| Held in December10,1982Third UN Conference on the law of the sea throughthe " United Nations Convention on the law of the sea " which go into effectat formal on November16,1994. According to the " United Nations Conventionon the law of the sea " PART VIII REGIME OF ISLANDS, an island which can sustainhuman habitation or economic life of his own shall have the territorial sea,contiguous zone, the exclusive economic zone and the continental shelf. Rockswhich cannot sustain human habitation or economic life of their own shall haveno exclusive economic zone or continental shelf. The United Nations Conventionon the law of the sea " established the legal status of island in internationalsociety, and the island has play a decisive role in maintaining a national marinerights and interests.The island protection law which promulgated in December2009in our countrymarks the island protection into the legal orbit. But the lack of our islandprotection legislation experience and the deficiency of the island protectionlegislation theory led to the deficiencies of " the island protection law ",so, there is a need for further improvement. The paper is to explore thedeficiencies of current legislation from history, the reality investigation,theoretical reflection, analyzing of the causes of the problem, proposingsolutions to the problem. First, from historical perspective, we discuss ourisland protection historical process in China, exploring the experience we canlearn from the history of the island protection. Understanding of the islandprotection is linked with the sea. Before the Ming Dynasty, because the scienceand technology is not developed, we do not pay attention to the island protection,focusing on the use of the sea to the development of foreign trade, protectingisland mainly from the perspective of coast defense. From the Ming Dynasty tothe late Qing Dynasty, because of the Japanese invasion from the sea, this periodof time is mainly the coast defense, island protection is the services of thecoastal defense. From the painful lessons of Jia Wu war, the Qing government recognizes that due to the lack of ocean-going combat capability of the coastalcountry, the coast defense itself is not strong. From the Republic of China periodto the present, sea power thought has been further formation and development,and gradually move toward the island era. For a more profound understanding ofthe history of island protection, the paper also discusses in detail the historyof protecting the South China Sea Islands and the Diaoyu Islands. Secondly, fromthe perspective of reality investigation, I discuss the current situation ofthe protection of islands at present in China. I analyzed current Islandgeography situation, elaborated the " sovereignty belongs to me, putting asidedisputes, common development " principle in the South China Sea Islands and theDiaoyu Islands. In June2012, the State Council set up sand city which strengthensover the South China Sea Islands administrative jurisdiction, opened up todeclaring the new path of national sovereignty from the administration. InSeptember10th the Chinese government announced the "Statement of the governmentof people's Republic of China on the Diaoyu Islands territorial seabaselines,"and announce to the world that China's Diaoyu Islands territorialsea baseline, indicating our country in the world pay more attention to use legalmeans to protect the sea island. On September25th, the Information Office ofthe State Council published the white paper of " Diaoyu Islands are China 'sinherent territory ",in which from historical, geographical and legal point ofview, elaborated the Diaoyu Islands belong to China's basis, showed the abilityand confidence of our government to protecting the island, defending the island's right.Finally, from the perspective of theoretical reflection to torture therelated theory of island protection legislation.Right and obligation? whichis the Law Center, should be put into a specific law to understand. The lawwhich most people enjoy the right and a few people fulfill the obligation iswith right as centre, instead is with duty as center. Generally speaking,thelaw which is mainly protecting private interests is with right as centre,thepublic interests is with duty as center. Island protection law is to protect the public interest in the island, so the legislation on the protection of islandshould adhere to the center of obligation.. The island itself has the valueof diversity. On the background of the ecological crisis, the natural valuetheory is a theory achievement of human thinking, has its historicalinevitability. The evolution of the earth's ecological system is withoutstability and balance, the stability and balance is directed to human needs,the ecological change itself is also an objective evolutionary process, nomatter good or bad.. It does not have any practical significance when we talkabout the natural intrinsic value and ecological value without considering thehuman interest need. In a sense,the essence of environmental problem is notthe problem whether the nature has intrinsic value, nor whether the nature hasright., but the problem that human has a variety of value choice about the nature.It is the problem of the conflict and coordination that someone or some peoplechoose the economic value of nature and the nature has ecological value ofhumanity as a whole. According to the Holmes Rolston, before the existence ofhuman being, nature has the intrinsic value. According to Holmes Rolston,before the existence of human being, nature has the intrinsic value, enjoy therights, but, even if the nature has intrinsic value, enjoy the rights, theproblem of environment happened. It is obvious that the nature has intrinsicvalue, enjoy the rights, cannot avoid environmental problems. In the face ofenvironmental crisis, the theory of the nature having rights is presented,trying to solve environmental problems through setting the right on the naturalbody. In order to realize the protection of ecological environment, the wayof setting a right on natural body, fuzzy human society and the naturalboundaries. Law is the rules of the game which the human society sets, thenatural body itself does not have moral sense and sense of justice, notunderstanding the human setting the rules of the game. Human beings can notreplace the natural body, only with human senses, there is no natural bodysensory. Humans can only use human eye to know the world, and not with the eyesof owls to know the world. Natural body is always the object of human using and protecting. Natural body does not know the rules of the game setting up,and humans also did not fully grasp the rules of the nature having. Naturalbody can not be used as a subject of law and people on an equal footing. Thetheory of the natural right is essentially to safeguard the people 's rightof existence, not a single person or some people 's right of existence. It isto safeguard the humans as a species to survive the rights in nature, whichis the different places between a natural right and other rights. Other rightssafeguard the survival rights of a person or some persons rather than the humanoverall.Through the study of history, reality investigation, theoreticalreflection,it is found that the current " island protection law " has thefollowing problems: First,a plurality of the legislative purpose leads toweakening of island ecological protection. Main performance is a ethicaldefects of the legislative purpose. It is nominally protecting Island but inessence human interest need. He is not to protect the island, but coordinatethe conflict of interest in behavior of island using. It is an island managementlaw. The organic complex body cannot be used as the protection object inlegislation. The scope of the sea area is not clear." The island protectionlaw " and "the sea management law " exists on the cross in adjusting the space,and the cross range is uncertain, a range of uncertain area as the object oflegal protection is contrary to the scientific requirements in legislation.The legislative purpose of rational development and utilization of naturalresources conflict with the reasonable development principles. Second theprinciple of the island protection law defects. The main show is that scientificplanning is not equal to the planning of no ecological destruction. Scientificplanning itself is a part of cognitive activities result, this part of humanknowledge is limited. It is not possible at this stage to fully grasp theecological function of the planning object, and planning object mutualconnection, interaction generating. The law of ecological development ofplanning object, in the present stage, also did not fully grasp, the planning of not fully understanding the program object is questionable in science.Moreover, the existing ethics of planning is based on some people's interestsas the center, unable to on the interest of the whole of mankind as the center,the ethical concept to guide the scientific planning will produce ecologicaldamage. The principle of protection priority defects. Protection means avoidingalien invasion, does not indicate maintaining persistent existence of theisland. Therefore the principle of protection priority can not embody theconcept of sustainable development. Third the island protection law take theadministrative protection in light of judicial relief. Most of the islandsprotection duties in the island protection law are given to the administrativeorgan. The administrative organ has its own interests. When the administrativelaw enforcement in the public interest to protecting the island appears inactionor abuse of power, the supervision only stay in the field of administrativesupervision, lack of judicial supervision, this kind of legislation goesagainst the concept of the rule of law of Administrative law enforcement shallbe subject to judicial supervision. Fourth, the current "island protection law"can not meet the practical needs of the islands protection.It is as follow:historical problems have not been fundamentally resolved in legislation; Islandprotection law system is not perfect; Island protection law system is notperfect; Protection on natural erosion island is not made clear in legislation.In view of the problems of the island protection law, put forward the followingmeasures to improve. The legislative purpose of the island protection lawmodified to protect island and its ecological system; Perfecting the protectionprinciple, increase ecological risk precautionary principle; The principle ofprotection priority is modified for the principle of maintenance; Theadministrative public welfare litigation system should be established in islandprotection law. Reconstructure island protection system in legislation. |
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