The Judicial Protection Of China’s Marine Rights And Interests

The 14th Five-Year Plan of China has set up a special chapter on "Ocean""Actively Expanding the Space for Marine Economic Development",proposing to adhere to the integration of land and sea,harmony between people and the sea,cooperation and win-win situation,and collaboratively promote marine ecological protection,marine economic development and maintenance of marine rights and interests,and accelerate the building of a strong ocean state.In his important speech on building the ocean power,General Secretary Xi Jinping proposed to safeguard the country’s ocean rights and interests and make efforts to promote the transformation of ocean rights maintenance to a comprehensive and balanced type.This conveys the country’s firm determination and belief in speeding up the construction of strong ocean power and safeguarding ocean rights and interests.China is a large country with both land and sea.In accordance with the international law of the sea,we have extensive marine rights and interests.The sea around China is a semi-enclosed sea,and there are disputes between China and its neighbouring countries in many areas such as maritime delimitation,sovereignty over islands,marine environmental protection,exploitation of marine resources and security of sea lanes,etc.As a rapidly growing power,and with the expansion of its overseas interests,China is faced with the issue of safeguarding its marine rights and interests beyond the jurisdictional sea area,which determines that the maintenance of national marine rights is an important proposition for a considerable period of history.The maintenance of marine rights and interests is a systematic project,involving not only legislative,administrative and military institutions,but also judicial institutions.The study of judicial countermeasures for safeguarding marine rights and interests,and improving the system and mechanism for the judiciary to safeguard marine rights will help China’s judiciary to better serve and safeguard the implementation of the maritime power and the "One Belt,One Road" initiative,and help build a "maritime community of destiny " and also help to improve China’s judicial jurisdiction,trial and enforcement systems,coordination and cooperation mechanisms,give full play to the role of the judiciary,and promote the development of China’s maritime cause and the maintenance of marine rights and interests.In view of the weaknesses,loopholes and shortcomings in the judicial work of safeguarding the rights and interests of the sea,problem-oriented,forward-looking and prognostic studies will be conducted to form useful and innovative ideas to provide reference for relevant judicial practice.Scholars at home and abroad have conducted a series of useful studies on areas related to marine rights and interests.However,the research results of various types of research,especially those within the country,are still characterised by a single research method,thin research content and insufficient research system,which are not sufficient to form a complete judicial system and inter-departmental linkage mechanism for the protection of marine rights and interests.Therefore,the author believes that it is necessary,conditional and possible to conduct further in-depth research on the judicial protection of China’s marine rights and interests.This article discusses the theoretical and practical issues of judicial protection of our country’s marine rights and interests from the dual dimensions of international law and domestic law,which meets the current practical needs of my country’s strategy of building a maritime power.This article provides a series of useful and innovative ideas in the research field of judicial protection of marine rights and interests,and proposes the construction of a coordination and cooperation mechanism between the judiciary and other sea-related departments in the process of marine rights protection,which has a high theoretical value as well as a certain practical value.In addition,in measuring the performance of judicial protection of marine rights and interests,it attempts to construct an index system for evaluating the performance of judicial protection of marine rights and interests.The thesis is divided into seven parts:"Introduction",introduces the background of the article,the current status and review of the research,the significance of the topic,the research methodology,the research ideas and the innovations.Chapter 1 provides a basic theory of marine rights and interests and judicial protection.Marine rights and interests are the general term for the marine rights possessed by a state and the marine benefits that can be obtained from the exercise of marine rights.This chapter focuses on summarizing the connotation of marine rights and interests and sorting out the types of marine rights and interests.The marine rights and interests can be protected through political and diplomatic methods,economic methods,legal methods,administrative methods,etc.The protection of our country’s marine rights and interests through judicial means is the focus of this paper.By justice in this article,we mean primarily the activities of the courts in adjudicating cases.The two core elements of judicial protection are judicial efficiency and judicial impartiality.Judicial protection of marine rights and interests means that the court,through the trial of marine rights and interests infringement cases,will order the infringers to bear legal responsibilities such as stopping infringement and compensating damages.In the discussion of the subsequent chapters of the thesis,the author pays full attention to the foreign-related factors in the judicial protection of maritime rights and interests,and always implements the concept of coordinated promotion of domestic rule of law and foreign-related rule of law.Chapter 2 is an analysis of the real dilemma faced by the judicial protection of our country’s marine rights and interests.The paper briefly describes the challenges our country faces in the fields of marine security,island sovereignty,marine resources,marine environmental protection and polar marine rights and interests.This chapter analyzes five typical cases,namely:the exercise of jurisdiction over maritime cases in the waters of the Huangyan Island(Shanghai Maritime Court Marine Rights Case);the exercise of jurisdiction over maritime cases in the waters of the Diaoyu Islands(Xiamen Maritime Court Marine Rights Case);the first maritime criminal case accepted by a Chinese court(Ningbo Maritime Court Marine Rights Case);the Ningbo Maritime Court Protection of the Marine Ecological Environment Case;and the Xiamen Maritime Court Case on Protection of Marine Ecological Environment.This chapter also focuses on the analysis of the problems and the Cause of formation existing in the court organization system,the court trial system,and the court jurisdiction.Chapter 3 deals with the judicial response path of international maritime dispute settlement.The maritime dispute settlement mechanism of the United Nations Convention on the Law of the Sea(hereinafter referred to as the"UNCLOS")is voluntary and mandatory.This is followed by an analysis of two typical cases,including Mauritius v Maldives Maritime Delimitation and the South China Sea Arbitration.The various rights and interests of the sea areas under the jurisdiction of various countries are not clearly stipulated in the Convention,it is very easy to cause a series of disputes between neighboring countries about maritime-related rights and interests and the certainty of state sovereignty.The above-mentioned disputes need to be properly handled through a series of effective dispute resolution mechanisms.In order to actively respond to the increasing international disputes in the maritime and maritime-related fields,this chapter proposes the optimal decision-making scheme.Our country should strengthen the theoretical research and flexibility of the dispute settlement mechanism of the Convention.It can effectively safeguard my country’s sovereign rights and various maritime-related interests under the Convention,and accumulate and enrich my country’s practical experience in participating in international dispute settlement.Chapter 4 is the introduction of Foreign experience reference and coordination and cooperation mechanism construction of judicial protection of marine rights and interests in our country.The author suggests studying and learning from the coordination and cooperation mechanisms formed between the US courts and the US Coast Guard,between the Japanese courts and the Japanese Coast Guard,and between the Korean courts and the Korean Maritime Police Agency.Based on the system design of the above three countries,this chapter proposes to establish and improve the coordination and cooperation mechanism between judicial organs and other maritime-related departments in marine rights protection.reviewing and leading the cooperation between maritime judicial institutions and law enforcement and rights protection institutions with the thinking of the rule of law.Our country should review and lead the cooperation between maritime judicial agencies and law enforcement agencies with the thinking of the rule of law,and establish a corresponding operation mechanism,is conducive to improving the efficiency of maritime rights protection cooperation,thereby building a benign order of maritime rights protection cooperation.This chapter proposes that our country’s judicial organs should strengthen communication and cooperation with the State Oceanic Administration and the China Marine Police Bureau,and explore the establishment of an effective coordination mechanism.In addition,a coordination and cooperation mechanism for the judicial protection of marine rights and interests should be established by implementing the linkage between judicial jurisdiction and maritime law enforcement,establishing a unified marine affairs authority,and establishing an information platform for coordination and cooperation in the judicial protection of marine rights and interests.Chapter 5 deals with countermeasures and suggestions on judicial protection of our country’s marine rights and interests.First of all,relevant laws and regulations should be revised and improved,and maritime-related clauses should be added directly into the constitution or authorized by law to protect marine rights and interests,the Basic Law of the Sea should be formulated and implemented as soon as possible,and a separate law on maritime affairs should be formulated and improved.The performance evaluation of judicial protection of marine rights and interests is carried out.After a basic understanding of the performance evaluation system of judges,the basis for the construction of the performance evaluation system of judges is proposed,and an attempt is also made to set up a performance evaluation index system of judicial protection of marine rights and interests.The article also attempts to propose a reform path for China’s judicial system and mechanism under the new maritime rights situation,Including the establishment of a maritime high court led by the Supreme People’s Court,promoting the integration of three trials in maritime trials,expanding judicial jurisdiction,and improving judicial interpretations to provide guidance for judicial organs to safeguard marine rights and interests,etc.The author proposes to build a my country-led international maritime dispute resolution centre and analyses the necessity and specific measures of building an international maritime dispute resolution centre.Under the pluralistic dispute resolution mechanism,four models can be applied:the settlement model,the mediation model,the arbitration model and the litigation model.It is necessary to establish a litigation settlement system,improve the litigation mediation system and deal with the relationship between litigation and arbitration.In short,in the settlement of disputes over marine rights and interests,the courts should,on the one hand,give full play to the advantages of litigation in resolving disputes,Improve the effectiveness and efficiency of litigation and,on the other hand,support,supervise and cooperate with other non-litigation modes in resolving disputes over marine rights and interests.For example,do a good job in the docking of litigation,mediation and litigation for judicial protection of marine rights and interests,and explore multiple online dispute resolution methods,etc.The conclusion part summarizes and refines the proposed suggestions and countermeasures based on the research on the judicial protection of marine rights and interests in the above chapters.