The United States's Strategies in Shaping a Legal Order for the Seas outside the United Nations Convention on the Law of the Sea
【中文摘要】《联合国海洋法公约》为海洋制定了法律秩序，但作为世界最强大的海权国家，美国至今没有加入该公约。尽管现在美国政府积极推动加入公约，但其复杂的国内政治、高度分化的国内舆论使得其在很长时间内难以完成这个任务，这就使美国在公约之外塑造对其有利的海洋秩序，为美国享有海洋权益寻找一种法律基础。美国主要通过三种策略来塑造海洋秩序:习惯法主张、航行自由计划、在“防扩散安全倡议”框架下签订双边船舶登临协议去超越传统的海上管辖权, 三者分别对应着权利基础、显示武装力量去维护和强化该权利基础的国家实践、重建对海上船舶管辖权制度的企图。美国实施的“航行自由计划”还导致其与中国发生了争端。如果说促使美国试图塑造新的海洋秩序的主导动机有什么特点的话，那首先是它反映了美国在世界总体权力结构中的主导地位，其次是它以海洋自由为核心，不过还融合了反恐、防扩散领域中的美国利益。 【Abstract】The United Nations Convention on the Law of the Sea has established a legal order for the seas. The U.S. however, as a major maritime power, is not a party to the Convention. Though the current U.S. government has been positively promoting its accession to the Convention, due to the complexity of its domestic politics and highly divided domestic opinions on the accession, it is difficult for the U.S. to join the Convention in the foreseeable future. It is, therefore, necessary for the U.S.5 taking consideration of its national interests, to shape a favorable legal order for the seas outside the Convention, in order to have a solid legal ground to justify its maritime rights and interests. Generally speaking， the U.S. has employed three strategies in pursuing this goal: making claims based on customary international law, enforcing the Freedom of Navigation Program (FNP), and concluding bilateral ship-boarding agreements with other States under the framework of the Proliferation Security Initiative in order to go beyond the traditional jurisdictions at seas. Correspondingly, these strategies represent the legal basis of its rights, State practices where such basis of rights is maintained and reinforced through a display of armed forces and the attempt to reshape the regime of jurisdiction over ships at sea.Consequently, the U.S.'s FNP has led to the Sino-U.S. disputes. Regarding the leading motives driving the United States to shape a legal order for the sea, one can notice that: first, such motives are a reflection of its leading status in the overall power structure of the world. Second, having the freedom of the sea as its core belief, the U.S. has also considered its national interests in the field of anti-terrorism and the prevention of proliferation of massive destructive weapons.