Research On Legal Issues Of National Private Interest Relief In The Disputed Waters

In recent years, maritime disputes between China and Japan, Philippine, South Koreaand other neighboring countries have been intensified. Along with the highlightingof conflicts concerning islands’ sovereignty, delimitation of exclusive economic zoneand the continental shelf, vicious enforcement incidents frequently occurred in thedisputed waters between China and neighboring countries. Some incidents includedJapan Coast Guard seizing Chinese fishing boats, beating and arresting fishermen,suing the fishing boat captain, the Philippines killing Taiwan fishermen. However,the personal injury and property damage of Chinese citizens caused by the incidentsdue to maritime law enforcement did not cause academic attention. By contrast withstudying relief methods for the damage to private interest caused by maritime lawenforcement, scholars pay more attention to island’s sovereignty, exclusive economiczone and continental shelf delimitation issues in the disputed waters. To protectcitizens’ personal property rights is kind of important manifestation of sovereignty andjurisdiction of a state. The protection and relief in the disputed waters of nationalprivate interest not must necessarily lag behind the resolving of islands’ sovereignty,delimitation of the exclusive economic zone and continental shelf issues. It can fillthe gaps in theory, demonstrate the jurisdiction rights of China in the disputed watersand protect human rights to study the legal means of relief to national private interest.Administrative enforcement is essentially the external manifestation of state power,the exercise of which shall be within the scope of rights granted to a state by theUnited Nations Convention on the Law of the Sea including the sovereignty in theterritorial waters, the administrative law enforcement powers in the contiguous zone,the sovereign rights and jurisdiction in the exclusive economic zone and continentalshelf. In addition, its exercise shall also comply with the provisions of domestic lawand be consistent with general principles of international law and internationalcustomary when domestic law has no such provisions. Once the scope, degree or the procedures of the administrative enforcement in disputed waters exceed the legalprovisions, then it constitutes an internationally wrongful act with the results that thecountries conducting the law enforcement shall bear the responsibility of the State andcompensate the victims.Realities shows that for the personal injury and property damage of Chinese citizens,which is caused by the administrative enforcement of Japan and other countries in thedisputed waters, diplomatic negotiations, condemnation and other political means arefar from enough to achieve the protection of private rights and remedies, at this point,seeking legal means is necessary. From a legal theoretical perspective, the existinglegal remedies can be divided into two categories including international law anddomestic law approaches. In a case of Chinese people, the domestic approach meansprosecuting in the Chinese court. However, China adheres to the principle ofabsolute immunity, which indicates that the maritime law enforcement is consideredas acts of a state and enjoying immunity from jurisdiction in a Chinese court. As aresult, Chinese courts could not accept such prosecution in principle, and would faceproblems of delivery, default judgment, recognition and enforcement of judgmentsand other challenges. So the approach of domestic law is weak both from atheoretical or practical feasibility. By contrast, the international law approach is amore feasible way of relief. On one hand, we could hold the state with improperenforcement accountable basing on relevant provisions of the United NationsConvention on the Law of the Sea. On the other hand, it is recommended thatpromoting amendments and improvement to the existing fisheries agreements withneighboring countries as soon as possible to solve this problem.