A Study On The Right To Use Island In China

China’s vast ocean spread covers thousands of uninhabited islands. Uninhabitedislands are islands, rocks, and other naturally formed areas of land above the water athigh tide, which do not have registered permanent residents. Our laws have so farfailed to provide for the ownership of uninhabited islands. But as special resources,increasing importance is attached to them. Relevant laws and regulations have beenpromulgated in succession, setting forth provisions that uninhabited islands are ownedby the state, and setting a paid use system of uninhabited islands. However, theprovisions are in conflict with practice. In reality, China’s coastal fishermen have beenspontaneously and freely using uninhabited islands in the sea near their fishing village.This phenomenon is called “the fathers’ islands” and is accepted by the local peopleand government. The rights of fishermen emerging from this phenomenon are called“customary use rights of islands”. This phenomenon raises three questions. Arecustomary use rights their rights or not? Should customary use rights be protected?If they should, then how can they be protected?In this context, this thesis begins with these three questions, and argues for theprotection customary use rights of islands. It integrates theoretical research andpractical experiences, applied comparatively with methods of normative analysis,empirical analysis, comparative analysis and historical analysis, and solves problemsleft over by history concerning the utilization of uninhabited islands.This thesis consists of4sections.Section1raises the questions above. Section2demonstrates that customaryuse rights of islands are customary properties. Section3analyses the state ofcustomary property in China and overseas. Section4puts forward suggestions for thebetter utilization of uninhabited islands.The basic elements of customary rights are their social spontaneity, age, thespecific groups accepted, and that they are unwritten by law. The customary use rightsof island have four elements above hence they are customary rights. Their contents,effectiveness, changes, as well as property nature, meet the requirements of thestatutory properties. Therefore, they are customary properties.Protection of the customary use rights of islands is based on the acceptance ofcustomary properties. A customary property is a non-statutory property that isgenerated from the longtime use of properties by people, and is used to clarifyownership and utilization of properties by certain parties. Academia holds differentopinions on customary properties. There are pros and cons, and there is alsoeclecticism. Property Law of the People’s Republic of China has set the NumerusClausus Principle. But in reality, there are a lot of customary property rights, andjudicial and law enforcement practices recognise them to varying degrees. Here is acomparison of other civil law countries and regions. French Civil Code does notspecify the Numerus Clausus Principle, and the doctrine of customary property rightsremain under dispute. Although the BGB (Bürgerliches Gesetzbuch) does notexpressly provide that principle, it has been generally accepted by theory. Rethinkingthe initial reason why Germany insists on the Numerus Clausus Principle, we find thatthe basis is not solid. Furthermore, there is a tendency to accept the principle in doctrine and judicial practice. Japan and Taiwan had clearly defined the principle intheir Civil Code. Academia denied customary property rights initially but came tosupport them gradually over time. Taiwan has now modified the property chapter toexpressly acknowledge customary property rights. This thesis concludes that it is aninevitable result of social and economic development to allow for customary property,and protecting customary use rights of islands is a must to acknowledge reality.Our legislation and practice should accommodate the customary use rights ofislands as well as rectify property law for better coordination. Several conducivemeasures are given below. First, improve our state’s “rights of uninhabited islands”system. Second, expropriate the confirmed uninhabited islands and give reasonablecompensation to fishermen. Third, manage a balance between ecological protectionand the protection of the livelihood of the island. Fourth, coordinate relationshipsbetween customary use rights of islands holders and the use rights of uninhabitedislands holders.