A Study On The Protection Of Seafarers' Rights And Interests By Soft Law

The healthy development of the seafarer industry is of vital importance to the national interests and is an important guarantee for our country to implement the strategy of maritime power and shipping power.In recent years,the protection of seafarer's rights and interests(SRIs)has gradually attracted the attention from the theory circle.Due to some complex reasons,such as involving multiple legal departments,links,etc,the existing research mainly focused on labor law or concerning 'Maritime Labour Convention,2006',and not form a complete unified theory system perspective.The study of fragmentation status has limited effect on improving current situation of SRIs.At present,our country vigorously promotes the rule of law,and social governance is in a transitional period.Different from the 'national compulsory force guarantee'characteristic of hard law,soft law focuses on social effect,cognitive conflict between positivist jurisprudence and sociological jurisprudence on how to define law is fully demonstrated in the field of soft law.Soft law is highly consistent with the concept of social development.The theory of soft law has great expansibility,and it is undoubtedly of great theoretical value and significance to apply the soft law and relevant theories to the protection of SRIs.This paper combined with the operation of public power,discusses and analyzes the corresponding concepts of state soft law,social soft law,international soft law from a multidimensional perspective,and provides a reference scheme for the theoretical and practical circles to explore the establishment of a comprehensive system framework for the protection of the SRIs.In addition to the introduction and conclusion,this paper includes 6 parts:Chapter 1:Firstly,the concept of seafarer and rights and interests involved is defined according to the research needs of this paper.Through comprehensive statistical analysis of various data,it is concluded that the seafarer group has begun to decline in both quantity and quality.It is necessary and urgent to protect SRIs.In practice,the hard law is insufficient to effectively protect the SRIs,which leads to the continuous decrease of the social evaluation and intensifies the decline trend of the seafarer group.The soft law theory provides a new way to solve the problem of SRIs'protection.Chapter 2:Comprehensively discuss on the theories of soft law,minority,vulnerable groups and public power.After the comprehensive interpretation of soft law,the soft law and the sociology of law are the inevitable choice in the development of the seafarer's social governance.Soft law can effectively make up for the deficiency of hard law in the protection of SRI,and its more profound significance lies in the reconstruction of the concept of law,which makes it possible to bring part of public power that is still operating outside the law into the scope of law and subject to its regulation.The guarantee of SRI cannot be separated from public power.The power of alienation needs to be counterbalance to the power,and the power of the state is the main object of counterweight because of its innate advantage.Besides restrict the state public power by internal separation and the formation of other public powers,it is also an effective way to improve the way of power operation,that is soft law.This chapter extends from the theory of human rights to the minority theory and the theory of vulnerable groups.Through comparison and value sorting,it finally concludes that Chinese seafarers have the dual attributes of minority and vulnerable groups,and it is legitimate and necessary to give special protection to their rights and interests.Chapter 3:This chapter further analyzes the advantages of the soft law in ensuring the SRI,and demonstrates that the soft law can not only compensate for the deficiency of hard law,but also have profound significance by the reconstruction of the concept oflaw and regulate more public power into law category,thus enhance the level of legalization in the seafarer field.Through the analysis and induction of the practice and system of the typical countries,it is concluded that the experience of the relevant countries in ensuring the SRI is not only the active method of hard law,but also by the soft law and get good effects.Chapter 4:In the context of international law,the composition of soft law is also quite rich,including international treaties without compulsory obligations,transnational agreements made with the participation of non-governmental organizations,and soft law clauses in the legal system.Soft law has become an important part of the international maritime convention and plays an important role in guiding states parties to implement the treaty.In the maritime field,the implementation of the international maritime convention has an important impact on the SRIs.With the implementation of the compulsory audit mechanism of IMO,the binding force of the international maritime convention shows a trend of strengthening,and the role of soft law is increasingly prominent.By conclude the international soft law's specific performance and development in 3 maritime conventions(SOLAS,STCW,MLC 2006).In the end,this paper makes a special study on the memorandum of port state,a special form of international soft law,in order to improve China's performance of the international seafarer's maritime conventions and safeguard SRIs.Chapter 5:Analyzing the problems in the protection of SRIs from the perspective of national and social soft law.On one hand,China is weak in the research field of social soft law;on the other hand,the phenomenon of social soft law is widespread in practice and plays an increasingly important role.Therefore,this paper focuses on the discussion of social soft law.Specific areas covered in this chapter include:Due to the lack of cross-functional division of responsibilities between departments and the lack of transfer mechanism,the punishment for the violation of SRIs are ineffective;The weakness of seafarer social organization leads to the low degree of seafarer autonomy and the lack of qualified spokesmen in law and policy making;The order and self-discipline of seafarer market call for the construction of credit system etc.The value of soft law is highlighted through the analysis and research on solving in the problems in related fields.This chapter also analysis some problems in implementation of mentioned above conventions.Chapter 6:On one hand,the application and theoretical research of soft law should be strengthened.This paper puts forward the idea of soft law which is combined soft law and public power.At the same time,through the coordination with the hard law,under the dual track framework of the soft law and the hard law,a legal system and related soft law system conforming to the protection of SRIs should be gradually constructed.On the other hand,from the perspective of the realization path,combined with the problems related to the protection of SRIs mentioned above,it is proposed that various public power subjects continuously promote the protection of SRIs through collaboration,and create a situation of co-governance of hard law and soft law in the seafarer field.Puts forward a series of comprehensive suggestions,including advocated to strengthen cooperation with international crew union organizations,improve departmental coordination mechanism,and improve the standard system etc..