Research On The Fishing Rights In Exclusive Economic Zones

For quite a long period in history, fishing had been neither right nor obligation for fishermen. The fisheries in all countries were free of management. It was not until the 19th century that fishing right came into being in marine fisheries as a right. There are great differences in the management and legislation for fishery in different countries. In this circumstance, the author discusses relevant matters about the fishing right in exclusive economic zones in both theory and practice. The whole paper is divided into three parts and five chapters. The first part includes chapter one, two and three which mainly introduces the current legislation condition in different countries.Chapter one is the discussion of the definition and attributes of fishing right. Limited permit system is enforced in the United States and the so-called limited means that fishermen is either prevented from entering the fishing area freely or restricted in the kind of fish they are allowed to catch. Collective system of transferable individual quota is enforced in New Zealand which is based on individual transferable quota and property right. The fishing right in Japanese law is divided into set fishing right and unset fishing right. The former is mainly a right to catch salmon in Hokkaido and the latter includes fishing right with aquatic animals which is fixed by Minister as its target, what's more, the boats which are allowed by Minister to fish are also included in the unset fishing right. The specific fishery in Taiwan which is equivalent to the designated fishery in Japanese Fishery Law means that fishing boats can only do the profitable fishing which the authority designates and the area includes fishing types, fishing period and fishing areas which are marked in the fishing license. The specific fishery is the very fishery which makes profit from the fish or its exchange value, and so the specific fishing right is also equivalent to the fishing right in Chinese Fishing Law. In China, the fishing right is connected to the specific fishing area which is provided by the fishery quota. Fishermen have exclusive rights over the fish they catch and so the relation between people with fishing right and without fishing right is of the attribute of private right. But meanwhile, the fishing right is limited by public power. For example, the access of fishing right is permitted by administrative authority. So the fishing right is also of the attribute of public right.The creation of the system of exclusive economic zone makes the institution of free fishing outside territorial waters become history. The appearance of exclusive economic zone has great influence to the management of fishery because countries are entitled to manage both domestic fishermen and foreign fishermen within their own exclusive economic zones. Fishing rights in exclusive economic zones have certain special attributes, and in accordance with strict criteria, the object of fishing rights in the exclusive economic zones shows uncertainty.Chapter two is the discussion of the establishment, transfer, change and abolishment of fishing right. The change of fishing right is different from typical property rights and has its own characters because fishing right is of the attribute of private right.Chapter three is the discussion of the restriction that fishing right suffers in exclusive economic zones. In recent years, China has reached fishery agreements with Japan and the Republic of Korea. According to the fishing agreement between China and Japan, China and Japan give each other permits of fishing in each other's exclusive economic zones. The right fishermen enjoy is called the fishing right in Chinese existing law. According to an agreement reached between China and South Korea, the same permit as that between China and Japan is given to each other and the right is also the fishing right in Chinese existing law. Chapter four is part two of this paper and here the author analyzes the influence of ship pollution to fishing right. After the inspection of Common Law and Civil Law, the author verifies the importance of initial allocation of rights. How to protect the right and interest of fishermen in pollution accidents especially ship oil pollution accidents? When the waters are polluted, fishermen will encounter the problem of decreasing catch or being unable to fish, and even fishing nets, fishing boats and other fishing tools being damaged.The loss of fishermen in the area of tort law is called pure economic loss. The so-called pure economic loss in ship oil pollution damage is that the properties of the owner or user suffer loss although they are not contaminated. For example, the fishermen's boats and nets have not been contaminated, but they suffer the loss of being unable to fish because their fishing waters are damaged in the pollution. Economic Analysis Law's view is that once the accident happens, the cost will precipitate; Although laws are concerned about how to compensate the accident victims fully, laws are more concerned about how to reduce and control the damage that may occur in future. reasonable sharing of responsibility can avoid harm, as a result, the total social costs are minimized.If rights and obligations are allocated in purpose of minimizing the total cost of avoiding oil pollution, there are these manners of adjusting as follows : the installation of safety facilities, stopping oil shipments or fishermen abandoning their boats and landing or getting compensation. Which manner is of the lowest cost or are there other ways to approach the lowest cost? It is difficult to answer this question mainly because the environmental impact of oil pollution is hard to understand and meanwhile, the cost of environmental damage is difficult to gauge. Thus, the initial allocation of the right seems critical because the high transaction costs may entirely hinder market transactions from correcting mistakes in the initial distribution of rights.Chapter five is part three of this paper and here the author discusses the corresponding channels for remedy when fishing right is infringed. The corresponding channels for remedy are composed of two aspects: remedies in public law and remedies in private law. Remedies for the fishing rights in public law mainly includes right relieve procedural and the restrictions and compensation to administrative change of fishing right. Remedies for the fishing rights in private law can be divided into two aspects: Remedy in the sense of property rights and remedy in the sense of debt. Remedy in the sense of property rights mainly refers to the right around the property, and the right around the property includes the request to return, the request to remove and avoid the obstacles; while remedy in the sense of debt mainly includes the request to seek damages for infringement.