Legislation,challenges and solutions for the"Dream of the Island Owner"—Review of the application and approvalmeasures on the developmentand utilization of uninhabited islands in Hainan Province

DENG Yuncheng

Island Research Center,Ministry of Natural Resources,Pingtan 350400,Fujian province,China

Abstract:China's legislation relating to islands categorizes the latter into inhabited and uninhabited ones.Between the two different types,only uninhabited islands can be acquired by those who aspire to be private island owners.In an effort to promote the development and utilization of uninhabited islands in China,a succession of laws and regulations have been formulated,including the Law of the People's Republic of China on the Protection of Offshore Islands,and the Application and Approval Measures on the Development and Utilization of Uninhabited Islands,among others.As the only tropical province in China,Hainan province boasts a large number of uninhabited islands,many of which are desired by prospective island owners.In order to promote the development of uninhabited islands,the Application and Approval Measures on the Development and Utilization of Uninhabited Islands in Hainan Province had been promulgated.Based on a detailed introduction on the main contents of the Measures,it is found that the Measures has set an innovative example for its kind in terms of the real estate publicity system,the construction permit and acceptance systems,solutions to using the islands before the issue of Island Protection Law,and verification systems.Nevertheless,the actual implementation of the Measures still brings a host of challenges with it.These relate to aspects of the Measures such as supply regulation premised on regulatory equilibrium,spatial planning with"Multiple-plan Coordination",and coordination between regulations on sea areas and islands.This paper proposes to maximize efforts to refine and coordinate general planning,to innovate systems and procedures regarding the use of islands and to promote the development and utilization of uninhabited islands through protective development in line with international standards.

Keywords:island owners,uninhabited islands,legal system,Hainan Province

1 Introduction

The obsession with the ownership of islands in China can be attributed,at least in part,to the fictional character of Huang Yaoshi,a master of all trades and the owner of the“Peach Blossom Island”.Portrayed by Jin Yong,a renowned Chinese martial novelist with a very broad readership,the figure of Yaoshi would seem to have prompted a number of island enthusiasts to establish the Global Chinese Island Owner League①,Global Chinese Island Enthusiasts Association②,and other organizations③.With more than 11 000 islands[1]and a total population of 138.271 million in China(in accordance with statistics in 2016),the theoretical chance for each Chinese citizen to become an island owner is estimated at 0.000 86%④.If low-value islands such as those of small area are discounted,the chance will be even smaller.Thus the development and utilization of islands as natural resources of apparent rarity requires strong laws and regulations.

2 A review of legislation on the development and utilization of uninhabited islands

There are more uninhabited than inhabited islands in China.In Chinese legislative practice,inhabited islands are,for the most part,regulated in the same way as mainland areas in many aspects.However,there is no regulatory mechanism for uninhabited islands.In order to fill the legal vacancy,the State Oceanic Administration of China and other two departments jointly issuedRegulations on the Administration of Protection and the Utilization of Uninhabited Islands⑤in 2003,and local governments including Xiamen and Ningbo also issued corresponding regulations subsequently⑥,which,to some extent,put an end to the disorder in the development and protection of uninhabited islands.However,there are still a number of problems from the perspective of implementation effects,such as low-level legislation and fragmented regulations on uninhabited islands,among others,which are disadvantageous to the effective management of islands,in this case regarded as a unique object to be regulated.

To resolve the issue,related departments have prepared for the legislation at state level and have passed theLaw of the People's Republic of China on the Protection of Offshore Islands(hereinafter referred to as the"Island Protection Law")for the management system of uninhabited islands.As a significant part of China’s basic legal system,theIsland Protection Law:a).makes it clear that uninhabited islands are owned by the State and the State of Council shall exercise the right of such ownership on behalf of the State(article 4);b).provides that the competent marine authority shall be in charge of the administration of the protection,development,and utilization of uninhabited islands(article 5);c).stipulates that plans are formulated to protect and utilize uninhabited islands(article 12);d).has clarified requirements for island protection in consideration of the uniqueness of uninhabited islands(article 28,article 29);e).clarifies requirements for the development and utilization of offshore islands,and in particular make it clear that approval of application shall go before actual development(article 30);f).provides that fees should be paid for the development and utilization of uninhabited islands(article 31);g).lists problems that may be encountered in the development of uninhabited islands,including the coordination of construction landscape and distance to the shore as well as wastewater management,and stipulates that fish breeding and residential construction is prohibited on those islands depending on tourism(article 32,article 33,article 35).

In order to implement theIsland Protection Law,advance the orderly development and utilization of uninhabited islands,and facilitate the application for the development of uninhabited islands,one of most important things is to clarify application and verification procedures.In 2011,the State Oceanic Administration of China issued theTrail Measures for the Application and Approval of the Utilization of Uninhabited Islands.Though the Trail Measureshas made preliminary provisions on the utilization of uninhabited islands,these provisions are pretty simple,resulting in its limited application scope.In 2016,theApplication and Approval Measures on the Development and Utilization of Uninhabited Islandswas released upon the approval of the State Council,with the aim of further regulating the development and utilization of uninhabited islands.For the first time,this regulation has clarified relevant requirements on the application for and approval of the development and utilization of uninhabited islands.The application and approval procedures are provided for at both the national and provincial levels,the former of which involves the application and approval on base-points for islands,especially those inside the protected areas,as well as major activities that will cause significant change to the nature of islands(article 5).At a provincial level,the procedures constitute the application and approval made by the local government.In terms of quantity,the latter plays a more important role in the development and utilization of offshore islands.In other words,in order to make the island owner’s dream come true,governments at provincial level shall issue corresponding regulatory measures on application and approval.Compared to“cool water islands”⑦,many Chinese prefer to visit tropical islands,which is exemplified by the fact that many Chinese tourists take their vacations in the Maldives,Fiji and other tropical islands every year[2].Therefore,it could be inferred that more people aspire to become island owners in southern China,mostly in the Hainan Province.

3 Hainan’s legal system on the development and utilization of uninhabited islands

As the southernmost province in China,Hainan is an inhabited island itself,surrounded by a number of islands in its adjacent waters,as well as Sansha City.They boast the sought-after climate conditions comparable to those of tropical islands in other countries,and thus are preferable to Chinese tourists.Prospective island owners have been paying growing attention to uninhabited islands with huge tourism potential.In order to advance the construction of the International Tourism Island in the Hainan Province,the government has built some tourist facilities in the shore areas of Haikou,Sanya and other places.However,when it come to the development and utilization of uninhabited islands,relatively less progress has been achieved in this regard,due to the strict provisions under theIsland Protection Lawas well as the lack of necessary supporting mechanisms.

In order to promote the development and utilization of uninhabited islands under the jurisdiction of the Hainan Province,the Hainan Provincial Department of Ocean and Fisheries issued theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands in Hainan Province(hereinafter referred to as the“Measures”)in July 2018,arousing huge public enthusiasm for the development of uninhabited islands⑧.The legal basis for the Measures is Article 21 of theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands,the direct upper law of the Measures,stipulating that the relevant provincial governments could formulate their specific measures on the application and approval for the development and utilization of local uninhabited islands in compliance with this regulation.The Measures law is applicable to all administrative areas of Hainan Province,excluding uninhabited islands subject to the application and approval of the State Council in accordance with Article 5 of theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands⑨.

In order to meet the relevant requirements,the Hainan Provincial Department of Ocean and Fisheries issued theTrail Measures for the Application and Approval of the Utilization of Uninhabited Islands in Hainan Provincein January 2013.However,with the accelerated progress in China’s institutional reforms on ecological civilization systems as well as the continuous progress in the development and utilization of uninhabited islands in Hainan province,the new context has raised further requirements for the development and utilization of uninhabited islands.Specifically,theTrail Measures for the Application and Approval of the Utilization of Uninhabited Islands in Hainan Provinceno longer meets all new practical needs and changing requirements for the application and approval requirements of the development and utilization of uninhabited islands.Thus,the application and approval of the development and utilization of the uninhabited islands should be further standardized,for the necessity of implementing China’s relevant policies and requirements.The Measures remains an important legal basis for Hainan Province to implement relevant requirements under theMeasures for the Application andApproval of the Utilization of Uninhabited Islands,to strengthen the administration of development and the utilization of uninhabited islands approved by the provincial government in its administration areas.

As the top-level basis for the administration of protection,development,and utilization of uninhabited islands in China,theIsland Protection Lawhas provided a legal basis and guidance for the formulation of the Measures.In December 2016,China issued theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands,which has made explicit provisions on the limits of application and approval authority for the State Council and provincial governments of the people(article 5),application and approval of applications(articles 6 to 16),and approval registration(articles 17 to 22),etc.Besides,the regulation stipulates that“relevant provincial governments may formulate detailed application and approval measures for the development and utilization of uninhabited islands in local areas in compliance with this measure”(article 22),which has provided the direct basis for the formulation of the Measures.In addition to this,in 2015,the Hainan Provincial Department of Ocean and Fisheries and Department of Finance jointly issued theMeasures for the Administration of the Collection of Fees for Uninhabited Islands Utilization in Hainan Province,which is also a source of the legal basis for the formulation of the Measures.

3.1 Main contents of the Measures

The Measures contains 26 articles,principally covering relevant procedures on the administrative counterparts’application for the development and utilization of uninhabited islands.The major contents are as follows:

(1)The application scope of the Measures

Article 1 of the Measures clarifies that the Measures has been formulated in terms of its consistence with theLaw of the People's Republic of China on the Protection of Offshore Islands and the Application and Approval Measures for the Development and Utilization of Uninhabited Islands,which have provided the Measures with sufficient legal basis from higher laws.Article 2 of the Measures stipulates that the Measures is applicable to the implementation,examination,and approval of the development and utilization of uninhabited islands within the administrative areas of Hainan Province approved by the provincial government in accordance with article 5 of theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands.

(2)The application and approval procedure for the development and utilization of uninhabited islands

Article 3 has reaffirmed the principles for promoting the development and utilization of uninhabited islands provided under theIsland Protection Law,namely,“scientific planning,prioritized protection,rational development,and sustainable use”.Article 3 also requires comprehensive implementation of national and provincial requirements on marine ecological civilization,and encourages environmentally-friendly,low-carbon,energy-saving,and intensive and economical modes for the development and utilization of ecological offshore islands.The Measures has also provided for the application and approval procedures on the development and utilization of uninhabited islands from several aspects,including approval procedures.

First,legal basis for the application and approval of the development and utilization of uninhabited islands is clarified,which is composed of:theLaw of the People's Republic of China on the Protection of Offshore Islands,theApplication and Approval Measures for the Development and Utilization of Uninhabited Islands,and other relevant laws,regulations and documents⑩;the general plans at provincial,municipal,and county levels of Hainan province⑪;relevant industry policies of China and Hainan province⑫;and the technical standards and specifications on the administration of the development and utilization of uninhabited islands⑬.

Second,clarifications have been made about the requirements of application materials on the utilization of islands.Based on relevant requirements under theApplication and Approval Measures on the Development and Utilization of Uninhabited Islands,the Measures has further clarified the procedures and materials regarding the application for the development and utilization of uninhabited islands.As set forth under Article 5 of the Measures,applicants for the utilization of islands shall submit the following application materials:an application for the development and utilization of uninhabited islands,a specific plan of the development and utilization of uninhabited islands and a feasibility study report for the development and utilization of uninhabited islands.Articles 6 and 7 have also made clear provisions on the contents of the detailed plan and the feasibility study report.Article 5 of the Measures further provides that“institutional or individual applicants for the development and utilization of uninhabited islands shall submit the application to the provincial-level maritime affairs-related administrative department.”

Thirdly,the requirements for the examinations and approval on the utilization of islands is demonstrated.The Measures has made detailed provisions on the competent authority,procedures,and contents of the examination in compliance withSuggestions of the State Oceanic Administration on the Examination Work for the Development and Utilization Project of Uninhabited IslandsPart I,Some Suggestions of the State Oceanic Administration on the Assessing Work for the Development and Utilization Project of Uninhabited IslandsPart II,and other regulations.Article 8 of the Measures also expressly requires on-the-spot investigations subsequent to the acceptance of applications for the use of islands to improve the effectiveness of examinations.

Fourth,the requirements for the application and approval for the utilization of islands is explained.Pursuant to relevant provisions under theApplication and Approval Measures on the Development and Utilization of Uninhabited Islands,the Measures has made detailed provisions on application procedures,application materials,and the approval pertaining to the utilization of islands.In line with Article 10 of the Measures,“Applications for the development and utilization of uninhabited islands that have been approved at the administrative leadership meeting of the provincial-level maritime affairs-related administrative department shall be submitted by the department for the approval of the provincial government,together with the following materials...”Provisions under the Measures on application materials are made by reference to relevant provisions of theTrial Measures for the Application and Approval of the Utilization of Uninhabited Islands in Hainan Provinceissued by the Hainan Provincial Oceanic and Fishery Department in 2013.Article 11 thereof has set forth the main laws and regulations that apply to the approval by the provincial people’s government of applications for the utilization of islands.As stipulated under Article 12 of the Measures,after an application for the development and utilization of an uninhabited island is approved by the provincial government,the provincial-level maritime affairs-related administrative department shall issue an approval document,and have it circulated among relevant departments,municipal(county)governments,and relevant military organs.Besides,clarification has been made under this Article of the specific contents of the approval document.

(3)The relevant requirements relating to the utilization period and registration announcements,etc.

The maximum period for the development and utilization of uninhabited islands is determined mainly by the reference of relevant provisions on the right to the utilization of sea areas,which have made it clear that a maximum period of 25 years can be granted for the utilization of islands for tourism and entertainment.In accordance with the requirements under such documents as theApplication and Approval Measures on the Development and Utilization of Uninhabited Islandsand by reference to the relevant regulations of Hainan Province,the Measures has made corresponding provisions on the utilization of island payments,real estate registration,and announcements.Article 14 has set out relevant requirements for the payments.Article 15 clearly stipulates that“applicants shall go through registration procedures and obtain a real property ownership certificate at an immovable property registration office,taking along the approval document and the payment voucher in compliance with relevant provisions on the immovable property registration.”This re gulation affirms the property attribute of the uninhabited islands and resolves the dispute over relevant provisions under theIsland Protection Lawon the development and utilization of uninhabited islands,thus being conducive to the protection of the relevant rights of the“island owners”.In order to strengthen the legal rights of"island owners",Article 16 of the Measures has made it clear that the provincial-level maritime affairs-related administrative department shall make an announcement on its official website,including the following contents:name,category,purpose,location,area,owner,immovable property certificate number and the maximum period of a project for the development and utilization of an uninhabited island,unless state secrets are involved.

(4)About the requirements for EIA management

In order to actively implement relevant decisions and deployments for building ecological civilization in China and fulfill the task of the ecological protection of uninhabited islands,Article 17 of the Measures clarifies the requirements for the environmental impact assessment of projects relating to uninhabited islands.In other words,projects that should go through environmental impact assessment should do so in accordance with the relevant laws and regulations including theMarine Environmental Protection Law of the People's Republic of Chinaand the Administrative Regulation on the Prevention and Treatment of the Pollution and Damage to the Marine Environment by Marine Engineering.

(5)The coordination of approval procedures

In accordance with Article 20 of theApplication and Approval Measures on the Development and Utilization of Uninhabited Islands,“institutional and individual applicants for island utilization should go through the new project construction procedures in relevant departments,taking along approval documents,immovable property certificates,and other materials,and related requirements on specific measures shall be made by the provincial people’s government in consideration of existing regulations.”Taking into account the actual conditions of Hainan Province,the Measures has clarified the requirements for the coordination of approval procedures,ranging from the issuance of immovable property rights certificate as well as related departments’management and acceptance.Article 18 of the Measures has provided that approval documents,immovable property certificates,and other certificates should be submitted by applicants for construction permits.Article 19 specifies the requirements for the coordination of management among the other relevant departments,stipulating that“the development and utilization of uninhabited islands involves affairs relating to construction projects,port terminals,mineral resources,waste disposal,safe production,fire safety,protection areas,scenic spots,and other areas,which shall be handled by the relevant departments in accordance with law.”Article 20 clarifies the requirements for the acceptance of completed island development projects.In addition to general acceptance procedures,this Article also clarifies that the constructor shall,within 15 days from the date of completion and acceptance of the construction project,submit for record the following materials:construction project acceptance reports,acceptance and approval documents on planning,environmental protection,fire protection,etc.,issued by the relevant competent authorities,and permits for the utilization of islands to the administrative authorities on housing and urban-rural development at or above the county level.

(6)Provisions have been made on amendment and period extension

In accordance with relevant provisions under documents such as theApplication and Approval Measures on the Development and Utilization of Uninhabited Islands,the Measures law clarifies relevant provisions on the purposes,plan amendment,and period extension.Article 21 stipulates that“where it is necessary to change the category,nature,or make other significant changes on island development and uninhabited plans,such changes shall be reported to the provincial people’s government for re-approval and go through procedures on real estate transfer registration.”For the extension of the utilization period,relevant provisions have been made under Article 22 of the Measures law,requiring the submission of an application for the extension of the utilization period and payment for the utilization fees of the extended period.If no application has been made for extension or the extension application fails to be approved,the development and utilization of uninhabited islands shall be suspended.

(7)Provisions have been made on the management over the island utilization before the Island Protection Law

In accordance with China’s relevant requirements on regulating island utilization before theIsland Protection Law,provisions in this regard have been made under Articles 23 and 24 of the Measures.Article 23 expressly provides that relevant procedures on the application for island utilization before theIsland Protection Lawshall be completed within 12 months from the date of implementation of the Measures,and those who failed to do so shall be investigated and punished in accordance with law.Article 24 clarifies the main contents for the verification system of island utilization before theIsland Protection Lawand makes reference to different verification requirements according to different situations of island utilization before theIsland Protection Law.

3.2 Main innovations of the Measures

An analysis of the Measures in comparison with similar regulatory measures of its kind will come to the conclusion that its main institutional innovations can be found under relevant provisions on real estate disclosures,construction permits and acceptance,island utilization before theIsland Protection Lawand verification systems.The following is a detailed analysis of the innovations:

(1)Real estate publicity system

In accordance with Article 15 of the Measures,bearers of approval documents and utilization fees payment vouchers can register with the relevant authorities and obtain real property ownership certificates.In order to strengthen the legal effect of real property ownership certificates,Article 16 expressly stipulates that real property ownership certificates shall be disclosed in public after they have been obtained by an applicant.This provision clearly defines the right to the utilization of uninhabited islands as a property attribute.In order to highlight the uniqueness of uninhabited islands and avoid their being taken as other general immovable property in the registration procedures,the right to the utilization of uninhabited islands is made public by provincial-level maritime affairs-related administrative departments.Although explicit provisions have not been made on the legal nature of the right to the utilization of uninhabited islands under theIsland Protection Law and the Property Law,the right to the utilization of uninhabited islands is deemed as a property right in legislative practice in Fujian,Hainan,and other provinces,and confirmed by the above-mentioned innovative disclosure systems.Such practices are aimed at the protection of the legitimate rights and interests of both the right holder and stakeholders of the transaction.Furthermore,they are in compliance with the requirements for the disclosure of property rights by making it known to the public,who is the right holder referred to in the previous statement.As far as legitimacy is concerned,these practices are favourable to the protection of stakeholders’rights without any legal risk.

(2)Construction permits and acceptance systems

In actual practices relating to the development and utilization of islands,which are different from the procedures of the National Development and Reform Commission,applicants may be faced with the uncooperativeness of the relevant authorities in charge of construction and acceptance procedures,making it difficult to effectively promote the development and utilization of uninhabited islands.Article 18 of the Measures clearly provides for construction permits and clarifies the duties of the administrative authorities on housing as well as the urban-rural development of governments at the county or higher levels,both of whom have jurisdiction over the island.Besides,in accordance with relevant provisions on project acceptance,after the construction has been completed,the relevant authorities can be charged with the acceptance procedures.Since the establishment of construction permits and acceptance mechanism,the utilization and development of uninhabited islands has become the joint obligation of all relevant authorities instead of being promoted only by the maritime affairs-related administrative department.For most islands of a small size,the mechanism has added to the responsibilities of relevant administrative authorities.In terms of legitimacy,this is beneficial to the protection of the interests of uninhabited island users.Besides,there is no legal risk to increasing the responsibilities of relevant administrative authorities,for relevant regulations may be refined and coordination may be strengthened in practice.

(3)Island utilization before theIsland Protection Lawand verification system

The most innovative mechanism under the Measures is the clarified provision on island utilization before theIsland Protection,which has not been covered under theIsland Protection Law.As provided under Article 23 of the Measures,developers and utilizers of uninhabited islands prior to the coming into force of theIsland Protection Lawshall complete all allocation procedures within 12 months from the date of the promulgation and implementation of the Measures,otherwise they will be investigated and punished in accordance with the law.In summary,for the first time,Article 23 clarifies the treatment of island utilization before theIsland Protection,and Article 24 has made it clear that county-level governments shall make detailed verification measures and enforce classified verification.Both Articles are aimed at effectively promoting the proper resolution of issues relating to the issue of island utilization before theIsland Protection.As regards county-level governments’verification measures,their legitimacy should be analyzed with a focus on relevant detailed regulations.Article 23 provides that“those who failed to do so shall be investigated and punished in accordance with the law”.The dilemma concerning the legitimacy of this article is to understand which law should,actually,be complied with.The absence of relevant provisions under a higher law is the biggest challenge faced by the Measures in its actual implementation.

4 Challenges for the development and utilization of uninhabited Islands in Hainan

The implementation of the Measures in Hainan Province successfully solved the difficulties in related administrative procedures on how to apply for“island ownership”and carry out construction projects on the islands.In practice,however,it may not be that simple.At the micro level,an island is as heterogeneous as a continental area[3].From a macro perspective,the development and utilization of uninhabited islands is also affected by macro policies and relevant laws and regulations.The main challenges in this regard are as follows:

4.1 Supply regulation premised on regulatory equilibrium

China’s island-related laws and regulations have provided strong support for the smooth progress in island protection.With island protection as the main goal for legislation,the number of islands in China set for development and utilization has been,thus far,rather insignificant.As at the end of 2017,China had approved the development and utilization of 26 islands⑭,accounting for only a small fraction of more than 11 000 islands across the country.This phenomenon can be accounted for from the perspective of regulation.Regulation generally refers to general rules or special measures made by an administrative department to directly intervene in the market allocation mechanism or indirectly change the supply and demand decisions of enterprises and consumers[4].For example,theIsland Protection Lawis one of the important legal and policy tools for regulating island development.In addition to the laws and regulations relating to islands,important national policies(such as the construction of ecological civilization)are also an important part of regulatory measures.The original motivations for government regulation should be to represent the interests of the public and maximize social benefits[5].Regarding the latter motivation,two level of issues need to be clarified:first,what are the standards for maximized social benefits as far as island management is concerned?To realize strict protection over all islands?What kind of development and utilization policies are in line with the requirements of China’s ecological civilization construction?Is the best standard to collect as many utilization fees as possible?Secondly,when examined in tandem with actual practices in Hainan,what is the role of the development and utilization of uninhabited islands where the issues of reform and opening up in Hainan are concerned?How can effective coordination be achieved between the development and utilization of uninhabited islands and the construction of Hainan International Tourism Island?How can Hainan effectively avoid the development of uninhabited islands being confused with the current creation of the artificial island,in addition to the planned real estate?Then there is also the matter of the personal goals of government officials–if these are incompatible with the government's goals for the development and utilization of uninhabited islands as well as public interests,then there is the likelihood that the goals harbored by the government will be changed[5].How can this be avoided?What can be done to prevent inaction and abuse of power?What can be done to effectively deal with uninhabited islands with a historical record of utilization and even a related ownership certificate?To solve the above problems,it is necessary to achieve reasonable supply regulation under the premise of regulatory equilibrium.

4.2 Spatialplanning with"Multiple-plan coordination"and coordination between regulations on sea areas and islands

In addition to supply regulation premised on regulatory equilibrium,attention should also be paid to the coordination between various types of spatial planning and that between regulations on sea areas and islands.

Since June 2015,Hainan Province has taken the lead in launching a provincial-level pilot program of“Multiple-Plan Coordination”at the provincial level,with the aim of integrating all planning into a blueprint.In April 2018,the Standing Committee of the Sixth People's Congress of Hainan Province reviewed theDecisions on Implementing the General Planning of Hainan Province,and announced the official implementation of the General Planning[6].The General Planning clearly divides Hainan into several functional zones,including the tourism and resort zone and the marine development zone.However,the development of uninhabited islands may cover these two functional zones,with coordination being maintained with other functional areas.For example,an uninhabited island to be developed into a tourism and resort island should not be too close to ports or industries and be consistent with the overall tourism development plan of Hainan,to alleviate the unbalanced development in different areas.Efforts should also be made to coordinate islands at national,provincial,and county levels by complying with requirements for island protection planning under theIsland Protection Law,in addition to the General Planning of Hainan Province.When planning a specific island,it is necessary to avoid the previous situation of"a set form for all cases"and low-end and low-level development of the island.

Quite different from a lake island or a river island,an offshore island is clearly defined under theIsland Protection Lawas“naturally formed pieces of land surrounded by water that are above water at high tide,including inhabited and uninhabited offshore islands,”and“the protection of offshore islands”means“the protection of the ecosystems of offshore islands and their surrounding waters,the protection of natural resources of uninhabited offshore islands and the protection of offshore islands for special use.”⑮.As defined under theLaw of the People’s Republic of China on the Administration of the Use of Sea Areas,an important law on China’s sea area management,"sea area"refers to“the sea surface,water volume,seabed and subsoil of the inland waters and territorial seas of the People’s Republic of China”⑯.One of the challenges in this regard is the laws and regulations applicable to the management of surrounding waters of an island.Undoubtedly,theIsland Protection Lawand the Measures are applicable to the development and utilization of uninhabited islands.However,the development and utilization of islands will certainly involve the development and utilization of their surrounding sea areas,the governing laws on which remain controversial.The application of theLaw of the People's Republic of China on the Administration of the Use of Sea Areasalso involves the legal coordination with theIsland Protection Law.

5 Suggestions for improving the development and utilization of uninhabited islands in Hainan

For the purpose of effective development and the utilization of uninhabited islands in Hainan,maximal social benefits cannot be realized merely through prospective island owners’application for development and the utilization of uninhabited islands.In addition to applicants,Hainan’s provincial-level maritime affairs-related administrative departments should play an important role in strengthening the top-level design and making overall balanced considerations.In actual practice,attention should be focused on the following aspects:

5.1 Refine and coordinate the general planning

In order to promote the implementation of Hainan’s General Planning,efforts should be made to clarify the various functional zones and make specific plans for each functional zone.Meanwhile,when it comes to the planning of sea areas surrounding an uninhabited island,coordination should be maintained between marine functional zoning at all levels and between island protection plans at the national,provincial,and county levels.Besides,for an uninhabited island to be developed and utilized,it is necessary to make an overall plan of the island and its surrounding sea areas.Planning should go first before actual development to ensure that consistence is achieved between plans on islands and those on surrounding sea areas and that the planning is conducive to the long-term sustainable development of the islands.The best use should be made of relevant national authorizations on the coordination between the legal regulations and zoning of offshore islands.What is more,efforts should be made to speed up the demarcation and delimitation of the island's shorelines and promote pilot projects on reforms to streamline administration,delegate more powers to lower-level governments and society,improve regulation and optimize services.

5.2 Innovate on systems and procedures on the utilization of islands

Despite verification by relevant authorities,the utilization of uninhabited islands in China may involve issues relating to the island utilization before theIsland Protection Law.Nonetheless,from the experience in the development and utilization of uninhabited islands in other provinces of China,efforts should be strengthened on island verification in the process of selecting uninhabited islands for development.To ensure that there are no disputes over uninhabited islands prior to their utilization and development and in order to protect the legitimate rights and interests of applicants,Hainan provincial-level maritime affairs-related administrative departments should cooperate with other relevant departments in internal procedures.

Many provinces,including Hainan,are stepping up efforts to promote ecological civilization construction.They are giving priority to protection,with the aim of achieving the harmonious coexistence of man and nature.As an important window for China's reform and opening up and a special economic zone with a history of 30 years,Hainan Province should speed up efforts in this regard in line with the central government’s requirement of deployment first.Apart from general measures,several polices can also be tested on offshore islands,which,as a special geographical area,have great potential for utilization.Therefore,a clear list should be made of uninhabited islands under development and utilization.To maintain the balance of protection and demand,a list of uninhabited islands under development and utilization should be made over a period of 15-30 years,in an effort to promote sustainable development and the utilization of islands in phases.

5.3 Promote the development and utilization of uninhabited islands through protective development in line with international standards

The utilization of uninhabited islands in China is still under development.In contrast,China’s island tourism resources have been in shortage,driven by the Chinese growing demands for island tourism.The recent excursion boat accident in Phuket,Thailand⑰has reflected not only issues related to safety supervision,but also,to a certain extent,the insufficient supply of islands and coastal tourism resources in China,one reason for which is the low-level supply⑱and market disorder of China's island tourism,preventing Hainan from becoming a well-known international tourism island.On the other hand,as precious natural resources,islands should be developed in adherence to the basic road of protective development,rather than merely through large-scale capital input as,is the case in urban development.For example,specific experience of the Maldives,whose development has reached international standards,can be drawn upon in the development and operation of a tourism island.

6 Conclusion

The development of uninhabited islands involves a wide range of complex issues.With the release of the Measures,island enthusiasts can apply for the development and utilization of uninhabited islands and ultimately achieve their dreams of becoming an island owner.However,in the process of actual implementation,relevant regulators need to predict problems they may encounter,and resolve them in a proactive manner,so as to realize the protective development of uninhabited islands.

Exegetic:

①A Brief introduction to the Global Chinese Island Owner League.Retrieved on July 7,2018 at http://www.daozhu.org/bbx/547754-547754.html.

②A Brief introduction to the Global Chinese Island Enthusiasts Association.Retrieved on July 7,2018 at http://www.dao36.com/bbx/2328542-2328542.html

③The“island”referred to in the name of the above organizations includes offshore islands,lake islands and river islands.

④Rounded to 5 decimal places.

⑤Repealed and expired.

⑥For example:Measures on the Administration of the Protection and Utilization of Uninhabited Islands of Xiamen and Regulations on the Administration of the Uninhabited Islands of Ningbo.

⑦About the cool water island,see http://projects.upei.ca/iis/cold-water-tourism/

⑧E.g.:Hainan Province Allows Individuals to Develop Uninhabited Islands and Become Island Owners.Available on September 5,2018 at http://language.chinadaily.com.cn/2018-07/06/content_36524225.htm July 15th,2018.

⑨Article 5 makes it clear that application for the development of the following islands or in the following cases should be examined and approved by the State Council:offshore islands where the base points of territorial waters are located;offshore islands for national defense use;offshore islands within marine nature reserves;areas where land reclamation from the sea to link islands may cause disappearing natural attributes of offshore islands;areas where dramatic changes may be caused to offshore islands in terms of natural topography and landscape and offshore islands may be caused to disappear;lastly,the other use of islands as prescribed by the State Council.

⑩The main contents of relevant laws,regulations,and documents can be retrieved from the Search and Application Platform for Sea Areas&Offshore Island Laws and Regulations(http://chineseislandandsealaws.com/).

⑪The provincial planning here refers to the Hainan Provincial Master Plan(Spatial Category 2015-2030).

⑫A case in point is the Hainan Provincial Rural Tourism Master Plan(2014-2020).

⑬Examples include:Compiling Requirements for the Demonstration Report on the Development and Utilization of Uninhabited Islands,Compiling Requirements for the Detailed Plans on the Development and Utilization of Uninhabited Islands,and Specification for Surveying the Development and Utilization of Uninhabited Islands,among others.

⑭Source:2016 Statistical Bulletin on Islands in China&2017 Statistical Bulletin on Islands in China.

⑮Article 2 of Island Protection Law.

⑯Article 2 of Law of the People’s Republic of China on the Administration of the Use of Sea Area.

⑰Excursion Boat Accident in Phuket,Thailand.Retrieved on August 4,2018 at http://www.eefung.com/hot-report/20180713142918.

⑱Price is not the only measurement for the"low-end"here.