On the Application of"Due Regard"Obligation in Maritime Temporary Warning Zone
The"due regard"obligation reflected in the United Nations Convention on the Law of the Sea serves as the legal basis of establishing maritime temporary warning zone in the exclusive economic zone and on the high seas,but specific standards need to be examined and determined.It can be concluded by analyzing recent decisions of international judicial bodies on the"due regard"obligation and summarizing national practices in relation to mar-itime zone that,when declaring a temporary warning zone,the"due regard"obligation requires a state to take due account of the legitimate use of sea by other states,which includes restricting the location,extent and duration of maritime temporary warning zone,avoiding the establishment of large-scale zone in key locations,fulfilling the obli-gation of prior notice,distinguishing"warning zone"from"no-navigation zone",and avoiding the imposition of re-strictions on navigation on the basis of warnings.Furthermore,the"due regard"obligation requires the state affected by maritime temporary warning zone to have due regard to the right of other states establishing maritime temporary warning zone and refrain from interfering with their activities,the state establishing maritime temporary warning zone may take reasonable measures to ensure the enforcement of their missions.When the declaring state has fulfilled all the obligations mentioned above,including prior notification,appropriate warning and limitation of the extent of the area,the vessels entering into the maritime temporary warning zone without consent shall undertake risks of potential damages independently,but the declaring state still needs to refrain from taking direct coercive measures to restrict or prohibit freedom of navigation.If such vessels'unauthorized entry into maritime temporary warning zone makes it impossible to implement the tasks or missions,the declaring state may take necessary measures to prevent it,and when the vessels'conduct is attributable to a state,it may also be held accountable for violating the obligation of"due regard"by that state.Article 25 of the Coast Guard Law reflects one aspect of the obligation of"due re-gard",which emphasizes the imposition of certain restrictions on the activities of foreign vessels in the relevant mari-time areas,but lacks the other aspect,which requires the responsible legal regulation of maritime temporary warning zone with due regard for the maritime rights of other states.For this reason,a comprehensive and systematized legal regime for maritime temporary warning zone should be constructed,and the relevant rules should be continuously im-proved and enriched.At present,the Coast Guard Law and other legal instruments should be readjusted in order to construct a scientific and reasonable legal framework concerning maritime temporary warning zone with due regard to the maritime rights of other states.In terms of the Coast Guard Law,Article 25 can be applied as the legal basis for the establishment of the maritime temporary warning zone on the high seas according to the provision of Article 81,and the connection between Article 25 of the Coast Guard Law and Article 5 of the Provisions on the Administration of Maritime Navigation Warnings and Navigation Announcements on the rules of navigational notices and navigational warnings shall be strengthened.With regard to navigational measures,measures for the designation of shipping lanes should be included,the wording"restrict or prohibit the passage and stay of vessels and personnel"shall be limited to necessary conditions,and the right to non-compulsory navigational warnings should be included.China should also establish working rules pertaining to the Coast Guard Law and clarify the area,scope,time limit,domestic guarantee mechanism and international cooperation relevant to maritime temporary warning zone,so as to apply the"due regard"obligation to realize the protection of navigational rights as well as the regulation of the mar-itime temporary warning zone.
"due regard"obligationUnited Nations Convention on the Law of the Seamaritime temporary warning zoneexclusive economic zonehigh seas
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