order to establish,maintain,and enhance its voice in ocean affairs.This is especially true for the emerging maritime powers.To understand the public order at sea,States cannot disengage from the theory and practice of general international law,failing which there may be deviations not only in the understanding of the said public order,but also in the response to the specific public order at sea.Oceans have hitherto witnessed three stages of freedom:monopoly,oligarchic and universal.This evolution has exerted a profound influence on the elements,ideological foundation,structure of actors,governance pattern,legal modalities,regulatory methodology,etc.,of the public order at sea.

Key Words:Sea;Public order;Community;International law;Structure

I.Introduction

Insofar as the public international law is concerned,the issue of public order is nothing new.The concept of natural law,as is known,figured predominantly in modern international law until the 18th century,especially during the nascent period of international law in the 15th century.Logically,the issue of public order inevitably makes up an important part of modern international law dominated by the concept of natural law.Looking at the history of practice and thought of international law,it is easy to see that the modern and contemporary international legal systems that are recognized as posing the public order,includingjus cogens,actually originated in the 15th,16th or 17th centuries.Jus cogens,for example,is derived from Emerich de Vattel’s “necessary law” theory.However,as the concept of positive law reigned in the theory and practice of international law after the 19th century,discussions became less about public order in public international law but more about public order in private international law.

The two successive world wars in the first half of the 20th century,especially the one that broke out again less than two decades after the end of World War I,which was even larger and more disastrous,brought the concept of natural law back into the theory and practice of international law and revived the concern for public order.In terms of theory,the new school of natural international law,represented by Hersch Lauterpacht,entered the scene.In terms of practice,such concepts,rules and regimes of international law asjus cogenscame into existence one after another.Nevertheless,the half-century-long Cold War held back the theoretical research and legal practice of international public order to a large extent.It was not until the 1990s,in response to the end of traditional East-West confrontation and the proliferation of non-traditional security issues,that the establishment and,above all,the maintenance of public order took on increasing importance in the theory and practice of international law.

The meaning of public order was explained in theApplication of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v.Sweden),in which Moreno Quintana,then Judge of the International Court of Justice,elaborated in detail in his separate opinion.He held that:

International ordre public operates within the limits of the system of public international law when it lays down certain principles such as the general principles of the law of nations and the fundamental rights of States,respect for which is indispensable to the legal co-existence of the political units which make up the international community.The natural society of nations,to which Francisco de Vitoria looked forward,in the 16th century,the society which involved the CO-existence of perfect communities within a universal community as propounded by Francisco Surez in the following century,the Civitas Maxima described by Christian Wolff in the 18th century,as constituted by all States on the basis of a tacit covenant,and the legal community of States bound by the performance of certain duties,as defined in the last century by Friedrich Karl von Savigny,are all necessarily based on these principles and these rights.“These principles-which we are all quitefamiliar with them because they are very limited-and these rights,too,have a peremptory character and a universal scope.On the one hand,the freedom of the seas,the repression of piracy,the international continuity of the State,the immunity of jurisdiction and the rules governing warfare;and on the other hand the inviolability of treaties,the independence and legal equality of States.1Separate Opinion of Judge Moreno Quintana,ICJ Reports 1958,p.106-107.The original text reads:“International ordre public operates within the limits of the system of public international law when it lays down certain principles such as the general principles of the law of nations and the fundamental rights of States,respect for which is indispensable to the legal co-existence of the political units which make up the international community.The natural society of nations,to which Francisco de Vitoria looked forward,in the 16th century,the society which involved the co-existence of perfect communities within a universal community as propounded by Francisco Suarez in the following century,the Civitas Maxima described by Christian Wolff in the 18th century,as constituted by al1 States on the basis of a tacit covenant,and the legal community of States bound by the performance of certain duties,as defined in the last century by Friedrich Karl von Savigny,are al1 necessarily based on these principles and these rights.These principles– which we are al1 quite familiar with them because they are very limited– and these rights,too,have a peremptory character and a universal scope.On the one hand,the freedom of the seas,the repression of piracy,the international continuity of the State,the immunity of jurisdiction and the rules governing warfare;and on the other hand the inviolability of treaties,the independence and legal equality of States.”

The above Separate Opinion suggests,firstly,that public order is a legal concept which contains specific rights and obligations,and secondly,that public order at sea is a key component of international public order.However,in the light of the discussion below,2See Part III (B) herein.the description of international public order,including public order at sea,purely from a positive law perspective is inadequate.A further understanding of public order from the social/political perspective will be helpful to understand the formation mechanism of international public order,its current operation,and the direction of its development.

Notably,recent years have seen a tendency for Western international law scholars to use the concept of “global commons” or “public goods” when discussing international public order,including public order at sea.Originally a concept in economics,the term “public goods” was later introduced into the study of international relations and has since been used by some international law scholars.3For representative literature on global commons,see the recent oped in the European Journal of International Law entitled Global Public Goods amidst a Plurality of Legal Orders.See Fabrizio Cafaggi &David D.Caron,Global Public Goods amidst a Plurality of Legal Orders:A Symposium,European Journal of International Law,Vol.23:3,p.643-649 (2012);Daniel Bodansky,What’s in a Concept? Global Public Goods,International Law,and Legitimacy,European Journal of International Law,Vol.23:3,p.651-668 (2012);Gregory Shaffer,International Law and Global Public Goods in a Legal Pluralist World,European Journal of International Law,Vol.23:3,p.669-693 (2012);Fabrizio Cafaggi,Transnational Private Regulation and the Production of Global Public Goods and Private“Bads”,European Journal of International Law,Vol.23:3,p.695-718 (2012);Francesco Francioni,Public and Private in the International Protection of Global Cultural Goods,European Journal of International Law,Vol.23:3,p.719-730 (2012);Petros C.Mavroidis,Free Lunches? WTO as Public Good,and the WTO’s View of Public Goods, European Journal of International Law,Vol.23:3,p.731-742 (2012);Elisa Morgera,Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law,European Journal of International Law,Vol.23:3,p.743-767 (2012);André Nollkaemper,International Adjudication of Global Public Goods:The Intersection of Substance and Procedure,European Journal of International Law,Vol.23:3,p.769-791 (2012).See also Scott Jasper,Securing Freedom in the Global Commons,Stanford University Press,2010.The fact that the aforesaid scholars chose “public goods” instead of“public order” reveals their intention not to rigidly understand the public order in international law,including public order at sea,from the perspective of positive law.Despite admiring the flexibility implied by the choice of such terminology,this paper still employs the term “public order” rather than “public goods”.The reason is that the use of the legal term “public order” can,arguably,reveal the most significant difference between the current and the previous order at sea,and reveal the deep-seated challenges that China faces in addressing the public order at sea.

This paper aims to establish an analytical framework for understanding the public order at sea in terms of the elements (Part II),ideological foundation (Part III),structure of actors (Part IV),governance pattern (Part V),legal modalities(Part VI),and regulatory methodoloty (Part VII) revealing the complexity of the public order at sea and providing theoretical support for China’s marine affairs accordingly.

II.Elements of the Public Order at Sea

In terms of general jurisprudence,there are two fundamental values that law seeks to achieve,namely freedom and security (order).Admittedly,freedom and security cannot be considered mutually exclusive or opposite,between which,however,a tension objectively exists.Fundamentally,all laws should strike a balance between freedom and security.Having said that,freedom and security may differ in ideological foundation,legal modalities and actor structure,resulting in a possibly different process to reach a balance.Based on the experience of domestic law,the basic modalities of regulating freedom and security in the private law context is autonomy of private law,whereby the private parties agree on their own arrangements for freedom and security of transactions,leaving no involvement of the public authorities in the process of agreeing on these arrangements in principle.In the public law context,on the contrary,the public authorities have not only the power but also the obligation to be more active in developing and ensuring the implementation of relevant legal arrangements.

A.Freedom

Freedom has been a primary element of the public order at sea since Roman times and is essential to the maintenance of international exchanges.It should be noted,however,that the desirability of freedom is conditional,which depends on whether the internal relations (between different freedoms) and the external relations (between freedom and other value pursuits) are accurately understood and practiced in good faith.4See Part III herein for the ideological foundation of the public order at sea.In other words,claims of freedom of the seas may or may not be justified.

Freedom of the seas can be analyzed in terms of both subject and content.

In terms of subject,the ancient Romans saw the sea and air as “res communis”rather than “res nullius”,the latter of which could be subject to the “first come,first served” principle,so the sea was “open to all”.But as the Roman Empire dominated the Mediterranean,and no other small European nations could match its use of the seas,what the Roman Empire called freedom of the seas “actually served the Roman Empire’s hegemony claims”.5See ZHANG Xiaoyi,The Historical Evolvement of Freedom of Navigation,Chinese Review of International Law,Vol.1:4,p.23 (2014).(in Chinese)In a nutshell,the freedom of the seas during this period was actually one for the Roman Empire alone,which we might as well call “monopoly freedom”.In the wake of the maritime separation movement in the 15th and 16th centuries,6The representative maritime separation movement is undoubtedly the separation of the oceans completed by the papal decree of Pope Alexander VI in 1493 and the treaty between Portugal and Spain in 1494,whereby Portugal had exclusive rights of navigation in the Indian and South Atlantic Oceans and Spain in the Western Atlantic,the Gulf of Mexico and the Pacific Ocean,with the right to impose tolls on foreign vessels,to restrict or prohibit their passage,and to restrict or prohibit foreign fishing vessels from fishing.the rise of emerging maritime powers represented by the Netherlands in the 17th century and the United Kingdom (UK) in the 18th century,and especially the industrial revolution that began in Europe and spread to the United States (US) in the 18th century,a handful of States,notably the UK,which relied on international trade by sea,became increasingly more supportive of freedom of the seas,including the UK,once criticized for its “Mare Clausum”(closed sea).As of the mid-20th century,however,the vast number of coastal States in Asia,Africa and Latin America,let alone the landlocked States,had nowhere near the ability to use the seas as the United Kingdom did.In particular,their backward economic strength and closed economic mindset prevented them from having a strong desire or awareness to use the seas.In a nutshell,the freedom of the seas in this period was actually one for a few States such as the UK,which we might as well call “oligarchic freedom”.

Since the mid-20th century,a large number of emerging developing States in Asia,Africa and Latin America became increasingly aware of the importance of the seas as a result of their political independence or restoration of independence and their increasing integration into the international economic system,as well as the renewal of their views on the seas.Admittedly,the coastal States among developing ones are the important participants in the new Blue Enclosure Movement arising after the World War II,but they did not,and in fact cannot,deny the freedom of the seas,because this is in conflict with the objective trend of economic globalization and their subjective pursuit of integration into the international economic system.Following the developing States’ Blue Enclosure Movement,which objectively undermined the freedom of the seas,this led to the strengthening of support for freedom of the seas by the traditional maritime powers,such as the UK and the US.The said support,albeit motivated by the interests of the traditional maritime powers,has objectively contributed to the preservation of freedom of the seas,even though the US is actually the one caused this movement and the developing States are merely followers.7In 1945,then President Harry S.Truman issued the Presidential Proclamation No.2668(also known as “Truman Proclamation”),which established the exclusive economic zone.The Proclamation stated that “the United States shall have the right to protect the fishery resources of the high seas within specified areas of the coasts of the United States;in view of the pressing need for conservation and protection of fishery resources,the United States will establish conservation zones and exercise its right to conserve and manage them in areas of the high seas contiguous to the coasts of the United States beyond the territorial sea”.As a result of this,many coastal States have set up exclusive economic zones.In addition,there has been a gradual emergence or strengthening of the concept of freedom of the seas in landlocked developing States,whose claims to freedom of the seas have been historically recognized by the legal regime,including Part X (Right of Access of Land-Locked States to and from the Sea and Freedom of Transit) of theUnited Nations Convention on the Law of the Sea(UNCLOS).8It should be emphasized that the freedom of the seas enjoyed by landlocked States is clearly not limited to the “right of access to and from the sea and freedom of transit” as stipulated in Part X.This right is both an integral part of the right of land-locked States to freedom of the seas and a means by which these States exercise other rights to freedom of the seas.Under Art.125,para.1 of UNCLOS,“Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind.To this end,land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport.”In a nutshell,the freedom of the seas since the mid-20th century,especially since the adoption of the UNCLOS,is one for all States,which we might as well call “universal freedom”.

The evolution of freedom from monopoly to oligarchic and then to universal has posed abundant implications on the public order at sea.On the surface,it indicates the expansion of the subject scale of freedom of the seas.More importantly,it has exerted extensive influence on the ideological foundation,governance pattern,legal form and regulatory methodology of the public order at sea,thus reshaping it as a whole.

From a content point of view,the seas were divided into only two areas,the territorial seas and the high seas,by the mid-20th century.The former was recognized as the territory of the coastal State,where there existed only very limited issues of public order,namely the regime of innocent passage.In straightforward terms,freedom of the seas was fundamentally equivalent to freedom of the high seas.The exact meaning of freedom of the high seas,however,was not of particular concern by the mid-20th century.The reasons are easy to fathom.Firstly,at the time of “monopoly freedom” or “oligarchic freedom”,the seas were vast and abundant enough to allow those monopolies or oligarchies to use them in their own agreeable ways.Secondly,subject to the overall level of globalization,the said monopolies or oligarchies had a more limited way of using the seas,and even their demands were relatively limited.Accordingly,the seas could be used “freely” by all States,leaving little need to define the meaning of “freedom” of the seas.In turn,it does not matter whether the freedom of the seas has been exploited in good faith or not.

On all accounts,the content of freedom of the seas has changed in the mid-20th century,especially after the adoption of the UNCLOS,which are manifested in the following two aspects:first,the diversity of freedom of the seas based on sea areas or regions has been further enhanced by the emergence of the exclusive economic zone (EEZ),continental shelf,international maritime zones and other regimes;second,changes are also taking place in the meaning of freedom of the seas in the same maritime part or in the rights of specific freedom.In the case of freedom of the high seas,the freedom is exercised under the conditions set forth in the UNCLOS and in “other rules of international law”,as provided for in Article 87 of the UNCLOS.It is clear that both UNCLOS and “other rules of international law” are subject to change in practice,which will affect the meaning of freedom of the high seas.

Freedom,as a general rule,represents not only the goal pursued by the subject,but also the means by which the subject asserts and realizes its benefits.In other words,freedom is both ontological and instrumental.The instrumental utility and character of freedom of the seas is more evident than the relationship between freedom and benefits9On the whole,the Chinese jurisprudence circle,which is deeply influenced by the historical materialism,attaches greater importance than Western jurisprudence circle to the connection between rights and interests,considering that the basis and goal of rights is interests.In other words,rights are largely regarded as instrumental.in the context of domestic law.The reason lies in the fact that the special ideological foundation,actor structure and legal modalities of the public order at sea10See Parts III,IV,and V herein.make it possible/risky for the freedom of the seas to become a tool for uneven benefit distribution,whether between large and small maritime States,between coastal and landlocked States,and between present and future generations.

B.Security

Security is another important element of the public order at sea.The existence of a tension between security and freedom,as mentioned earlier,reveals that freedom is in fact an important trigger for security concerns.There is certainly a difference between the logical state of the tension between freedom and security,which is latent,and the factual state,which is real.As evidenced by the history of the international law of the sea,factors affecting maritime security throughout the long process of human use of the oceans consist mainly of factors unrelated to freedom of the seas,including those unrelated to human activities (such as climate phenomena like hurricanes) and those involving human activities (mainly piracy).However,with the increasing number and strengthening capacity of subjects exercising the right to freedom of the seas,as well as the growing scale,diversity and complexity of activities embodying freedom of the seas,the maritime security problems induced by the exercise of the right to freedom of the seas have become increasingly prominent.

It has been relatively easy for States to reach consensus and cooperate strongly on the basis of addressing maritime security issues induced by factors unrelated to freedom of the seas.In 2008,for example,the UN Security Council adopted Resolution 1816 (2008) at its 5902nd meeting in response to the rampant piracy in the waters off Somalia.The Resolution decides that for a period of six months from the date of this resolution,States cooperating with the Transitional Federal Government (TFG) in the fight against piracy and armed robbery at sea off the coast of Somalia,for which advance notification has been provided by the TFG to the Secretary-General,may:

“(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea,in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law;and (b)Use,within the territorial waters of Somalia,in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law,all necessary means to repress acts of piracy and armed robbery”.Thereafter,the UN Security Council adopted Resolutions 1838 (2008),1864 (2008) and 1851,which reinforce,complement and even go beyond the provisions of the UNCLOS on suppression of piracy.11For comparison,see Art.100 &105 of UNCLOS,and Security Council Resolution 1816(2008).In fact,anti-piracy is almost the only area where members of the UN Security Council have cooperated effectively since the Kosovo war in 1999.

By contrast,States have a much harder time cooperating effectively on maritime security issues that arise from the exercise of the right to freedom of the seas.The reason is that addressing such maritime security issues necessarily involves reconfiguring established rights to freedom of the seas,which,in other words,may be subject to derogation.This is the underlying reason behind the US’reluctance to accede to the UNCLOS even after the States Parties thereto were forced to accept theAgreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982,which substantially modified Part XI of the UNCLOS,in 1994,because the US could claim freedom of the seas under customary international law without being subject to limitations on the said freedom under treaty law.

Security,viewed from the perspective of international law,has the following characteristics:First,breadth.Security involves aspects of politics,economics,military,and culture.However,these security concerns have not all been effectively incorporated into the constraints of international law,although they may be equally important.Second,relevance.As the process of globalization continues to advance,the issue of “issue linkage” in the practice of international law has become increasingly important.In the case of security issues,there is a growing tendency for different security concerns to be linked with each other.Third,epochal character.The advancing process of globalization may lead to the emergence of new types of security concerns as well as changes in traditional security concerns,while international law is often unable to regulate these new changes in a timely manner due to the decreasing law-making efficiency of international law.Fourth,self-judgment.Security concerns have traditionally been regarded as “advanced politics”,i.e.,international law,especially international dispute resolution mechanisms,largely respects the judgment of particular States on security issues.In the transition of human society from an industrial society to a risk society -where one of its basic characteristics is that risks are often perceived subjectively rather than identified objectively -the issue of self-judgment in the practice of international law has become increasingly prominent.12For risk society theory,see Ulrich Beck,World Risk Society,Polity Press,1998;Ulrich Beck,Risk Society:Towards a New Modernity,translated by Mark Ritter,SAGE Publications,1992;Ulrich Beck &Johannes Willms,Conversations with Ulrich Beck,translated by Michael Pollak,Polity Press,2004;Ulrich Beck,What Is Globalization?,translated by Patrick Camiller,Polity Press,2000.For the author’s attempt to apply risk society theory to the study of international law,see CAI Congyan,Regulation of Non-Traditional Investment Risks and Modern Investment Treaty Regime in the Era of Late Globalization,Manchester Journal of International Economic Law,Vol.7:3,p.457-506(2010).This has resulted in,on the one hand,the fear of some States that their acceptance of a particular regime of international law may lead to “obligation spillover”,i.e.,being forced to assume international legal obligations in areas not explicitly governed by international law;on the other hand,the desire of some States to seek “rights spillover” through particular international law,i.e.,to assert international legal rights in areas not explicitly governed by international law.

Specifically,in terms of maritime security,the advancing progress of globalization,especially economic globalization,has led to the increasing dependence of various States on the sea for resources and transportation,which inevitably breeds greater and more complex maritime security concerns than before.Some States may fail to accurately understand the breadth,relevance,epochal character,and self-judgment of maritime security concerns,while others may exploit these characteristics in bad faith in pursuit of their own interests.In contrast to the more explicit and effective rule of law framework for relations among states on land as already provided by international law,there is a significantly lower degree of international rule of law on the oceans.In this regard,international law,including the UNCLOS,faces outstanding challenges in responding to maritime security issues:First,international law may be ineffective or inadequate because the relevant States have different perceptions of the meaning or even the existence of a particular rule of international law,and it is therefore insufficient to be invoked to effectively address new maritime security concerns;second,international law may be “effective” because it can be used by the States concerned in bad faith to pursue their narrow national interests.

Take the provisions of Article 301 of the UNCLOS as an example.Thought entitled “Peaceful uses of the seas”,this Article does not specify the meaning of “peaceful”,but rather provides in its text that “[i]n exercising their rights and performing their duties under this Convention,States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State,or in any other manner inconsistent with the principles of international law embodied in theCharter of the United Nations”.Similarly,while Part XIII of the UNCLOS details the issue of marine scientific research,it does not specify the meaning of “marine scientific research”per se.In this light,with respect to the constraints on foreign military activities in the EEZ,a majority of scholars in China and the US have arrived at very different understandings of the peaceful purposes under Article 301 thereof and the nature of foreign warships/military aircraft,etc.,engaged in activities such as information gathering in and over the EEZ.13For comparison,see Raul (Pete) Pedrozo,Preserving Navigational Rights and Freedoms:The Right to Conduct Military Activities in China’s Exclusive Economic Zone,Chinese Journal of International Law,Vol.9:1,p.9-29 (2010);ZHANG Haiwen,Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?—Comments on Raul(Pete) Pedrozo’s Article on Military Activities in the EEZ, Chinese Journal of International Law,Vol.9:1,p.31-47 (2010).

What should be particularly noted is that the Third United Nations Conference on the Law of the Sea was launched at a time when the movement for a new international economic order was “in the ascendant”.As a result,the vast number of developing States,including China,made great efforts to change the old international economic order and improve the economic security of developing States through the Conference on the Law of the Sea.The UNCLOS that was eventually concluded also reflects the appeal of the times.14The Preamble to the UNCLOS provides for that “Bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and,in particular,the special interests and needs of developing countries,whether coastal or landlocked”.On the other hand,the developing States were at that time not very concerned about effectively addressing the abuse of freedom of the seas by maritime military forces of traditional maritime powers such as the US through the UNCLOS,thus losing an important opportunity to update customary international law through treaty law.

III.Ideological Foundation of the Public Order at Sea

This paper holds that one of the most important challenges China faces in its rise as an emerging power,also as an emerging maritime power,is how to cope with the expanding and strengthening international public order,including the public order at sea,as well as the changes in the maritime governance paradigm as a result.15See the discussion in Part V herein.In a nutshell,the individualism that underlies the traditional notion of the rise of great powers is increasingly evolving into the communitarianism,and China will be forced to base its international law practice more on communitarianism than on individualism.An accurate understanding and proper management of the relationship between individualism and communitarianism is essential for emerging powers such as China to properly formulate and effectively implement international law strategies.In this respect,the transformation of the public order at sea is a very representative case.

A.Individualism

The term individualism refers to a State’s foreign relations actions are conducted with its national interests as the main or even the only consideration.The essence of individualism islaissez-faire.As correctly pointed out by Antonio Cassese,the famous international jurist and president of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia,traditional international law,especially after World War I,is individualistic and fundamentally based on laissez-faire.16See Antonio Cassese:International Law,translated by CAI Congyan et al.,Law Press,2009,p.17,41.(in Chinese)

In the sense of legal relations,international law,formed and implemented on the basis of the concept of individualism,has a distinctive bilateral character,that is,a third party other than the State parties to a particular legal relation cannot interfere with this legal relation,even if the said relation is based on a multilateral regime or mechanism,for example,both parties are States Parties to a multilateral agreement.Antonio Cassese views these rules of international law as “bilateral”.It is noteworthy that Cassese recognizes that customary international law is a right conferred on a particular State to all other States,and is thus a right in a communitarian sense.But he argues that this right is weakened to a bilateral sense in the implementation process,that is,it lacks a corresponding procedural right.Freedom of the high seas,as he sees it,is a typical such rule of international law.17Id,p.17.Similarly,in theThird Report on State Responsibility,Riphagen,then Special Rapporteur of the UN International Law Commission,noted that traditional international law was fundamentally “bilateral-minded”,i.e.international legal obligations arose and existed only between individual States.18William Riphagen,Third Report on State Responsibility,Yearbook of the International Law Commission,1982,Vol.2,Part 1,p.36.Bruno Simma,the renowned international jurist and former judge of the International Court of Justice,described traditional international law with the term of “bilateralism”.19Bruno Simma,From Bilateralism to Community Interest in International Law,Recueil Des Cours,1994,VI,p.230

In the case of the high seas alone,freedom of the high seas means that the high seas are open to all States of the international community,whereby “no State may validly purport to subject any part of the high seas to its sovereignty”.20See Art.89 of UNCLOS.However,this does not imply that an adequate and just public order has been established on the high seas by the international community,let alone that it is effectively maintained.For a considerable period of history,the public order at sea was limited and unjust,resting on the concept of individualism.This is primarily because,as mentioned earlier,freedom of the seas was still in the period of “monopoly freedom” or “oligarchic freedom” by the mid-20th century,during which the vast majority of States were unable to participate in the construction of the maritime order for lack of sufficient awareness and capacity to use the sea.For quite a long time,many of them were even excluded from membership in the international community as they were considered by the West as failing to meet “standards of civilization” and were denied the legal status of sovereign States.

As an important embodiment of individualism in the law of the sea,the concept of “first come,first served” in private law has long exerted a profound influence on the utilization of the oceans.It is clear that the concept of individualism is more favorable to large maritime States than to small maritime ones as the latter have a greater capacity to use the oceans and to construct maritime legal regimes.Nevertheless,small maritime States also pursue their national interests using the concept of individualism to the extent possible.As is well known,the Blue Enclosure Movement that emerged since the 1940s,in which coastal States expanded their territorial waters and established EEZs,involved both maritime powers such as the US and small maritime States such as Malta.

B.Communitarianism

The term communitarianism refers to that a State’s foreign relations actions are subjectively willing or objectively obliged to be subject to the constraints of the community in which it actively or passively joins,without being able to pursue purely its own national interests.In discussing communitarianism in international law,it is important to address the following issues:(a) the existence of the international society or international community;(b) the meaning of the international society or international community;(c) the characteristics of the international society or international community;(d) the influence of the international society or international community on international law,including the law of the sea.While it cannot be argued that the concept of international community was entirely absent from traditional international law,21For example,the International Committee of the Red Cross,founded in the mid-19th century,and its activities were actually based on the concept of international community.it can be said that there was basically no concept of international community in the general sense before the 20th century.This point can be illustrated by Friedmann’s widely accepted staging of the development of international law.22For an important recent analysis of the difference between the law of coexistence and law of cooperation,see George Abi-Saab,Whither the International Community?,European Journal of International Law,Vol.9,p.248-265 (1998).In his classicThe Changing Structure of International Law,Friedmann divided international law up to that time into “l(fā)aw of coexistence” and “l(fā)aw of cooperation”,with the former emphasizing “passive inaction” in relations between States,especially not infringing on the sovereignty and territorial integrity of others,and the latter emphasizing “positive action” in relations between States.23See Wolfang Fridmann,The Changing Structure of International Law,Columbia University Press,1964,p.60-63;Christian Tomuschat, International Law:Ensuring the Survival of Mankind on the Eve of A New Century,Recueil Des Cours,Vol.281,p.56-63 (1999);Preamble to the Covenant of the League of Nations,para.1.Chinese scholars have also accepted this staging theory.For example,see LI Haopei:Concept and Origin of International Law,Guizhou People’s Press,1994,p.27.(in Chinese)Evidently,the “l(fā)aw of coexistence” follows the logic which implies “save your breath to cool your porridge”.This is exactly a manifestation of the lack of the concept of community.There is no clear indication from Friedmann as to the boundary of international law moving from the “l(fā)aw of coexistence” to the “l(fā)aw of cooperation”,it can be argued that the establishment of the international coalition,especially the United Nations,was a watershed in the move from the “l(fā)aw of coexistence” to the “l(fā)aw of cooperation” because theCharter of the United Nationsset forth international cooperation as a fundamental principle of international law for the first time in history.24According to Tomuschat,the League of Nations was the first legal framework in human history that did not rely on traditional theories of sovereign equality.Although the League of Nations failed,it was a major step in a new direction.See Christian Tomuschat,International Law:Ensuring the Survival of Mankind on the Eve of A New Century,Recueil Des Cours,Vol.281,1999,p.59.Admittedly,cooperation is not,in a general sense,a legal obligation of sovereign states in current international law.There is no denying the fact that the number of areas in which cooperation is not only legally obligatory under international law,but is generally recognized by members of the international community as a political or moral obligation -a necessary step towards cooperation under legal obligation -is increasing.These areas are increasing due to the growing number of global issues such as the international financial crisis,international terrorism and international climate change,which contribute to the growing common interests among members of the international community and to the formation of an increasingly solid concept of community.This concept is revealed to some extent by the growing use of the term “interdependence”.

Nevertheless,it is true that there are many people who still deny the existence of an international community.In response,Former UN Secretary-General Kofi Annan criticized that:

Some people say the international community is only fiction.Others say it is too elastic a concept to have any real meaning.Still others say it is a mere vehicle of convenience,to be trotted out only in emergencies or when a scapegoat for inaction is needed.Some say there are no internationally recognized norms,goals or fears on which to base such a community.25Kofi Annan,The Meaning of International Community?,Address to 52nd DPI/NGO Conference,New York,15 Sep 1999.

In Annan’s view,the failure of the international community to play its part on many issues– which he does not deny– should not lead to the view that the current international community can at best be described as a “work in progress”,and the existence of conflicts of interests and ideas among States– he does not suggest an era of total harmony is within reach– should not lead to the denial of the existence of international community.Annan argued that with a growing recognition of interdependence,we are “rewriting the rules,reframing our debates and reshaping our work”.Thus,Annan stated firmly:“I believe these sceptics are wrong.The international community does exist.It has an address.It has achievements to its credit.And it is the only way forward.”26Ibid.

The objective realization of international law is clearly more relevant to the existence or non-existence of an international community.Article 53 of the 1969Vienna Convention on the Law of Treatiesdefines the international peremptory norm as a norm accepted and recognized by the international community of States which can be modified only by a subsequent norm of international law having the same character.According to Tomuschat,the existence of the “international community” isprima facieunquestionable from the provisions of many treaties and other legal documents.27Christian Tomuschat,Obligations Arising for States Without or Against Their Will,Recueil Des Cours,Vol.241,IV,p.227 (1993).The existence of an international society or international community has also been confirmed by the international adjudicatory bodies.In theCase Concerning United States Diplomatic and Consular Staff in Tehran,the International Court of Justice (ICJ) considered it to be its duty to draw the attention of the entire international community,and considered that the maintenance of the edifice of law carefully constructed by mankind over a period of centuries was vital for the security and well-being of the complex international community of the present day.28United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),Judgment,ICJ Reports 1980,p.43.In the South West Africa case,the ICJ stated that Namibia,as the injured entity,was entitled to seek assistance from the international community.29Legal Consequences for States of the Continued Presence of South Africa in Namibia(South West Africa) notwithstanding Security Council Resolution 276 (1970),Advisory Opinion,ICJ Reports 1971,p.56.In theBarcelona Traction case,the ICJ noted that obligationserga omneswere owed to the international community as a whole.30Barcelona Traction,Light and Power Company,Limited (Belgium v. Spain),Second Phrase,Judgment,ICJ Reports 1970,p.3.It is,admittedly,true that the international community has not played an effective role in all matters,as Annan acknowledged.

From the perspective of sociology of law,the existence of community is essential for the establishment and maintenance of public order.Public order is a matter of interest for all members of a given group,not for individual members.In addition to their inability to establish and maintain public order,individual members may also “use public facility for private purposes”,i.e.,pursue their own narrow interests in the name of establishing and maintaining public order.The community,by contrast,has more power and is more likely to have effective “public will” mechanisms,31See Jean-Jacques Rousseau:The Social Contract,translated by HE Zhaowu.The Commercial Press,2003,p.37-41.(in Chinese)making it more likely to establish and maintain a just public order.In essence,no public order is possible without a community.At the domestic level,a State is the most important community that people have built to establish and maintain a minimum public order.At the international level,a more effective form of community was employed to establish and maintain international public order in the course from thePeace of Westphaliain 1648 to the Congress of Vienna in 1815,and from the League of Nations in 1919 to the United Nations in 1945.There is,certainly,a difference in the capacity of sovereign States and international communities,such as the United Nations,to establish and maintain public order.

From the perspective of normative nature,the community logically implies some kind of public legal norms or mechanisms,signifying the rights or obligations for the members of the community as a whole therein,as opposed to private law norms or mechanisms,which imply rights or obligations only for the members of a particular community.This,as viewed by a particular member of the community,means both a stronger claim of rights and a stricter evaluation and sanction for breach of obligations.

In the context of domestic law,the public order is established and maintained by public law norms rather than private law norms,which serves as an important reason for the separation of public and private law in domestic law.In the context of international law,where traditional international law is strongly influenced by the spirit of domestic private law and is based primarily on the consent of the State,international law is considered to be “in fact private in nature,or even more private than domestic private law”,32See Public International Law,translated and edited by Shanghai Academy of Social Sciences Institute of Law,Knowledge Publishing House,1981,p.77.(in Chinese)merely “a more advanced form of private law”.33See Hersch Lauterpacht, Private Law Sources and Analogies of International Law,Longmans,Green and Co.,1927,p.81.Hersch Lauterpracht,a master of international law,also holds that international law belongs to the category of private law,if private law is considered to regulate relations between legal entities in a state of cooperation,while public law regulates relations between legal entities in a state of subordination.34Ibid.Recently,there are still scholars of international law who insist that “there is nothing wrong with thinking that the rules of international law have the same characteristics as private law in domestic legal systems”.35Teruo Komori,Introduction,in Teruo Komori &Karel Wellens eds.,Public Interest Rules of International Law:Towards Effective Implementation,Ashgate,2009,p.1.In this paper,traditional international law is referred to as “private international law”.However,as the concept of international community expands in scope and intensity,there is a progressive increase in the number of norms or mechanisms based on the rights or obligations of the community,which is in this paper referred to as “public international law”.36For the systematic demonstration of “private international law” and “public international law”,see CAI Congyan,Separation of Public and Private Law in International Legal System,Peking University Law Review,Vol.12:1 (2011).(in Chinese)Treaties containing such norms,which may be manifested either as treaty norms or as customary norms,are often given the title of “charter”,as in the case of theCharter of the United Nations,or referred to as “l(fā)aw-making treaties”.According to the general principle of public law,the basic value of community and corresponding public legal norms is to protect the weak by using community authority and to deter the strong from abusing their superior power.However,the most successful practice of community so far occurs in domestic societies that have been nationalized and governed by the rule of law,and thus the general assertions about community and public legal norms are based on fairly well-developed experience of domestic law.It is well known that the international community is in general less mature than domestic societies,making it possible in some cases for legal arrangements concerning the international community to be used by its members,especially the strong ones,by way of “use public facility for private purposes”,i.e.,to pursue their own interests in the name of defending the interests of the community.37For the risk of “use public facility for private purposes” in international law,see id,p.62-64.The UNCLOS is known as the “maritime charter”.This means that States Parties thereto may,on the basis of the UNCLOS,enjoy rights and assume obligations consistent with the nature of a global community.38Of course,this does not mean that all the provisions of UNCLOS are of this nature.In view of the above,norms of customary international law,such as freedom of the high seas,have changed from being unable to become norms or mechanisms of public law in the period of “monopoly freedom” and“oligarchic freedom” (during which they are substantially private law norms or mechanisms) to becoming norms or mechanisms of public law in the period of“universal freedom” (which is legally guaranteed by the UNCLOS and made possible by the universal claims and growing capacity of States Parties to use the oceans).Moreover,the UNCLOS establishes treaty norms or mechanisms as norms or mechanisms of public law,in particular the regime of international seabed area,including the International Seabed Authority,based on the principle of the common heritage of mankind.39See Part XI of UNCLOS.It is evident that States Parties to the UNCLOS can exercise their rights more effectively under UNCLOS than under private international law in the general sense,but they will also be more effectively constrained.

Generally speaking,the international community,as well as communities in general,has been used in two senses,sociological and legal.Concerning the former,the Permanent International Court of Justice has elaborated in considerable detail in theGreco-Bulgarian “Communities”case.According to the Court,a community is “a group of persons living in a given country or locality,having a race,religion,language and traditions of their own and united by this identity of race,religion,language and traditions in a sentiment of solidarity,with a view to preserving their traditions,maintaining their form of worship,ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other”.40Greco-Bulgarian “Communities”,PCIJ Publication,Series A,No.10,p.18;PCIJ SeriesB,No.17,p.21.It is in this sense that some scholars of international law understand the international community.Oppenheim’s International Law,for example,argues that before World War I,international community was shaped in large part by the “international sciences and arts” that allowed for the regular exchange of ideas and opinions among peoples,but most importantly by “agriculture,industry,and especially trade”.41Oppenheim’s International Law,Vol.1,Part 1,translated by WANG Tieya &CHEN Tieqiang,The Commercial Press,1981,p.8-9.(in Chinese)

Some scholars of international law,meanwhile,have focused on understanding the international community in a legal sense.For example,in his famous bookThe Power of Legitimacy among Nations,Thomas Franck points out that the international community is basically a “rule community” constructed by international law,42Thomas M.Franck,Power of Legitimacy Among Nations,Oxford University Press,1995,p.202.namely a “l(fā)egal community”.In Franck’s view,a rule community is an organized system of communication based on rules,which goes beyond the “rabble-rousing” communication,43Ib,p.196-197.and yet he notes that this community“does not intend to contain any of the many theoretical definitions put forward by sociologists or anthropologists through induction or deduction.The community is used here purely to indicate the level of complexity of a rule structure,in which a group of actors habitually interact.”44Id,p.201-202.In other words,Franck argues that community in the legal sense is a lower level of community than that in the sociological sense.But in his famous bookFairness in International Law and Institutions,Franck holds that what drives the emergence of international communities “involves not only rights and obligations,but also common moral laws and values”.45Id,p.10.In other words,members of a community bear both moral and legal obligations to each other,which is fairness.46Id,p.11.

According to Franck,although we have not yet reached an international community in this sense,human society is moving toward it as it enters the 21st century with the development of politics,economics,culture,and international law.47Ibid.

Franck’s proposition that the international community in the legal sense and the international community in the social sense develop in a sequential manner is not entirely correct.On the one hand,as Bruno Simma argues,many States may agree to negotiate or join certain international regimes only superficially,48Bruno Simma,Consent:Strains in the Treaty System,in R onald St.J.Macdonald &D ouglas M.Johnson eds.,The Structure and Process of International Law,Martinus Nijhoff,1983,p.480–496.without necessarily identifying themselves with the particular international regime in real terms.In this sense,Franck’s proposition is correct.In the case of the UNCLOS,the fact that a particular State has concluded the UNCLOS does not necessarily imply that that said State fully subscribes to the UNCLOS,especially if it was negotiated in a “package deal” mode.49See Art.309 of UNCLOS.This article stipulates that “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”.In recent years,this “package deal” negotiation model has been increasingly adopted,such as WTO negotiations.While a legal community on the oceans has been formed,it cannot yet be said that a social community on the oceans has been formed.There is a consequence that particular States in some cases will not fulfill the UNCLOS in good faith.On the other hand,despite the interference in the domestic legislative process by factors such as interest groups,domestic legislatures are in general able to respond to a given social consensus.In contrast,international legislation tends to proceed or be completed even when the vast majority of States have developed a basic consensus on a particular topic due to the narrow calculations of interests of large States and the concerns of small States about such calculations of interests by large States.In the case of the proliferation of weapons of mass destruction (WMD) at sea,there is undoubtedly a consensus among States to prevent WMD proliferation,including through the sea.But it is mainly the misgivings of many developing States about the misuse of maritime forces,including military force,by the US and other maritime powers that has held up progress towards international legislation on the issue,and they are reluctant to join theProliferation Security Initiative(PSI) launched by the US in 2003.50See,e.g,.Michael A.Becker,The Shifting Public Order of the Oceans:Freedom of Navigation and the Interdiction of Ships at Sea,Harvard International Law Journal,Vol.46:1,p.131-215 (2005).As a consequence,despite the formation of a global social community on preventing WMD proliferation at sea,the corresponding global legal community has not yet been formed.To put it differently,the consequence is that although a particular State is not subject to international legal obligations due to the non-existence of a particular global mechanism or its failure to join a particular regional/bilateral mechanism,it will bear political,social or moral pressure and thus may in fact have to make concessions.In the case of China’s approach to PSI,despite its refusal to join PSI,China has been compelled to express its approval of PSI’s objectives and51“Ministry of Foreign Affairs:China Endorses PSI Purposes but Has Concerns”,Huanqiu (2 Jun 2009),http://world.huanqiu.com/roll/2009-06/477588.html.(in Chinese)is said to have coordinated in practice with PSI initiatives taken by the United States and other countries.52Supra note 51,Michael A.Becker,p.166.

It should be emphasized that the response of particular States to influences from social communities may be more complex than from legal communities.It is true that particular States,especially large States,may take steps to prevent or impede the formation and operation of a global legal community,whose members are undoubtedly primarily sovereign States,or to refrain from joining a nonglobal legal community,and thus may legitimately avoid their legal obligations.In contrast,it is not only sovereign States,but also -or even primarily -non-State actors,such as non-governmental organizations,that constitute the social community.These non-State actors have become not only numerous but also influential in the context of globalization.It has been shown that they have had a significant impact on the formation and treatment of some major international legal agendas.53A widely cited classic case in this regard is the decisive influence of the “International Campaign to Ban Landmines” on the adoption of the Anti-Personnel Mine Ban Treaty.

C.Structural Relationship between Individualism and Communitarianism in the Public Order at Sea

In view of the fact that the sea is “res communis” and therefore “open to all,”which was formed in the Roman period,especially after the mid-18th century when it was universally recognized and succinctly called “freedom of the high seas”,it seems possible to assume that the public order at sea has existed for a long time and,consequently,that the global maritime community and maritime legal norms or mechanisms of public law are in place.However,as discussed in the previous section on the stages of freedom of the seas,the so-called public order at sea in the periods of “monopoly freedom” and “oligarchic freedom” was based on the concept of individualism,which was not in line with the essence of public order,and was therefore hardly a public order in the true sense.Nevertheless,this particular public order at sea is extremely beneficial to the maritime powers,given the inherent logic of the relationship between the public order at sea,the global maritime community,and the maritime legal norms or mechanisms of public law.It is not hard to find that all the traditional maritime powers to date established their status during these two periods.

This paper holds that it is only in the “era of universal freedom”,featured by the strengthening concept of the oceans by all States,growing oceanrelated problems such as environmental pollution and WMD proliferation,and resurgence of problems such as piracy since the mid-20th century,especially after the adoption of the UNCLOS,that the era of communitarianism-based genuine public order at sea can be said to have arrived.This is mainly reflected in law by the UNCLOS,which not only creates a series of regimes of community concept,but also endows the long-established rules of freedom of the high seas with a truly community character.It can be argued that the center of gravity has shifted in the direction of the latter in the structural relationship between individualism and communitarianism.As the emerging maritime powers have to experience constraints that traditional ones have never experienced,how these constraints are understood and addressed is critical to the success of the emerging maritime powers’ rise.

Nevertheless,the concept of individualism is still present in the establishment and maintenance of the public order at sea as a result of the special nature of the international community.54See the discussion in Part IV (A) &(B) herein.To take an extreme example,the US,by not acceding to the UNCLOS and thus rejecting the international seabed development regime established by UNCLOS based on the concept of community,has attempted to continue to apply the concept of freedom of the high seas that existed during the period of “monopoly freedom” and “oligarchic freedom” in order to achieve its national interests.

IV.Actors in the Public Order at Sea

A.Maritime Great Powers and Small Powers

Similar to the coexistence of the rich and the poor,the strong and the weak,which is the norm in the structure of domestic society,the coexistence of great and small powers,the strong and the weak,is also the norm in the structure of international society.However,in contrast to domestic law,which focuses on defending the weak,international law seems to focus more on defending the interests of the great powers.As a result,international law remains “hegemonic international law”,according to some famous contemporary Western scholars of international law,regardless of the constant criticism on the manipulation of international law by Western powers55See ZHOU Gengsheng,International Law,Wuhan University Press,2007,p.163-164,251-260 (in Chinese);J.H.W.Verzijl,International Law in Historical Perspective,Springer,1968,p.435-443.from the vast number of developing States in the status of small or weak States including China.56See Detlev F.Vagts,Hegemonic International Law,AmericanJournal of International Law,Vol.95:4,p.843-848 (2001);José E.Alvarez,Hegemonic International Law Revisited,American Journal of International Law,Vol.97:4, p.873-888 (2003);José E.Alvarez,International Organizations as Law-Makers, Oxford University Press,2005,p.99-217.Nevertheless,given the interest and functional considerations,granting special rights to the great powers in the practice of international law is justified not only for the great powers but also for the international community as a whole.Meanwhile,despite the fact that the great powers are the leaders of the community of nations,the history of international law shows that progressive proposals therein are mostly made by small powers.57See CAI Congyan, The Great Power Issue in International Law,Chinese Journal of Law,Vol.34:6,p.188-206 (2012).(in Chinese)

In terms of the public order at sea,the maritime great powers almost completely controlled the shaping of public order in the period of “monopoly freedom” and “oligarchic freedom”,58As mentioned above,it is hard to say that the public order at sea in these two periods is the real public order.leaving the role of maritime small powers almost negligible,which is actually a fundamental feature of international law throughout the modern era.59According to Hersch Lauterpacht,“In terms of theory and practice,the view that the civilization of Christian nations,especially Western nations,contributed almost entirely and decisively to the generation and development of modern international law in the 17th,18th and 19th centuries is generally an accurate reflection of historical facts.” See Elihu Lauterpacht ed.,International Law:Being the Collected Papers of Hersch Lauterpacht,Vol.1,Cambridge University Press,1978,p.118.Since the mid-20th century,and especially since the Third United Nations Conference on the Law of the Sea,this situation has changed significantly,with maritime small powers playing an increasing role in shaping the public order at sea:

First,the important claims to public order at sea made by some maritime small powers were supported by the vast number of developing States that far outnumbered the developed ones,thus exerting strong political,moral and legal pressure on the maritime great powers.In this regard,there is a classic example,namely the “common heritage of mankind” proposed in 1970 by Pardo,Malta’s permanent representative to the United Nations.As is well known,the US and other developed States have attempted to extend the traditional principle of freedom of the high seas to the exploitation and utilization of international seabed resources.This has resulted in most of the traditional maritime great powers being forced to accept the principle of the common heritage of mankind in the UNCLOS and the international seabed regime constructed thereunder.While the US,which led the Third United Nations Conference on the Law of the Sea,has shown its “power” by refusing to accede to UNCLOS even after significant changes to Part XI thereof,this demonstrates,in another sense,that the maritime small powers have become far more important in shaping the public order at sea than they were in the past.

Second,maritime small powers have access to more effective procedural mechanisms to implement their claims or rights to public order at sea,especially in other games with maritime great powers.These procedural mechanisms mainly refer to the dispute settlement mechanism provided for in Part XV of the UNCLOS.Article 286 thereof provides that,subject to specific limitations and exceptions,60See Part XV,Sections 1 &3 of UNCLOS.“any dispute concerning the interpretation or application of this Convention” shall be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.That is,this article provides for the compulsory jurisdiction of international adjudicative bodies such as the International Court of Justice.While other procedural mechanisms with compulsory jurisdiction have existed previously or contemporaneously,such as the Security Council acting on behalf of all Member States under Chapter VII of the UN Charter,61Although the Charter of the United Nations does not provide for the Security Council as a dispute settlement body,but rather an “enforcement” body,the Council’s adjudication function is widely recognized.the international investment arbitration mechanism established under theSettlement of Investment Disputes between States and Nationals of Other States,and the international trade dispute settlement mechanism established under theAgreement Establishing the World Trade Organization (WTO),the UNCLOS may be the only international dispute settlement mechanism with compulsory jurisdiction for issues involving so-called “advanced politics” in a state of peace.This procedural mechanism is clearly exemplified by the Philippines’ resort to an international arbitral tribunal against China over the South China Sea dispute.

It is easy to see that the dispute settlement mechanism under the UNCLOS deals mainly with disputes concerning public order at seas,especially freedom of navigation and overflight,as well as the laying of submarine cables and pipelines.62See Art.297,para.1 of UNCLOS.However,not all disputes concerning public order at sea are subject to compulsory jurisdiction.63See Art.297,para.2,and Art.298 of UNCLOS.Disputes not directly related to the public order at sea,such as territorial sovereignty,are excluded from compulsory jurisdiction.64See Art.298,para.1(a) of UNCLOS.Third,the practice of international relations shows that small powers often make strategic use of conflicts between great powers in order to safeguard their own interests,65See generally August Schou &Aren Olav Brundtland eds.,Small States in International Relations,Wiley Interscience,1971;Davil Vital,The Survival of Small states:Studies in Small Power/Great Power Conflict,Cambridge University Press,1971.and the neutral State system in international law is one of them.As is well-known,the disputes between China and a few neighboring States in the South China Sea in recent years,such as the Philippines,over the use of resources in the South China Sea,are largely a result of the small maritime small powers such as the Philippines taking advantage of the structural contradictions between the established great power US and the emerging power China,in an attempt to use various means,including the dispute settlement mechanism of the UNCLOS,to maintain freedom of navigation and other public order at sea as an important claim to pursue their own national interests in the South China Sea region.

B.Established and Emerging Maritime Great Powers

In his famous bookThe Rise and Fall of the Great Powers,Paul Kennedy made a profound analysis of the rise and fall of great powers over the past five centuries since the 16th century,arguing that economic factors fundamentally determined the rise and fall of great powers,and that changes in economic strength led to changes in military strength,which in turn led to changes in overall national strength.66Paul Kennedy,The Rise and Fall of the Great Powers,Vintage Books,1989.The history of the rise and fall of great powers demonstrates that the rise and fall of maritime powers is an important part of the rise and fall of great powers,and is even the main symbol of the rise and fall of great powers.The history of international law shows that the rise and fall of great powers have a great influence on the evolution of international law,according to which international law may either enter a period of turbulence or enter a new stage of development.67Wilhelm G.Grewe,The Epochs of International Law,translated and revised by Michael Byers,Walter de Gruyter,2000.

It is clear from the history of the established law of the sea that until a particular State becomes a maritime great power,it is likely to hold different or even opposing positions on the public order at sea from those of the established maritime great powers,but that its positions tend to converge with those of the established maritime great powers as its maritime strength grows.From China’s point of view,an excellent case in point is the changing position of the former Soviet Union on the issue of whether innocent passage within the territorial waters includes the passage of foreign warships without the prior approval of the coastal State.In the 1950s,the former Soviet Union held the position that innocent passage within the territorial waters as a rule of customary international law covered only innocent passage by merchant ships,excluding passage by foreign warships without prior approval of the coastal State.However,during the Third United Nations Conference on the Law of the Sea,the former Soviet Union reversed its position and held that the regime of innocent passage within the territorial waters applied to foreign warships.This was significantly due to the fact that,the former Soviet Union,despite its long coastline,was primarily a continental State with not very strong maritime strength until the 1960s.The Cuban missile crisis of 1962 spurred the former Soviet Union to embark on a major naval development effort.The 1970s saw a surge in former Soviet Union’s naval strength.The former Soviet Union changed its position on innocent passage due to the need to confront the US.Nevertheless,theRules Concerning the Navigation and Sojourn of Foreign Vessels in the Territorial Waters (Territorial Sea) of the U.S.S.R.,the Intenal Waters and Ports of the U.S.S.R.adopted in 1983 were unclear in adopting this new position.As a result,when the US warships Yorktown and Caron entered the territorial waters of the Crimean Peninsula of the former Soviet Union in 1986,the former Soviet Union made a strong protest,but the legal basis for the protest was unclear.In February 1988,when the US again sent warships into the territorial waters of the former Soviet Union,the former Soviet Union’s warships directly rammed them,resulting in damage to both warships.This time,the former Soviet Union made it clear that foreign warships could sail only through the lanes designated for international navigation under its current law,namely the lanes in the Bering Sea,the Sea of Okhotsk and the Sea of Japan,and that no such lanes existed in the Black Sea.However,in September 1989,the former Soviet Union and the US signed a joint declaration containing theUniform Interpretation of Rules of International Law Governing Innocent Passage,which fundamentally accepted the US position that the innocent passage regime applied to the passage of warships.68See Eric Franckx,Innocent Passage of Warships:Recent Developments in US-Soviet Relations,Marine Policy,Vol.14:6,p.484-490 (1990);William E..Butler,Innocent Passage and the 1982 Convention:The Influence of Soviet Law and Policy,American Journal of International Law,Vol.81,p.331-347 (1987);Anthony P.Allison,The Soviet Union and UNCLOS III:Pragmatism and Policy Evolution,Ocean Developmentand International Law,Vol.16,p.109 (1986).It is noteworthy that the Preparatory Committee set up by the Council of the League of Nations to hold the Conference for the Codification of International Law in 1930 once sought the opinions of all States on whether the innocent passage regime should apply to warships in territorial waters,and the US replied firmly that warships were not entitled to the innocent passage regime.On the contrary,the position of the former Soviet Union,as explained to the Preparatory Committee at that time,was that the innocent passage regime should apply to warships.69Id,p.485.The reason for the differences between the US and the former Soviet Union at that time was actually the same as those in the 1950s and 1960s,i.e.,the US was not yet able to dominate the world at sea in the 1930s,and the former Soviet Union at that time probably still had a powerful navy built during the period of Tsarist Russia.

As is known,there existed many differences between some developing States,such as China,India,Brazil,Chile and South Africa,which were weak maritime powers at that time and are now emerging maritime powers,and the established maritime powers,such as the US,on the issue of public order at sea during the Third United Nations Conference on the Law of the Sea.In the case of foreign military activities in the EEZ,established maritime powers such as the US argue that the EEZ is subject to the traditional rules of freedom of navigation as a rule of customary international law,and therefore foreign warships have the right to operate in the EEZ.On the other hand,States such as India and Brazil have explicitly expressed their opposition and made relevant declarations to this effect upon accession to the UNCLOS,and have reflected this position in their relevant domestic laws.After the adoption of the UNCLOS,several developing States protested against the activities of US warships in their EEZs.Notably,the US argued that Article 56 of the UNCLOS is exhaustive in provisions with respect to the rights of coastal States in the EEZ,and that most States have not protested the activities of US warships,so the claims of such States as India and Brazil are excessive claims in violation of the UNCLOS.70See J.Ashley Roach &Robert W.Smith,Excessive Maritime Claims (Third Edition),Brill Nijhoff,2012,Chapter 7.

While China did not make similar claims on its accession to the UNCLOS as States like India did,the conflicts arising therefrom between China and the US—from the battleplane crash in the South China Sea in 2001 to the USNS Impeccable incident in 2009—are the most serious of similar conflicts between the US and other States on this issue.

If the historical experience of the US and the former Soviet Union described above—not to mention the UK’s shift from the “closed sea” in the 17th century to the comprehensive freedom of the seas in the 18th century—is followed,the emerging maritime powers in the 21st century,such as China and India,will inevitably choose to align themselves with the claims of established maritime powers,such as the US,in terms of the public order at sea,inasmuch as,intuitively,the traditional concept and institution of public order at sea are favorable to the maritime powers.Even if UNCLOS provides for a more favorable regime than before for the weak maritime and landlocked States,and indeed for the international community as a whole,there are many ambiguities therein that could provide room for the maritime great powers to interpret it in their favor.This shift therefore appears not to be difficult for countries such as China and India,in terms of legal technology.

Despite insisting on that national interest remains the basic logic of a State’s actions in contemporary international relations,this paper also holds the opinion that emerging maritime powers in the 21st century may suffer from a series of factors that are more complex than before in the process of adjusting the traditional claims to public order at sea,such as the change in the relationship between the maritime great powers and small powers,the evolution in the governance pattern of the public order of the oceans,and the overall international legal strategy of the particular maritime powers.71See Part V herein.

C.Public and Private Actors

It was only in the 1990s,after the rapid development of globalization,especially the process of economic globalization,that the role of private actors in international law,both positive and negative,was systematically concerned by scholars of international law and thus became an important issue in the practice of many States.The exception,however,existed,and that was the impact of piracy on international law.Piracy was widespread as early as the emergence of modern international law and reached a “golden age” in the late 17th to early 18th centuries,since when,however,the threat of piracy has generally tended to decline.72David F.Marley,Modern Piracy:A Reference Book,ABC-CLIO,2010,p.6-7.The main reason lies in the dramatic increase in the maritime strength of States as public actors.Moreover,universal jurisdiction over piracy by any State is established as a rule of customary international law.Accordingly,it could be argued that for a long time after the 18th century,private actors were not important to the law of the sea.

As in other areas of international law,there has been a marked increase in threats to the public order at sea by private actors since the end of the Cold War,as evidenced by the re-emergence of the threat of piracy and the utilization of private actors by international terrorist organizations and even sovereign States to engage in acts that threaten the public order at sea,such as WMD proliferation,oil spills and other serious marine pollution.There are two main reasons for this situation:first,the capacity of private action has been significantly improved.For example,pirates’ operational capabilities have been expanded by acquiring high-performance equipment through various means,thus posing a broader and more serious threat to public order at sea.Second,sovereign States have a relatively dysfunctional capacity to act.In the 1990s,for example,Somalia collapsed into anarchy following the prolonged internal armed conflict and due to other causes,and was unable to exercise effective jurisdiction over its territorial waters,leaving the waters off Somalia as a major high-risk area for piracy.In addition,piracy resurfaced as the US and the former Soviet Union withdrew their maritime forces from the Indian Ocean at the end of the Cold War.In the absence of effective regulation,the “flag of convenience” system came to be abused by private actors.

Against this backdrop,sovereign states are increasingly “moving” to or“returning” to the oceans.Since there is basically no “favoring one over the other”situation regarding the threats posed by private actors to the public order at sea,it is easier for States to agree and cooperate effectively in curbing and punishing private actors’ actions against the public order at sea,such as the international cooperation among States on anti-piracy issues.73See LI Wenpei,A Study of Piracy in the International Law of the Sea,Law Press,2010,Chapter 4.(in Chinese)

In general,scholars of international law have focused more on the conflicting relationship between public and private actors in the public order at sea,and less on the possible cooperative relationships between them.In the light of my research on the theory and practice of relationship between public and private actors in international law,74See CAI Congyan,Public-Private Separation,Public-Private Cooperation and Public-Private Conflict:Epistemological Reconstruction and New Developments in International Law,China Legal Science,Vol.32:1,p.187-206 (2015).(in Chinese)it is both possible and necessary to strengthen their cooperation in maintaining the public order at sea.Probably due to a lack of a full understanding of the relationship between public and private actors in international law,not enough attention seems to have been paid to the IMO’s new work on the use of private maritime security companies in high-risk areas to counter the threat of piracy.75See,e.g.,IMO,Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,MSC.1/Circ.1443,25 May 2012;Revised Interim Recommendations for Flag States regarding the use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,MSC.1/Circ.1408-Rev.1,25 May 2012;Revised Interim Recommendations for Flag States regarding the use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,MSC.1/Circ.1406-Rev.2,25 May 2012;Revised Interim Guidance to Ship owners,Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,MSC.1/Circ.1405/Rev.2,25 May 2012.

V.Governance Pattern of the Public Order at Sea

The bookHow Nations Behaveby the eminent international jurist Louis Henkin,first published in 1968,even when the Cold War was raging,opened with a widely quoted and,as practice shows,increasingly accurate assertion:“In relations between nations,the progress of civilization may be seen as movement from force to diplomacy,from diplomacy to law.”76Louis Henkin,How Nations Behave,Columbia University Press,1979,p.1.In general,both force and diplomacy are based on national strength,so it is advisable to discuss the legal modalities of the public order at sea in terms of both strength and rule of law.

A.Strength

The strength of a State values more significantly for the establishment and maintenance of the maritime order than for the terrestrial order.This is due to the fact that following the establishment of sovereign States in the modern era,the terrestrial part of the earth was first and mainly incorporated into the jurisdiction of sovereign States by treaty,thereby essentially “privatizing” the terrestrial part.The maritime part of the earth,by contrast,are mostly subject to the freedom of the high seas and are therefore not under the jurisdiction of sovereign states.Moreover,the rules of customary international law are overwhelmingly dominant in regulating the high seas order.The global treaty-based process of the high seas order began with the First United Nations Conference on the Law of the Sea held in the 1950s.Notoriously,the practice of customary law—whether regulation creation or rule application—is generally more dependent on the strength of States than treaty law practice.

Despite that the UNCLOS has largely regulated the maritime order with treaty means,there are at least four factors that contribute to the vital role of State strength playing in the evolution of the public order at sea:First,although the rules of customary international law,such as the freedom of the high seas,were culturally realized through the UNCLOS,these rules have not lost their status as independent sources of international law.In particular,the rules of customary international law still apply to States such as the US that have not yet acceded to the UNCLOS.It is clear that the rules of customary international law,such as the freedom of the high seas,which were formed centuries ago,cannot be completely “frozen” in history,but may,and even must,evolve in response to the development of international relations.In this evolution,State strength will undoubtedly continue to play an important role.Second,viewed from the perspective of treaty law,UNCLOS still contains what might be called “constructive ambiguity”,such as the meaning of“peaceful purposes”.In clarifying these ambiguities,State strength will inevitably play an important role as well.Third,the international implementation mechanism of the UNCLOS is not yet sufficiently effective and may not even be very reliable,77See the discussion in Part VIII herein.making it possible for a particular State,especially a maritime great power,to use its strength to move the public order at sea in its favor,and not without justification.Fourth,as noted earlier,China and other emerging maritime powers are on the rise,which is inevitably accompanied by the use of State strength to establish or maintain the public order at sea they claim.

The use of strength by States takes many different forms.As the traditional use of force has been severely limited in the UN era,political means have become the primary way by which States exercise their strength.For example,given that negotiations are more conducive to maritime powers leveraging their strengths,maritime powers may focus on negotiating the public order at sea,including the settlement of international disputes.

Judging from the value,it may be both legitimate and illegitimate to leverage State strength in the establishment and maintenance of public order at sea.With respect to the topics discussed in this section,it is noted that the exercise of State strength is governed more than ever by the rule of law.In a nutshell,the rule of law is the biggest variable affecting the exercise of State strength.

B.Rule of Law

While Henkin’s assertion that international relations were moving toward the rule of law was made as early as the 1960s,the role of international law in international relations was greatly constrained in the context of the Cold War,which explains the emergence of the so-called “policy-oriented school” or “New Haven school” in American international jurisprudence circle after the late 1950s.The said role saw a significant enhancement after the end of the Cold War.On 9 January 1990,the UN General Assembly adopted Resolution 44/23 entitled United Nations Decade of International Law,which conveyed the universal aspiration of the international community to pursue the rule of law.This Resolution states a conviction by the General Assembly of the “need to strengthen the rule of law in international relations”.The 2005World Summit Outcomespecifies the need for“universal adherence to and implementation of the rule of law at both the national and international levels”.782005 World Summit Outcome,A/RES/60/1,16 Sept 2005,para.134.The international rule of law has been challenged on several occasions since the end of the Cold War,such as the Iraq War in 2003,yet it should be recognized as an unstoppable historical trend.The rule of law,including the international rule of law,has,in fact,become as universal a value as democracy and human rights are now,and it would be unwise for any State to deny or challenge it.

Judging from national interests,the rule of law in the public order at sea may not necessarily be good for the emerging maritime powers,given the difficulty for them to use their strength more freely to pursue their national interests as the historical maritime powers have done.Other States,especially maritime small powers,can use,or even abuse,international law to prevent the rise of emerging maritime powers.In this sense,the Chinese government is right to warn that relevant States “should avoid overstepping their authority in interpreting and applying international law.Still less should they encroach on the rights and interests of other countries under the pretext of ‘the rule of law’ in total disregard of objectivity and fairness”.79See WANG Yi:China,a Staunch Defender and Builder of International Rule of Law,People (24 Oct 2014),http://world.people.com.cn/n/2014/1024/c1002-25903195.html (in Chinese);Ministry of Foreign Affairs of the People’s Republic of China,Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,MFAPRC (7 Dec 2014),https://www.mfa.gov.cn/web/ziliao_674904/tytj_674911/201412/t20141207_7948472.shtml.(in Chinese)This phenomenon is the so-called “risk of global legalism”.80See Eric A.Posner,The Perils of Global Legalism, University of Chicago Press,2009.But in any case,the international rule of law will pose a long-term challenge for emerging maritime powers.

VI.Legal Modalities of the Public Order at Sea

In terms of normative types,the laws governing and regulating the public order at sea can be divided into international law and domestic law.

A.International Law

Considering the limited claim by sovereign States to territorial sovereignty(territorial waters) or sovereign rights (contiguous zone,EEZ,etc.,outside the territorial waters) over a relatively small sea area,the dominance of international law in regulating the public order at sea is undoubtedly necessary,and the global and authoritative nature of the UNCLOS,known as the “maritime charter”,must be respected and maintained.Failure thereto will inevitably result in the relevant States arbitrarily expanding their jurisdiction or even claiming territorial sovereignty,thus causing great damage to the public order at sea.

It is clear that international law cannot regulate the public order at sea effectively and fairly.In many cases,however,domestic law can and must play a positive role.

B.Domestic Law

There are two reasons for the need to proactively pursue the role of domestic law in regulating public order at sea:

First,there are many ambiguities or gaps existing in international law,including the UNCLOS,whether treaty provisions or treaty-based international custom,which need to be clarified or supplemented.Besides international legislation,domestic legislation is also a means of clarifying these ambiguities,which is especially necessary in cases where international legislation has failed.Notwithstanding the fact that the domestic legislation may be inappropriate under subsequent international legislation,or even found to be contrary to international law by international adjudicative bodies such as the International Court of Justice or the United Nations Tribunal for the Law of the Sea,it cannot be taken for granted that such domestic legislative acts are malicious.Unless,in other words,in violation of established provisions of international law,including the UNCLOS,the domestic law enacted by a State covers elements that are not provided for in such international law,or clarifies elements that are ambiguous,there is no difficulty in considering such domestic legislation to be malicious or even illegal.

Second,there is a lack of sufficiently comprehensive and effective enforcement mechanisms for international law,including the UNCLOS,resulting in their empowerment of sovereign States to implement the provisions of international law through domestic legislation.For example,under Article 58(3) of UNCLOS,coastal States may “enact laws and regulations in so far as they are not incompatible with this Part in accordance with the provisions of this Convention and other rules of international law”.

The wave of domestic maritime legislation has been witnessed in many maritime States since the 1990s,followed by more active domestic legislation or legislative planning activities entering the 21st century.Judging from national interests,domestic legislation serves both to exercise the rights granted by international law,including the UNCLOS,and to fulfill the obligations imposed by thereunder.It serves both to safeguard current national interests,especially against the domestic legislation adopted by other States that undermines others’national interests or violates international law,and to take the initiative in the future legislative process of international law.Seen from the public order at sea,domestic legislation can provide important national practice for relevant international legislation in the future.Seen from the international law studies,comparative international law is a new research direction in the European and American international law circles,which aims to investigate the diversified understandings of various States on specific international law regimes.In this sense,the comparative law of the sea should constitute an important part thereof.

VII.Regulatory Methodology of the Public Order at Sea

A.Rule Making

As membership in the international community grows,the democratization of international relations advances,and the transparency of a State’s external affairs enhances,there is a growing difficulty with multilateral international law-making,whether treaty-based or customary.The evolution of the multilateral trading system serves as an extremely compelling example.Since theGeneral Agreement on Tariffs and Trade(GATT) came into force in 1948,GATT/WTO has gone through nine rounds of negotiations.Not surprisingly,the duration of each round of negotiations has become longer and longer as the membership in GATT/WTO has expanded and the issues have increased,with the latest round of negotiations,the Doha Round,which started in 2001,still not completed after 13 years.

The UNCLOS is amended in a similar manner.Under Article 312,paragraph 1,of the UNCLOS,after the expiry of a period of 10 years from the date of entry into force of this Convention,a State Party may,by written communication addressed to the Secretary-General of the United Nations,propose specific amendments to this Convention,other than those relating to activities in the Area,and request the convening of a conference to consider such proposed amendments.If,within 12 months from the date of the circulation of the communication by the Secretary-General,not less than one half of the States Parties reply favorably to the request,the Secretary-General shall convene the conference.As provided for in Article 313,paragraph 2 thereof,if,within the said period,a State Party objects to the proposed amendment,the amendment shall be considered rejected.To date,however,no amendment has occurred thereto.

International legislation at the regional level is much more active than multilateral legislation which has largely failed to get off the ground or to be completed.In the case of the international trade system,while multilateral trade negotiations are in deadlock,regional trade agreements have proliferated in the last decade or so,and the international trading system has shifted to some extent from multilateral law-making to regional law-making.The UNCLOS also provides for a regional law-making mechanism.Under Article 311,paragraph 3 thereof,“Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention,applicable solely to the relations between them,provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention,and provided further that such agreements shall not affect the application of the basic principles embodied herein,and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.” As demonstrated by practice,the recent regional maritime law-making has yielded considerable fruits,such as regional anti-piracy agreements,fisheries agreements,etc.

Notably,the recent international theories and practices suggest that81See generally Joost Pauwelyn,Ramses A.Wessel &Jan Wouters eds.,,Informal International Lawmaking,Oxford University Press,2012;Ayelet Berman,SanderijnDuquet,Joost Pauwelyn,Ramses A.Wessel &Jan Wouters eds.,Informal International Lawmaking:Case Studies,Torkel Opsahl Academic Epublisher,2012.the international regulation-making refers not only to acts that generate explicit international legal rights and obligations,especially the conclusion of treaties,but also,and more often,to acts that,while not creating explicit legal rights and obligations,can provide clear guidelines and norms for the conduct of the States concerned.This phenomenon,which can roughly be described as “soft law” practice,has been of public interest since the late 1970s.Recent years have seen a marked increase in such practices based on functionalism rather than formalism.In addition to the aforementioned difficulties facing the recent formal international law-making,the extreme complexity of the public order at sea has also led to the increased application of the informal international law-making.The US,for example,has no intention of making the PSI program it initiated a formal international treaty.

B.Interpretation of Rules

In quite a sense,the focus of international law practice is shifting from law-making to interpretation against the backdrop of increasing difficulty but decreasing efficiency of international law-making.This is precisely the reason why some Western scholars of international law are currently engaged in the study of “comparative international law” as mentioned earlier.In addition to helping to make clear the meaning of established rules of international law,especially customary international law,interpretation may also contribute to the making of new international law,or even constitute de facto international law-making itself.Given the extreme complexity of the public order at sea,there is little likelihood of new international law-making,especially multilateral law-making,in the near future,while there is a particular need to focus on the role of interpretation in the evolution of the rules of international law relating to the public order at sea.

Rules can be interpreted by multiple subjects and within multiple mechanisms,including,in particular,sovereign States and international dispute settlement bodies.To begin with,sovereign States can adopt interpretation in the form of domestic legislation.They can undertake a very broad interpretation of the UNCLOS based on Article 300 thereof on the exercise and fulfillment of rights by States Parties in good faith,Article 301 on the peaceful uses of the seas,and Article 310 on the harmonization by States Parties of their domestic law with the Convention.Moreover,international dispute settlement bodies can adopt interpretation through adjudication of disputes.It is well known that since the 1990s,there has been an overall tendency of “judicial activism” in the adjudication practice of international dispute settlement bodies,including the International Court of Justice,the WTO Dispute Settlement Body,and the International Investment Arbitral Tribunal,which have not only adjudicated disputes directly,but de facto developed international law through legal interpretation of the adjudication process,even causing alarm among sovereign States.82See generally Ingo Venzke,How Interpretation Makes International Law:On Semantic Change and Normative Twists,Oxford University Press,2012.As for international dispute settlement bodies adjudicating maritime disputes,the recent years have witnessed a gradually growing trend in the originally small number of cases involving the International Tribunal for the Law of the Sea,etc.,which are also increasingly related to the issue of the public order at sea.In this regard,high priority should be given to the legal interpretation of international dispute settlement bodies such as the International Tribunal for the Law of the Sea and their impact on the public order at sea.Accordingly,emerging maritime powers should increase their participation in or influence over such international dispute settlement bodies,rather than shutting the eyes to them.In this sense,Chinese Foreign Minister Wang Yi raised right warning that relevant international judicial bodies should “should avoid overstepping their authority in interpreting and applying international law.Still less should they encroach on the rights and interests of other countries under the pretext of ‘the rule of law’ in total disregard of objectivity and fairness”.83WANG Yi:China,a Staunch Defender and Builder of International Rule of Law,People (24 Oct 2014),http://world.people.com.cn/n/2014/1024/c1002-25903195.html. (in Chinese)

VIII.Conclusion

The particularity of the oceans and their governance order has made it critical for a State to accurately understand the public order at sea in order to establish,maintain,and enhance its voice in ocean affairs.This is especially true for the emerging maritime powers.To accurately understand the public order at sea,States cannot disengage from the theory and practice of general international law,failing which there may be deviations not only in the understanding of the said public order,but also in the response to specific issues of the public order at sea.The maritime security concerns may be triggered in a way related to or unrelated to the exercise of maritime rights and freedom,and States are more likely to reach cooperation in responding to the former,but less so in the latter.

Oceans have hitherto witnessed three stages of freedom:monopoly,oligarchic and universal.This evolution has exerted a profound influence on the elements,ideological foundation,structure of actors,governance pattern,regulatory methodology,etc.,of the public order at sea.

Freedom of the seas in times of monopoly and oligarchy was not the freedom in its true sense,but one based on individualism.The emergence of “universal freedom” reinforced the concept of community,which in turn contributed to the emergence of international law norms of public law.Normally,the individualismbased public order at sea is favorable to the maritime powers,while the communitarianism-based one is unfavorable to them.China and other emerging maritime powers should strive to lead the building of a maritime community and avoid being placed in opposition thereto.

In the wake of an ongoing step into the community era in terms of the public order at sea,important changes have arisen in the relationship between actors in the public order at sea,including maritime great powers and small powers,established maritime powers and emerging maritime powers,and public actors and private actors.It is therefore particularly important for emerging maritime powers such as China to gain an accurate understanding of these changes.

In terms of governance pattern,State strength can exert a greater effect inshaping the public order at sea than in the terrestrial area.Nevertheless,a move toward the rule of law in international relations is inevitable,with the rule of law becoming the new governance paradigm for the public order at sea.In their rise to maritime prominence,the emerging maritime powers of the 21st century,such as China,have to be subject to greater constraints by the international rule of law than the established maritime powers,regardless of the potential for abuse of the rule of law.

In terms of legal form,international law cannot regulate the public order at sea effectively and fairly in a complete way.In many cases,however,domestic law can and must play a positive role.Domestic legislation serves both to exercise the rights granted by international law,including the UNCLOS,and to fulfill the obligations imposed thereunder and clarify the UNCLOS.It serves both to safeguard current national interests,especially against the domestic legislation adopted by other States that undermines others’ national interests or violates international law,and to take the initiative in the future legislative process of international law.Seen from the public order at sea,domestic legislation can provide important national practice for relevant international legislation in the future.It is therefore important for emerging maritime powers such as China to give high priority to domestic maritime legislation.Accordingly,it is necessary for China to conduct systematic comparative study of the law of the sea.

In terms of regulatory methodology,against the tendency of increasing difficulty but decreasing efficiency of rule-making,it is necessary to understand rule-making innovatively.That is,rule-making should embrace both narrow forms of international law-making,i.e.,treaties and customs,and informal lawmaking that provides clear guidelines and norms for action.Nevertheless,regional international law-making has greater possibilities than multilateral international law-making.Meanwhile,a high priority should be given to the influence of interpretation of rules through,for example,domestic legislation and adjudication activities of international dispute settlement bodies,on the public order at sea.