On the Term of International Waters Used by the United States and Self-Claimed Legal Grounds for Its Conducts at Sea

MOU Wenfu ； CHEN Jueyu ； HAN Yuchen ； HUANG Yuxin

《中华海洋法学评论》 44期 (2022/12) Pp. 21-50

摘要

"International waters" is a spatial concept powerfully pushed by the United States, a concept connoting an entire undifferentiated maritime space, one by which the United States (the U.S.) disregards the zonal division in modern law of the sea. This article aims to employ Carl Schmitt's Grossraum to interpretate U.S.'s concept of international waters in its maritime strategy. Based on the concept of international waters, the U.S. has maximized the right to freedom of navigation at each part of the ocean, and intended to constrain the maritime jurisdiction of coastal States. It is argued that the U.S. has been constructing a Schmittian maritime Grossraum order, a variant of Schmittian Grossraum in that it is extended to the whole maritime space, in which freedom of navigation is the dominating ideology. Just as what Schmitt's Grossraum embodies, the U.S.' maritime Grossraum order is essentially to maintain its maritime hegemony. The U.S.' unilateral interpretation of the law of the sea, its Freedom of Navigation Program and its recent turn in its Arctic policy can better be understood within this framework. However, the concept of international waters and relevant U.S. conducts are incompatible with modern law of the sea and the fundamental principles of international law embodied in the United Nations Charter.

關鍵字

International waters ； Freedom of navigation ； Law of the sea ； Carl Schmitt ； The Arctic ； Grossraum