沿海国和船旗国对在领海上外国商船的管辖权冲突一直都存在,历史上各国通过互相签订领事条约来解决这一冲突。受领事条约的影响,1982年《联合国海洋法公约》也包含了沿海国对通过领海的外国商船上的犯罪行为行使刑事管辖权的规定。但纵观《联合国海洋法公约》和我国与外国缔结的领事条约并没有具化“属于扰乱当地安宁或领海的良好的秩序的性质”等标准。本文试图通过研究美国在行使相关管辖权时的司法实践,具化在我国领海内被管辖的外国商船上的犯罪的标准。 Coastal and flag States have always had conflicts over the jurisdiction of foreign merchant vessels in the territorial sea. Historically, all nations have consulted each other by consular treaties to resolve this conflict. Affected by the consular treaty, the 1982 UN Convention on the Law of the Sea also includes provisions on the criminal jurisdiction exercised by the coastal State in the commission of criminal acts on foreign merchant vessels passing the territorial sea. However, the UN Charter of the sea and the consular treaties concluded by China and foreign countries have not been adopted in any way. Such criteria as “the nature of a good order that is disturbing the tranquility of the land or the territorial sea” are not available. This paper tries to explore the standard of crimes committed by foreign merchant vessels under the jurisdiction of our territorial sea by studying the judicial practice of the United States in exercising relevant jurisdiction.