2015년 12월 16일 수요일

Trans-Pacific Partnership (TPP) as a US Strategic Alliance Initiative under the G2 System: Legal and Political Implications

Eric Yong Joong Lee Dongguk University College of Law
562 Gwangnaruro, Kwangjin-gu #201 Seoul 143-821 Korea
Corresponding Author: grotian@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
"The rise of China" is a critical issue of the twenty-first century's world politics. China is leading the new bipolar system in the post-Cold War period with the US. As the American dominance in East Asia became weaker, the old containment could not be fully implemented anymore. As a result, a new comprehensive strategic initiative covering the whole Pacific coastal States is being adopted. The outcome of this transformation is the Trans-Pacific Partnership (TPP), which was reached on October 5, 2015. This article aims to analyze the newly arisen TPP as a post-Cold War strategic alliance of East Asia. The TPP is a mega regional trade agreement. Its predictable legal setting is thus indispensable for the peaceful coordination of competition between both sides. The TPP could be a firm ground for the stability of this region, sharing the vision of cooperation, not confrontation in the future.

Keywords : TPP, Containment, New Bipolar System, China, Mutual Defense Treaty, Pivot to Asia, One Belt, One Road Initiative, RCEP

The Full Text is available at: http://journal.yiil.org/home/archives_v8n2_02

The Rights of Mongolia's Internal Migrants under International Law: Climatic, Domestic and Commercial Responsibilities

Benoît Mayer National University of Singapore, Singapore
Eu Tong Sen Building, 469G Bukit Timah Road, Singapore 259776.
Corresponding Author: bmayer@nus.edu.sg
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Over the last decade, 350,000 people have moved from Mongolia’s countryside to the suburbs of its capital, Ulaanbaatar, where they live in abject poverty despite the rapid economic development of the country. This article proposes three complementary international legal analyses of this internal migration. First, because this migration is partly and indirectly induced by the adverse impacts of climate change, States have a common but differentiated responsibility to assist the Mongolian government to address climate migration. Second, Mongolia should bear its own responsibilities to take steps to realize the social and economic rights of its population without discrimination. Third, Mongolia’s commercial partners should be warned against any control or influence that would cause harm to Mongolia, in application to public international law on State responsibility and to States’ extraterritorial human rights obligations. While each narrative reveals an important dimension of a complex phenomenon, this article argues that all policy levers must urgently be pulled to guarantee the rights of Mongolia’s internal migrants.

Keywords : Mongolia, Migration, Narratives, Climate Change, Development, Geopolitics, Environment, Human Rights.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.10

2015년 12월 15일 화요일

The Legality of Japan's Current Monetary Policy under International Law

John Riley Sogang University School of Law, Korea.
35 Baekbeom-ro (Sinsu-dong), Mapo-gu, Seoul 121-741 Korea.
Corresponding Author: johnriley007@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
In response to the 2008 global financial crisis, many of the world's largest central banks initiated unconventional monetary policies such as quantitative easing when standard open market operations became ineffective. The Bank of Japan, the US Federal Reserve, the Bank of England and the European Community Bank were among those that aggressively increased their respective monetary bases to purchase specified financial assets from commercial banks and financial institutions in order to lower interest rates interest rates for specific debt securities and stimulate their economies. Japan, which has long suffered from years of debilitating deflationary cycles, has targeted and committed to open-ended purchases until a stable two percent rate of consumer price inflation is achieved. Several of Japan's chief exporting rivals, in particular China, have publicly criticized the Bank of Japan for using its current monetary policy to intentionally devalue its currency and thereby benefit from an unfair trade practice. This criticism is unwarranted and Japan's policy complies with international law.

Keywords : IMF, WTO, Currency Devaluation, Exchange Rates, Quantitative Easing, Bank of Japan

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.09

Japan's Unspoken Currency Manipulation by Monetary Policies: A Chinese Lawyer's Perspective

Xin Chen Xiamen University Faculty of Law, China
Xiamen University, Faculty of Law, 422 South Siming Road, Xiamen, China, 361005.
Corresponding Author: echoflying@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
During the past few years, the Bank of Japan has injected billions of yen into the economy and pursued a monetary easing policy. Japan has plausible arguments, namely that its current policies are needed to support the growth of the economy and to spur inflation. However, these measures result in a weakened yen and increase trade imbalances between Japan and other Asian countries, particularly China. This article argues that Japan's practice is rooted in protectionism and examines such actions under the IMF Agreement and the WTO system. It is suggested that the Chinese government should adopt diplomatic and judicial approaches to urge Japan to return to normal monetary policies.

Keywords : Devaluation, Yen, Quantitative Easing Policies, Exchange Rates Manipulation, IMF, WTO

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.08

Is the so-called 'Rusk Letter' be a Critical Evidence of Japan's Territorial Claim to Dokdo Island?

Yuji Hosaka Sejong University, Korea.
313 Saenal-gwan, Sejong University Gunja-dong, Gwangjin-gu, Seoul 143-747 Korea.
Corresponding Author: hosaka@sejong.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This paper provides detailed analysis of the so-called 'Rusk Letter' which has been generally referred to as an evidence of Japan's territorial claim to Dokdo island. The Rusk Letter is a diplomatic epistle which was drafted by Dean Rusk, the US Assistant Secretary of State and sent to the Korean Embassy in the US on August 10, 1951. This letter considers Dokdo as Japan's territory. However, the Rusk Letter has been legally and historically criticized from mainly two aspects. First, the Rusk Letter referred to the ownership of Dokdo only considering the Japanese position which was not true. Second, this letter was a confidential and unofficial document which was sent only to Korea; Japan and even the US Embassy to Korea did not know the Rusk Letter. It did not influence on the decision of Peace Treaty. Therefore, the Rusk Letter cannot be a critical evidence of Japan's territorial claim over Dokdo.

Keywords : Rusk Letter, Dokdo, Takeshima, Territorial Claim, Evidence, San Francisco Peace Treaty, Cairo Declaration, Potsdam Declaration, US draft, US-British Draft

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.07

The Geneva II Peace Talks and the Syrian Conflict: Neglected Legal Elements

Medwis Al-RashidiKuwait University School of Law, Kuwait
P.O. Box 869, Ardiyah, Kuwait
Corresponding Author: profmedwis@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The Syrian conflict consists of political and legal components that can be managed under the UN Charter by both political and legal measures. As a result of Russian and Chinese vetoes, the UN Security Council has failed to resolve the conflict by forcible measures, although the Council was able to convene the Geneva II peace talks between the Syrian government and the Syrian opposition on January 24, 2014. The legal aspect of this conflict has been referred to in numerous reports from UN bodies that have emphasized that war crimes have been committed by the Syrian government. Thus, we believe that the UNSC has an obligation to submit this case to a court with appropriate international jurisdiction for its legal resolution. This legal solution should be part of a compromise that satisfies Russia and China pursuant to a Security Council resolution under Chapter VII of the Charter that accompanies the peace talks.

Keywords : Syrian Conflict, UN Security Council, Geneva II peace talks, Geneva Convention, Crimes against Humanity, HRC, IICISAR, Rome Statute

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.06

Haunting Phantom on the Way to the Korean Reunification? The Chinese People's Volunteer Army in the Korean War and Its Legal Questions

Eric Yong Joong Lee Dongguk University, college of Law; YIJUN Institute of International Law
562 Gwangnaruro, Kwangjin-gu #201 Seoul 143-821 Korea
Corresponding Author: grotian@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Although relationships among the former belligerent parties of the Korean War have changed drastically over the decades, the parties still remain under the armistice system because the Korean War is not over legally. The primary purpose of this research is to analyze questions related to the Chinese People's Volunteer Army in the Korean War from an international legal perspective. As a new topic, this is intended to be a precautionary examination of an issue that could haunt the eventual process of peacemaking on the Korean peninsula. The main text of this article consists of three parts. The first examines whether the Chinese People's Volunteer Army's entering the Yalu River was self-defense under Article 51 of the UN Charter. The second part covers various legal questions relating to armed hostilities in the Korean War under international law. The third part discusses the legal questions around an armistice negotiation.

Keywords : CPVA, Korean War, Armistice, POWs, 38th Parallel, Self-Defense, UN Forces, MacArthur, Peng Teh-Huai

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.05

International Trade "from Status to Contract" and Back: A Critique of the NME Normal Value Determination and Beyond

Wenwei Guan The City University of Hong Kong School of Law, Hong Kong
School of Law, City University of Hong Kong, 83 Tat Chee Ave., Kowloon, Hong Kong SAR
Corresponding Author: w.guan@cityu.edu.hk
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This paper critically examines the normal value determination of NME and its implications for the purpose of contributing to Doha antidumping reform deliberation. From domestic to international arenas, antidumping development sees the significant growth of government paternalistic discretion turning antidumping into a distributive instrument challenging constitutionalism. Deeply rooted in the ideological divide of the 1950s, NME methodology's obsession with national divide turns free trade from traders' commutative exchange to nations' distributive predation. NME distributive discretion, though against the free market principle, is ironically used to accuse foreign economies of not being free-market enough. When products and producers are given certain status via nationality instead of treated individually, antidumping development has been a process "from Status to Contract" and back. Therefore, it is time to de-legitimize the NME methodology, and the success of antidumping reform lies in limiting rather than deferring to governments' paternalistic discretion, thus strengthening the international rule of law in the context of WTO.

Keywords : Antidumping, From Status to Contract, Normal Value, Nonmarket Economy, Dumping Determination, WTO

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.04

Restricting Biofuel Imports in the Name of the Environment: How Does the Application of WTO Rules Affect Developing Countries?

Haniff Ahamat & Nasarudin Rahman
Haniff Ahamat
International Islamic University Malaysia, Malaysia
AT O. Box 10, 50728, Kuala Lumpur, Malaysia
Corresponding Author: ahaniff@iiu.edu.my
Nasarudin Rahman
International Islamic University Malaysia, Malaysia
ATO. Box 10, 50728, Kuala Lumpur, Malaysia.
Corresponding Author: nasarudin@iium.edu.my
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
There are calls for biofuel imports from developing countries to be restricted. The imports which are either in the form of end-product (bioethanol or biodiesel) or feedstock (oil palm, sugar cane molasses, etc) are allegedly produced in ways which can threaten the environment and violate human rights. This article finds that there is no specific regime for trade in biofuels within the WTO system. Hence any restriction on such trade is governed by the existing trade regimes including tariffs and non-tariff measures. However, the existing WTO tariff and non-tariff (TBT, anti-dumping and anti-subsidy) regimes are still inadequate in ensuring that measures are taken against biofuel feedstock and products that were produced in unsustainable ways. The use of these measures without being subject to clear defining rules will create a danger that they serve a protectionist rather than social or environmental objectives.

Keywords : WTO law, International Environmental Law, Renewable Energy, Like Products, Sustainable Development, Special & Differential Treatment

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.03

Who Threatens Whom? The 'Chinese Threat' and the Bush Doctrine

Dong Chen Sun Yat-sen University, P. R. China
Sun Yat-sen University, School of Law, P. R. China, 510275.
Corresponding Author: cd1117@sina.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
'Chinese threat' is highly controversial in international academia. This article attempts to expose the China threat and provide a comprehensive analysis as to the extent of the so-called threat. The essence of the 'Chinese threat' is based on misunderstandings concerning Chinese culture, on ill- reasoned historical experiences of rising powers and conflict, on the great gap between Christian and Chinese culture, and on the inherent nature of expansiveness of the former. In contrast, the Bush Doctrine (including the preemptive strike theory) poses an actual threat to China, as does the US protection of Japan unconditioned on Japanese admission and repentance for heinous war crimes committed during World War II. Treating China as an equal is the best policy that could be employed by the West. China's unification and domestic stability would greatly contribute to world peace, while supporting the China threat ideology would have the opposite effect.

Keywords : Chinese Threat, Bush Doctrine, Chinese Culture, Christianity, Evangelical, Axis of Evil

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.02

Human Rights of Guantánamo Detainees under International and US Law: Revisiting the US Supreme Court Cases

Patricia Goedde Sungkyunkwan University School of Law, Korea
25-2, Sungkyunkwan-ro, Jongno-gu, Seoul 110-745 Korea.
Corresponding Author: pgoedde@skku.edu
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This article reviews the US Supreme Court cases regarding detention of alleged terror suspects in Guantanamo Bay, Cuba, and examines the interplay between international human rights law and the American Constitution with respect to the executive policies of the Bush Administration to detain terror suspects. The article first references the international human rights legal framework regarding detainees, specifically the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, and then analyzes seminal cases brought before the Supreme Court by detainees, specifically how the Supreme Court interprets the US Constitution and international law in reaching its decisions regarding detainees at Guantanamo. While the Supreme Court provided detainees the right to challenge the legality of their detentions through habeas corpus petitions, limitations still exist as to the lack of extraterritorial application of rights protections as well as the domestic judicial failure to redress detainees' subjection to torture and other abusive treatment.

Keywords : Guantánomo, Detainees, Habeas Corpus, US Supreme Court, Common Article 3, Geneva Conventions, US Constitution

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2014.7.1.01

Reasonable Suspicion: Gloomy Future of the Kyoto Protocol

Kelly Gieop Na Dongguk University, Korea
College of Law, Dongguk Univ., Pil-dong 3-ga, Jung-gu, Seoul, Korea.
Corresponding Author: boulez25@naver.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
About 25 years ago, the Intergovernmental Panel on Climate Change claimed that the greenhouse gases, in particular Carbon Dioxide, are mainly responsible for global warming and its adverse effects. The claim rapidly became an absolute and incontrovertible truth regardless of countless scientific counter-evidences. Such international trend was directed to a birth of the United Nations Framework Convention on Climate Change and the Kyoto Protocol, the detailed norm to the Convention. Even to this very day, the "man-made climate change" operates as implicit prerequisite of continuing international climate conferences and international environmental law studies. The paper tries to introduce a viewpoint from the scientific skepticism towards man-made climate change and figure out the political calculations inside Kyoto Protocol. Through this, the author demonstrates that serious concern about the environment barely exists in current climate response system and attempts to adduce suggestions that should be made in future climate change conferences.

Keywords : Climate Change, Fossil Fuel, UNFCCC, Kyoto Protocol, Intergovernmental Panel on Climate Change, Global Warming, ETS, Common but Differentiated Responsibilities

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.10

Legal Basis of China's Claim over the Huangyan Island

Ran Guo East China Normal University, China.
School of Foreign Languages, East China Normal University, Shanghai, China, 200062.
Corresponding Author: rguo@fl.ecnu.edu.cn
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Official Announcements of China and the Philippines have clarified their claims over the Huangyan Island, which has compartmentalized its history into three periods. Period I: Before 1946. China had acquired its title by discovery of terra nullius, and consolidated into a full title with the historical consolidation process. The Philippines made no claims in this period; instead its laws confirmed the Island lies out of its territory. Period II: 1946-1997. The Philippine evidences are private in nature, or contradictory to its laws and governmental position, thus making its claims vulnerable. China had exercised an open and peaceful effective occupation over the Island with superior evidences. Period III: After 1997. According to the ICJ judgment, April 30, 1997 was tentatively determined the critical date. Since China acquired its territorial sovereignty over the Island before the critical date, the Philippines' acts can't alter China's ownership of the Island.

Keywords : The Huangyan Island, Territorial Acquisition, Critical Date, Inter-temporal International Law

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.09

The Philippine Claim to Bajo de Masinloc in the Context of the South China Sea Dispute

Lowell B. Bautista School of Law, University of Wollongong, Australia
Wollongong, NSW 2522 Australia.
Corresponding Author: lowellbautista@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough Shoal, finds solid basis in international law. The territorial claim of the Philippines over Bajo de Masinloc is strong relative to the claim of China as well as with respect to the principles on the acquisition of territory in international law, in particular, on the basis of effective occupation. The sovereign rights and jurisdiction asserted by the Philippines over the maritime entitlements of the features in Bajo de Masinloc are founded on principles of international law and consistent with the United Nations Convention on the Law of the Sea, which both the Philippines and China have signed and ratified. This paper aims to examine the Philippine claim over Bajo de Masinloc particularly focusing on the 2012 standoff between the Philippines and China and the arbitration case filed by the Philippines against China over the West Philippine Sea.

Keywords : Philippine claim, Scarborough Shoal, Bajo de Masinloc, South China Sea

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.08

Korea's Refugee Act: A Critical Evaluation under International Law

Andrew Wolman Hankuk University of Foreign Studies
270 Imun-Dong, Dongdaemun-gu, Globeedorm, #A806, Seoul, 130-791, Korea.
Corresponding Author: amw247@yahoo.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
On December 29, 2011, the National Assembly of the Republic of Korea passed the Law on the Status and Treatment of Refugees, which went into effect on July 1, 2013. The law was the culmination of years of effort by the government, NGOs, UNHCR and the lawmakers. It has been widely praised by civil society groups in Korea. However, there has been little critical analysis of its provisions whether it will truly be a successful legislation. This research critically evaluates whether the new law is likely to promote Korean compliance with international legal standards, namely, the 1951 Refugee Convention and major human rights treaties. It finds that while the law represents a significant improvement over current practices, it possesses problematic provisions related to detention, refugee determination, economic and social rights of asylum-seekers, and the treatment of recognized refugees. This essay will conclude by highlighting four outstanding implementation questions that could impact compliance with international standards.

Keywords : Refugee Act, 1951 Refugee Convention, UNHCR, Refugee Rights, Asylum-Seekers

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.07

Jus ad Bellum and Cyber Warfare in Northeast Asia

Boris Kondoch Far Eastern University
Eumseong-gun, Chungcheonbuk-do, Republic of Korea.
Corresponding Author: kondoch@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Cyber attacks have become a grave threat to international peace and security. Northeast Asia is a critical point of many of these cyber operations. First, South Korea has been the target of cyber attacks from North Korea. Second, there are harsh debates on this matter between the US and China. While the United States have expressed their concerns about the growing threat of cyber intrusions from China, the People's Republic of China has blamed the US for attacks against their respective computer networks. From the perspective of the jus ad bellum, potential cyber attacks raise a number of difficult and complex issues. The following article examines which cyber operations amount to the use of force as stipulated in Article 2(4) of the UN Charter and discusses the conditions under which type of cyber attacks could trigger the right to self-defense. In addition, other available remedies outside the framework of Article 51 of the UN Charter will be discussed.

Keywords : Cyber Attacks, Jus ad Bellum, Right to Self-defense, Armed Attack, Accumulation of Events, Pre-emptive Self-defense, Security Council, International Court of Justice, International Criminal Court, Counter-measures

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.06

Freedom of Religion and Apostasy under International Law: With Special Reference to Article 11 of the Malaysian Federal Constitution

Ahmad Masum & Nehaluddin Ahmad Universiti Utara Malaysia
06010 UUM Sintok, Kedah Darul Aman, Malaysia.
Corresponding Author: ahmadnehal@yahoo.com / nehaluddin@uum.edu.my
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The right to freedom of religion is one of the fundamental rights guaranteed in many international and regional human rights instruments. Several international documents safeguard freedom of religion including the right to convert from one faith to another. In Malaysia, the safeguard of this fundamental right is provided under Article 11(1) of the Federal Constitution with some limitations. The right to convert out of one's faith is not mentioned explicitly. However, for the non-Muslims, this right to opt out of one's faith and choose another has been regarded as an implicit part of religious liberty guaranteed by Article 11. In relation to the Muslims, the issue of apostasy is regarded as a taboo as well as a politically explosive proposition. This paper aims to examine the concept of freedom of religion under international law focusing mainly on the issue of apostasy in the context of the Malaysian Federal Constitution. The paper concludes that the position of Muslims especially in the context of embracing a new religion remains unsettled.

Keywords : Declaration of Religion, Freedom of Religion, Muslim, Apostasy, UDHR, ICCPR, Malaysian Constitution.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.05

To Apply or to Declare, or Both? Links between the Two Types of Intervention under the ICJ Statute

Hyun Seok Park Hongik University, Seoul, Korea
94 Wausan-ro, Mapo-gu, Seoul, 121-791, Korea.
Corresponding Author: ctrl_83@hanmail.net
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
It is conceivable that the construction of a convention is in question in a case brought before ICJ and a State that is a party to the convention but not to the case has legal interests which may be affected by the construction given by the judgment in the case. As hinted at in the Whaling in the Antarctic case and the Sovereignty over Pulau Ligitan and Pulau Sipadan case, such a third State might intervene in the proceedings under Article 62 as well as Article 63 of the Statute unless it should be interpreted otherwise. In light of relevant provisions of the Statute and jurisprudence of the Court, this paper explores the question whether such a State has the choice, to submit an application to intervene under Article 62 or to make a declaration of intervention under Article 63.

Keywords : Intervention as of Right, Discretionary Intervention, Non-Party Intervener, Intervener as a Party, ICJ Statute, Article 62, Article 63

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.04

Trans-Pacific Partnership and the Multilateralization of International Investment Law

Congyan Cai Xiamen University, China
Faculty of Law, Xiamen University, Xiamen City, Fujian Province 361005 CHINA.
Corresponding Author: caicongyan@xmu.edu.cn
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The Multilateralization of international investment law has seen repeated disappointments over the past six decades. Current negotiations regarding the Investment Chapter within the Trans-Pacific Partnership Agreement may bring about a new promise for this process. It is necessary for the TPP negotiating parties to have a proper understanding of this recent history. Circumstances under which the TPP negotiations are conducted are quite different from those of the past. Thus, it can be assumed that TPP negotiations will be concluded successfully and may have profound implications on the multilateralization of international investment law. Since TPP negotiations have multilateral consequences, several new initiatives have been proposed amongst the TPP negotiating parties, which may help alleviate the 'legitimacy crisis' of the past two decades. These initiatives include a new principle of Special and Differential treatment, operative provisions on investment promotion, a Side Agreement on code of conduct of transnational corporations, and an appellate mechanism for reviewing arbitral awards

Keywords : Trans-Pacific Partnership, International Investment Law, Multilateralization

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.03

Legal Feminism and the UN's Gender Mainstreaming Policy: Still Searching for the Blind Spot?

Seryon Lee Chonbuk National University, Jeonju, Korea.
567 Baekje-daero, Deokjin-gu, Jeonju-si, Jeollabuk-do, 561-756 Korea.
Corresponding Author: seryon@jbnu.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This article primarily assesses feminism's achievements and challenges, particularly within the framework of the UN gender mainstreaming policy. The first part of the article explored different feminist inquiries into general law to question whether such inquiries have been successfully or properly reflected in the UN gender mainstream process. The second part focused on the progress made by the UN Security Council through its series of resolutions on Women, Peace and Security to examine the ways in which international institutions and international legal categories tend to exclude women and the issues of most concern to women. This analysis, owing much to the extensive literatures on female analyses on international law in the last two decades, led to the conclusion that despite the significant progress that has been made by feminist international lawyers, there remain many ongoing challenges before international law may fully embrace and reflect 'true' feminist values.

Keywords : Liberal Feminism, Gender Mainstreaming, SC Resolution 1325, SC Resolution 1820, Beijing Declaration

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.02

Implementation of the Convention on the Elimination of All Forms of Discrimination against Women in Japan

Yoko Hayashi Athena Law Office, Japan
4th floor, Kaishin Building, 7-12-5 Ginza, Chuo-ku, Tokyo, 104-0061 ,Japan.
Corresponding Author: hayashi@athena-law.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Upon Japan's ratification of the Convention on the Elimination of all forms of Discrimination against Women in 1985, certain law reforms for gender equality were realized. However, international human rights law has impacted limitedly on the Japanese judiciary. The Women's Convention has been invoked by parties in a number of cases, but so far has never been positively quoted by the courts. On the other hand, the jurisprudence of individual complaints under the Optional Protocol of the Women's Convention (CEDAW-OP)has developed significantly. This paper introduces the case law of the individual complaint procedure of the Women's Convention, and identifies its significance in comparison with Japanese jurisprudence. As the jurisprudence of individual complaints under the Women'sCEDAW Convention is still in the law-making stage, the author encourages the Japanese government to ratify the Optional Protocol so that it can participate in the process of developing this jurisprudence.

Keywords : Gender Equality, CEDAW, The Women's Convention, UN Women, Optional Protocol, Individual Complaint, CEDAW-OP, Japan

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.2.01

Trespass to Airspace: How to Deter North Korea from Its Space Ambitions?

Kelly Kuan Shang Maastricht University Faculty of Law
P.O. Box 616, NL-6200 MD Maastricht, The Netherlands.
Corresponding Author: kelly.shang@maastrichtuniversity.nl
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
In deterring North Korea from pursuing its space ambitions, the neighboring States may consider to advance a sovereignty argument that North Korea's overflying rockets have trespassed to their territorial airspace. The current UNSC Resolution-based arguments may not provide adequate deterrence because they are built upon a unilateral interpretation of the UNSC Resolutions and therefore lack legal persuasiveness. Currently, there is seemingly a strong international consensus favoring the demarcation line between airspace and outer space at approximately 100-120 kilometers above the sea level. As the North Korean rockets will likely overflow foreign territories when reaching to this altitude, a trespass claim should therefore have strong legal merits. Moreover, North Korea cannot raise a defense by claiming a right of innocent passage over foreign airspace, because such right does not exist as a customary international law. Even if such right exists, North Korea will be hard to rely on it because its overflying rockets are hardly 'innocent.'

Keywords: Satellite Launch, Air Sovereignty, NPT, Outer Space Treaty, Ballistic Missile, Right of Innocent Passage.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.10

A Consideration of the so-called Comfort Women Problem in Japan-Korea Relations: Embracing the Difficulties in the International Legal and Policy Debate

Koji Teraya University of Tokyo
Building 3 of Faculty of Law, the University of Tokyo, 7-3-1 Hongo, Bukyo-ku, Tokyo, Japan 113-0033.
Corresponding Author: teraya@j.u-tokyo.ac.jp
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The main purpose of this short essay is to mitigate harsh debate about 'comfort women.' Although it is not expected to be resolved in the foreseeable future, understanding the structure of the problem based on the fact-finding and legal analysis would enable the two peoples to seek a better solution. The author claims that: (1) although some of the historical facts remain unclear, and some people tend to focus too much attention on fact-finding, from the viewpoint of international law, sufficient evidence has been revealed to confirm Japan's responsibility for its conduct in the Second World War, and Japan does not and should not deny the relevant historical facts; (2) Japan was absolved of its responsibility by the 1965 Agreement in a legal sense; and (3) having said that, this case reveals the limits of the positivistic legal approach, and the Asian Women's Fund can be one legitimate way of dealing with this problem.

Keywords: Enforced Sexual Slaves, Crimes against Humanity, Reparation for Individual Victims, The 1965 Korea-Japan Agreement, The San Francisco Peace Treaty

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.09

Remedying "Enforced Sexual Slavery": Validating Victims' Reparation Claims against Japan

Seong Phil Hong Yonsei University School of Law
50 Yonsei-ro, Seodaemun-gu, Seoul 120-749 Korea.
Corresponding Author: hsphil@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
It has been over two decades since the Japanese practice of enforced sexual slavery began to receive widespread attention. Yet despite numerous international efforts to urge Japan to squarely acknowledge its moral and legal responsibility, there has been no meaningful progress to resolve this matter. This work revisits the issue of enforced sexual slavery as it stands today. The Japanese practice of enforced sexual slavery was a clear violation of international law at the time. Therefore, individual victims have valid legal claims for reparation against the Japanese government. The first half of this article reconfirms the illegality of the practice of enforced sexual slavery. The remainder summarizes and vindicates the claims of the victims once again. This research suggests how to remedy the victims' rights and discusses how to implement reparation. It also contends that Japan owes reparations and legitimate remedial measures to the victims that go beyond monetary compensation in line with the rules of contemporary international law.

Keywords: Enforced Sexual Slaves, Crimes against Humanity, Reparation for Individual Victims, The 1965 Korea-Japan Agreement, The San Francisco Peace Treaty

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.08

Legal Issues of China's Possible Participation in the International Space Station: Comparing to the Russian Experience

Yun Zhao University of Hong Kong Faculty of Law
Cheng Yu Tung Tower, Faculty of Law, The University of Hong Kong, Pokfulam, Hong Kong.
Corresponding Author: zhaoy@hku.hk
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
China has made great achievements in space activities in recent years. While emphasizing the principle of self-independence, China also acknowledges the importance of space cooperation. As early as 2001, China indicated its interest in joining the International Space Station. However, no substantive progress has been made concerning China's participation thus far. This may be a result of political and economic, rather than legal and technical, considerations. There is no doubt that China's participation shall contribute to the sustainable development of the ISS. China's participation could also offer an excellent opportunity to reexamine the 1998 framework and clarify or improve certain provisions that exist in the current regime. While technologically ready for participation, China should start considering possible legal issues that may arise from its participation in the ISS project. This article takes up the challenging task of identifying potential legal issues that may arise in the course of China's participation in the ISS and offers suggestions for a future cooperative legal framework regarding the ISS.

Keywords: International Space Station, Space Cooperation, Inter-Governmental Agreement, Outer Space Treaty

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.07

China's Basepoints and Baselines under the United Nations Convention on the Law of the Sea: A Critical Analysis

Hyunsoo Kim Inha University School of Law
100 Inharo, Nam-gu, Incheon 402-751 Korea.
Corresponding Author: kimhsoo@inha.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
China's straight baseline regime deviates from the UN Convention on the Law of the Sea in a number of ways. Such discrepancies are likely to induce legal and political conflicts between countries, and also the settlement of which would not be easy, in particular, among the East Asian countries. In consideration of this point, the legal issues surrounding China's straight baselines and basepoints should be analyzed and evaluated not only from the perspectives of UNCLOS, but also through comparative analyses based on customary international law, State practices, and special circumstances. Many of China's State practices and laws based on straight baselines are neither in accordance with international laws, nor generally recognized as being in accordance with the international law of the sea. This paper provides important legal insights into China's straight baselines, which are unlawful from the perspectives of UNCLOS and State practices, and, in addition, suggest desirable ways to solve the problems in international laws.

Keywords: Basepoint, Straight Baseline, Territorial Sea, UNCLOS, State Practice, Special Circumstances, Maritime Boundary Delimitation

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.06

The UNCLOS and the US-China Hegemonic Competition over the South China Sea

Kamrul Hossain Northern Institute for Environmental & Minority Law, Arctic Centre of the University of Lapland.
PO Box 122, Arctic Centre, University of Lapland, Fin-96101 Rovaniemi, Finland.
Corresponding Author: khossain@ulapland.fi
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The South China Sea is a semi-enclosed sea with a complex set of territorial claims by a number of Southeast Asian nations and China being the dominant claimant country. The United States is not a party to such claims. However, the US has great concerns pertaining to peace and stability of the region as far as freedom of navigation in the SCS is concerned, which has significant repercussions for its strategic interests. In addition to the utilization of the SCS as an important international trade route, the US is also committed to protect the interests of its allies in the region, as well as those of its companies involved in offshore hydrocarbon activities. In the aftermath of the September 11 terrorist attack, the dynamics of a new world order push the US to strengthen its presence in the region in order to combat any security threats against its interests. This article investigates China-US relations in the SCS and highlights the law of the sea prescriptions that facilitate the understanding of the legal nature of the tensions between China and the US.

Keywords: UNCLOS, South China Sea, US-China Conflict, U-shaped Line, Strategic Partner, Security Interest

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.05

'Human Dignity' as an Indispensable Requirement for Sustainable Regional Economic Integration

Seung Hwan ChoiKyunghee University School of Law
26 Kyunghee-daero, Dongdaemun-gu, Seoul 130-701 Korea.
Corresponding Author: tomichoi@khu.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.
Abstract
This article proposes the principle of human dignity as an indispensable requirement for sustainable regional economic integration, especially in East Asia. The contribution of free trade to economic growth and development is widely acknowledged. The economic survival of workers and farmers lacking international competitiveness has been, however, endangered, because of the expansion of trade liberalization and investment based on economic integration. Economic integration that ensures human dignity will promote successful and sustainable regional economic integration, by balancing economic prosperity and social integration. In this context, this article reviews the value and concept of human dignity as a goal and principle for regional economic integration. The author contends that neither sustainable prosperity nor a high level of economic development is itself a goal of economic integration, but merely a means by which to improve human dignity. Economic integration should, therefore, serve not only to maintain sustainable prosperity, but also to maximize human dignity.

Keywords: Human Dignity, Sustainable Economic Integration, Free Trade Agreement, Human Rights Approach, Precautionary Principle

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.04

Bracing for the Hidden Fallout: Systemic Implications of the Sino-US Trade Disputes at a Time of Changing International Trade Paradigms

Jaemin Lee Seoul National University School of Law
Daehak-dong, Gwanak-gu,Seoul 151-742 Korea
Corresponding Author: jaemin@hanyang.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Global trading regimes are currently undergoing significant changes. It is most vividly shown in the recent spread of FTAs and the surge of protectionism. These fast changes pose new challenges to many countries in terms of formulating and implementing their respective trade policies. The increasing confrontation between the United States and China in trade sectors now operates as a multiplier and accelerator of this fast-changing global trade landscape. Recent disputes between the two have underscored fundamental differences in understandings of the legal framework of the WTO Agreements and the nature of the obligations as Members, thereby further raising questions about the reinvigoration of multilateralism. The two countries' retaliatory initiation of trade disputes against each other also involves third countries because of legal requirements and other considerations. The Sino-US trade disputes are thus not merely confrontation between the two largest trading partners; instead they carry wider systemic implications for both other countries and global trading regimes in transition.

Keywords: Sino-US Trade Dispute, Doha Development Agenda, FTA, Trade Paradigm, WTO DSU

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.03

Is Dumping Still Harmful? New Thinking on Antidumping in the Global Free Trade

Ying Bi Zhejiang University Guanghua Law School
51 Zhijiang Road, Hangzhou, Zhejiang, P.R.China.
Corresponding Author: biying@zju.edu.cn
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The debate on whether antidumping law should be integrated into competition law is a relatively new but very significant one. Building on prior scholarship, this paper attempts to contribute to the debate by reexamining the fundamental justification of antidumping law. An exploration into the economic theories of dumping and the evolution of antidumping law indicates that the current antidumping system neither serves the broad goal of preventing 'unfair trade' nor functions as a 'quasi-safeguard' mechanism. The only rationale for antidumping law is that it deals with international predatory dumping. Modern competition rules target the same predatory conduct but they are more meticulous than antidumping law and are less susceptible to protectionist abuse. In light of this, the paper advocates the substitution of antidumping law by competition law. To achieve this, the paper suggests a gradual approach. Substitution could first be achieved in bilateral and regional trade areas before being implemented at the level of WTO.

Keywords: WTO Dispute Settlement, Second-Order Compliance, Compliance, Panels, Retaliation, Countermeasures, ILC's Articles on State Responsibility

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.02

Implementation System of the WTO Dispute Settlement Body: A Comparative Approach

Yoshinori Abe Gakushuin University Faculty of Law
1-5-1 Mejiro, Toshima-ku, Tokyo 171-8588 Japan.
Corresponding Author: yoshinori.abe@gakushuin.ac.jp
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The implementation system of the recommendations and rulings of the Dispute Settlement Body is an important component of the WTO dispute settlement procedure. Where there is any disagreement between disputing parties as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings, a winning party may refer the matter to a compliance panel and the Appellate Body. If a losing party is found to have failed to comply with the recommendations and rulings, DSB may authorize the winning party to retaliate. This article analyzes the implementation system of the WTO dispute settlement procedure in comparison with other systems of 'second-order' compliance in international law. Also, attention will be directed to the relationship between the WTO retaliation and countermeasures in general international law. Countermeasures under the Agreement on Subsidies and Countervailing Measures, in particular, have a legal nature akin to that of countermeasures under the law of State responsibility.

Keywords: WTO Dispute Settlement, Second-Order Compliance, Compliance, Panels, Retaliation, Countermeasures, ILC's Articles on State Responsibility

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2013.6.1.01

The Future of Informalism in the Economic Integration of ASEAN

Robert Gallo Griffith University, Australia
Lvl 36, 123 Eagle Street Brisbane QLD 4000 Australia.
Corresponding Author: rgallo@piperalderman.com.au
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This paper examines the doctrine of informalism, its place in the field of jurisprudence and why it influences the international legal system of ASEAN. It analyses the problems associated with the development of ASEAN's international legal system in the context of trade liberalization. It then seeks to answer the question of how ASEAN may enhance trade liberalization through innovations in its legal system and what aspects of an informal legal system may be maintained within a hard-law framework. It does this by analyzing rule-observance in soft law as well as analyzing some examples of flexibility-enabling mechanisms. The paper recommends how instances of legal informalism may be maintained within ASEAN as it seeks to further trade liberalization between its members.

Keywords : Informalism, ASEAN, The ASEAN Way, Relationship-based Legal System, Rule-based Legal System, Credibility, Flexibility, Network Norms, Safeguard Provision, Sunset Provision

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.09

The Present and Future of the Sino-South Korean Fisheries Dispute: A Chinese Lawyer's Perspective

Zewei Yang Wuhan University, China
School of Law, Luo-jia-shan, Wuchang, Wuhan, Hubei Province, P.R.China, 430072
Corresponding Author: yangzewei@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The Sino-South Korea fisheries dispute is becoming increasingly intensified in recent years with occasional violent conflicts. The factors leading to this present situation include unsettled maritime delimitation, diminishing fishery resources, difficult relocation of Chinese fishermen, and the Korean coastguard's rigidity, indifference, and even illegality in law enforcement. In order to solve the Sino-South Korean fisheries dispute, China should make efforts to improve its supporting measures applicable to the fishery industry, promote bilateral cooperation with South Korea, and establish a joint maritime enforcement mechanism.

Keywords : Sino-South Korea Fishery Agreement, Fisheries Dispute, Yellow Sea, South Korean Coastguard, Fisheries Industry, UNCLOS

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.08

Illegal Chinese Fishing in the Yellow Sea: A Korean Officer's Perspective

Suk Kyoon Kim Coast Guard, Korea
130 Haedoji-ro, Yeonsu-gu, Incheon 406-741 Korea.
Corresponding Author: sukkyoon2004@hanmail.net
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The problem of illegal Chinese fishing and Chinese fishermen's violent resistance to Korean law enforcement in the Yellow Sea have been a long-standing point at issue between Korea and China. It is not merely a problem of illegal fishing in Korean waters; this conflict could disrupt the integrity of the Exclusive Economic Zone and even undermine the friendly relations between the two countries. This article is to analyze the current status of the illegal Chinese fishing in the Yellow Sea and to provide a perspective on legal questions concerning the Korea-China Fishery Agreement to govern the fishery issue. This article suggests challenges ahead to solve the illegal fishing problem by examining factors causing the problem. It also provides a political perspective on the illegal fishing problem, which has become a highly newsworthy issue between Korea and China.

Keywords : Illegal Chinese Fishery, Korea-China Fishery Agreement, Korea Coast Guard, Yellow Sea

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.07

Smiting Spell: The Legality of Targeted Killings in the War against Terrorism

Ahmed Buckley Ministry of Foreign Affairs, Egypt
18 Zahraa Street (Apartment 2), Nerco Buildings, El-Shatr El-Khamis, New Maadi, Cairo, Egypt
Corresponding Author: elbuckley@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Resorting to targeted killings as a measure of counterterrorism spawned a debate on their legality under both international human rights law and humanitarian law. This article attempts to justify the measure under the current body of international humanitarian law. It also claims that discrete acts of targeted killings may be legal provided the existence of specific circumstances and conditions. These conditions, however, make it extremely difficult for a State to legally pursue a 'policy' of targeted killings against alleged terrorists, unless they are considered 'legal combatants.' The article criticizes the practice of labelling terrorists as 'unlawful combatants' unworthy of protections afforded by both international human rights law and international humanitarian law, and argues the lack of compelling legal arguments that would prevent terrorists from being considered as lawful combatants in an armed conflict. Light is also shed on the United States' recent expansion of the drone program in a way that might indicate a gradual acceptance of the terrorist-as-combatant theory.

Keywords : Targeted Killings, Drone Strike, Al-Qaeda, War against Terrorism, Unlawful Combatant, Third Geneva Convention

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.06

TRIPs Agreement and Enforcement of the Intellectual Property Rights in China

Zhongfa Ma Fudan University, China
Law School, Fudan University, 2005 Songhu Road, Shanghai, P.R. China, 200438.
Yan Zhang
Zhejiang University, China
866 Yuhangtang Road, Hangzhou, Zhejiang Province, 310058 P. R. China.
Corresponding Author: zfma@fudan.edu.cn
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
It is generally accepted that China's legislation including the provisions on enforcement of intellectual property rights has met the requirements of the TRIPS agreement and its government has exerted best efforts to enforce intellectual property laws, as illustrated by the institution of executive bodies, the dual-track approach system for protecting IPRs and other actions in this field. However, enforcement of IPRs is still a critical problem for China to solve because the protection standards of IPRs are beyond its economic development and education level, local protectionism interferes with enforcement, insufficient severity of punishment against infringers fails to deter, the price of genuine IP products is overinflated and a legal culture of not observing laws in China. To eliminate the roots of difficulties in enforcing IP laws, awareness of protecting IPRs and abiding by IP laws should be improved. Also, the IPR enforcement system should be further perfected by, centralizing the power of IPR enforcement by merging the current executive bodies into fewer ones with certain focuses, increasing the severity of punishment against infringers of IPRs and cracking down against local protectionism.

Keywords : Enforcement of Intellectual Property Rights, Intellectual Property Laws, TRIPS Agreement, Dual-Track Approach System, Special Campaign against IPR infringement

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.05

The NGOs' Participation in the Proceedings of the International Court of Justice

Saratoon Santivasa Chulalongkorn University, Thailand
Faculty of Law Chulalongkorn University, Phayathai Road, Pathumwan, Bangkok 10330, Thailand.
Corresponding Author: saratoon.s@chula.ac.th
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Many international judicial bodies have prescribed the procedures allowing NGOs to participate in the proceedings generally as non-parties as amicus curiae, expert or witness for the purpose of the good administration of justice. These possibilities are well developed in judicial bodies where the nature of proceedings concerns the issues that international law recognizes as the collective interests of the international community. In the International Court of Justice, on the contrary, NGOs do not have such possibility to make contributions as they have done in other international judicial bodies. The development of the elaboration of the texts on the Court proceedings and the restrictive interpretation of these texts reflect the restrictive approach of the Court towards NGOs' participation. The Court should offer the scope to access NGOs since they have legitimate right to represent the views of international civil society in an international democratic process and can contribute to assist the Court to protect the collective interest of the international community.

Keywords : Non-Governmental Organizations ("NGOs"), International Judicial Proceedings, International Court of Justice ("ICJ"), Amicus Curiae, Administration of Justice.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.04

Harmonizing Ideological Tension in the Development of the ASEAN Law

Ida Bagus Wyasa Putra Udayana University, Indonesia
Faculty of Law, Udayana University, Jalan Bali No. 1, Denpasar, Bali, Indonesia.
Corresponding Author: wyasp@yahoo.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
There have been at least twenty Summits among the ASEAN countries. They adopted about twenty basic legal documents. All these are dedicated to realizing the ambitious dream of the ASEAN countries to be developed. However, the facts went opposite. ASEAN cooperation stays slow and reaches a very narrow target. Most ASEAN people feel bored and hopeless over the state of cooperation. The slow and narrow cooperation have disposed the cooperation into a downfall image such as a fiction, or even a utopian. The downfall image could make cooperation even slower or end it altogether, as it commonly drives the belief of the people from trust to distrust and believing into disbelieving. The gap between the 'sollen' and the 'sein' in the cooperation shows a strong influence of undetectable causes. This article applies a law and ideological approach in searching and analyzing the cause of slowness of performance of the cooperation.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.03

Investment Law in the China-ASEAN Free Trade Agreement

Huan Qi China University of Political Science and Law, China
No.25 Xi Tu Cheng Road, Haidian District, Beijing 100088, P.R. China
Corresponding Author: qihuanhuan66@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Cooperation between China and the ASEAN has become more integrated as their common economic interests have been increasing due to globalization and recent changes in Southeast Asia. The formation and operation of the CAFTA provide incentive for investment and trade between China and the ASEAN. The objective of laws regulating to investment should promote investment, which can be realized through a liberal, facilitative and transparent investment regime. The CAFTA's investment regime continues along with the same trends of international investment agreements in general. However, in order to encourage regional integration, it needs to be improved in future practice.

Keywords : China-ASEAN Free Trade Area, CAFTA, Investment Agreement, BITs, WTO, Dispute Settlement

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.02

Rule of Law as a Framework within the ASEAN Community

Joel Ng Nanyang Technological University, Singapore
S. Rajaratnam School of International Studies, Block S4, Level B4, Nanyang Avenue, Singapore 639798.
Corresponding Author: kj.joel.ng@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
As the ASEAN moves towards its vision of a 'Community,' enforceability and consistency of legal standards, broadly the "rule of law," have drawn attention due to their impact on the predictability of social environments, with consequences for markets, people, and policy makers. This paper draws together recent findings and suggests ASEAN States have made significant progress but remain in a state of transition. These findings support Barry Weingast's prediction that developing countries are more likely to create consistent rules and move to "open access orders" in line with requirements for development, rather than install artificial enforcement mechanisms before growth.

Keywords : Rule of Law, ASEAN, Predictability, Human Rights, World Justice Project, ASEAN Community Vision.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.2.01

Sustainable Development of Water Resources in the Mekong River Basin: Legal and Policy Implications of Dams in the Regional Context

Sophie Landberg University of Tokyo, Japan.
Annex Myogadani, No 1003, Otsuka 3-20-5, Bunkyo-ku 112-0012 Japan.
Corresponding Author: landberg@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The article addresses the subject of dams and dam construction in the Mekong River Basin. The focus lies on whether, under the existing legal framework and in light of the Mekong dam projects, it is possible to achieve sustainable development of water resources on a regional level. As a number of these dam projects are accompanied with concern and debate regarding the environment and socio-economic impacts, the article discusses the effects noted so far and future expectations of dam usage on the Mekong mainstream and tributaries. The article will further look into the procedural elements needed for achieving sustainable development in the Mekong River Basin. The basis for this analysis is found in the relevant international and regional framework, such as the UN Watercourses Convention and the Mekong Agreement, and in regional cooperation that focuses on sustainability issues in the basin.

Keywords: Sustainable Development, Mekong River Basin, Transboundary River, Shared Resources, Hydropower Development, Mekong River Commission

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.09

The Territorial Dispute between China and Vietnam in the South China Sea: A Chinese Lawyer's Perspective

Junwu Pan Northwest University of Politics and Law, China.
Mail Box 101, Northwest University of Politics and Law, No.300 South Chang'an Road, Xi'an, 710063 P. R. China.
Corresponding Author: junwupan@yahoo.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Although China and Vietnam are involved in both territorial and boundary disputes in the South China Sea, at present, managing the territorial dispute over the Spratly Islands is more significant than anything else. Analysis of the dispute based on international law, particularly on the ICJ case law, may help the two sides to manage their dispute in a new perspective and generate political willingness to negotiate the joint development area instead of the sovereignty over the islands. China's policy that the joint development area around the disputed islands is negotiable is quite a positive signal for peace in the South China Sea and provides a practical basis for new negotiations between China and Vietnam.

Keywords: South China Sea, Spratly Islands, Territorial Dispute, Joint Development, ICJ

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.08

Vietnam's Position on the Sovereignty over the Paracels & the Spratlys: Its Maritime Claims

Hong Thao Nguyen Vietnam National University, Vietnam
144 Xuan Thuy Str., Hanoi, Vietnam.
Corresponding Author: nguyenhongthao57@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The South China Sea has long been regarded as a major source of tension and instability in Pacific Asia. To clarify the position of claimants is a research task for creating the confidence building measures and promoting efforts to manage the possible conflicts in the region. The purpose of this article is to address the Vietnamese position on the sovereignty disputes over the Paracels and Spratlys, and maritime zones in the South China Sea. The Vietnamese position will be examined from three aspects: (1) the sovereignty of the Paracels and the Spratlys; (2) the maritime zones around these islands; and (3) the settlement of disputes in the South China Sea.

Keywords: Dispute Management, Maritime Zones, Paracels, Sovereignty, South China Sea, Spratlys

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.07

A Clash between IT Giants and the Changing Face of International Law: The Samsung vs. Apple Litigation and Its Jurisdictional Implications

Jaemin Lee Hanyang University, Korea
School of Law, Hanyang University, 17 Haengdang-dong, Sungdong-gu, Seoul, Korea, 133-791.
Corresponding Author: jaeminwfg@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
There has been a sudden surge in simultaneous legal disputes between Samsung and Apple in domestic courts of multiple States since 2011 concerning patent infringements involving their new digital products. The intensity of these confrontations between the two digital giants has come to exert significant influence over the lives of many people all over the world. In a sense, they are not competing to protect or increase the market share in a given domestic market, as other large corporations usually do; rather, they are now competing in a single, integrated global digital market where borders and boundaries have virtually disappeared. The emergence of the dominant digital entities is a showcase example of the increasing role of the MNCs in the international community, an issue that has already attracted a significant amount of attention from scholars of international law. At the same time, the unprecedented clash between the two corporations in multiple jurisdictions also raises an important issue of how conventional jurisdictional principles under international law are and will be implicated in this regard.

Keywords: Prescriptive Jurisdiction, Enforcement Jurisdiction, Municipal Courts, Multinational Corporations, Patent Infringement, IPRs, CSR

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.05

Reshaping Private International Law in China: The Statutory Reform of Tort Conflicts

Zhengxin Huo China University of Political Science and Law, China
No. 25 Xitucheng Road, Haidian District, Beijing, 100088, P.R. China
Corresponding Author: huozhengxin@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
This article reviews the statutory reform of Chinese private international law from the perspective of tort conflicts which concludes that notwithstanding the significant improvement, the new Private International Law Act of China are fraught with various defects. In the field of tort, Article 44 are problematic in three aspects: first, the key term 'habitual residence' lacks an objective definition; second, the rationality of an automatic preference to the law of the common habitual residence over the lex loci delicti is open to doubt; third, there is little, if any, practicability to introduce the notion that the parties may choose the applicable law after the tort has happened. Moreover, there are a number of defects or problems with Article 45, Article 46 and Article 50 of the Act, respectively. What's more, the Act neglects some other important types of torts which call for special treatment, say, unfair competition, and environmental pollution, nuclear damage and traffic accidents. In the end, the article puts forward the corresponding suggestions for improvement.

Keywords: China's New Private International Law Act, Tort Conflicts, Lex Loci Delicti, Double actionability, Common Habitual Residence, Party Autonomy, Particular Torts

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.04

Piracy in a Failed State: How State-Building Can Stabilize the Situation off the Somali Coast?

Akiko Sugiki Kobe Gakuin University, Japan.
Faculty of Law, Kobe Gakuin University, 1-1-3 Minatojima, Chuo-ku, Kobe 650-0036 JAPAN.
Corresponding Author: asugiki@law.kobegakuin.ac.jp
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The main purpose of this paper is to examine an alternative approach to state-building in Somalia to resolve issues regarding maritime piracy off the Somali coast. The sharp increase in piracy in Somalia is often regarded as a consequence of the collapse of the State after 1991. Solutions for curtailing piracy therefore depend upon the reconstruction of the State in Somalia. However, as has been the case in many post-conflict countries, Somalia has experienced a number of unsuccessful attempts at state-building because the current state-building model based on the western conception of statehood does not account for the realities of Somali society. Reviving a unified Somalia is thus counter-productive to securing peace, order and stability. By closely examining state-building approaches, this paper shows that the 'mediated state' approach is the most appropriate model not only for resolving issues regarding state-building, but also for tackling the root causes of piracy in Somalia.

Keywords: Somalia, Piracy, State-Building, Failed State, Negotiating Statehood, Mediated State

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.03

Military Rescue Operation for the Hostages Taken by Somali Pirates: Was the Korean Navy's "Daybreak in the Gulf of Aden" Legitimate?

Eric Yong Joong Lee Dongguk University, Korea
College of Law, Dongguk Univ., Pil-dong 3-ga, Jung-gu, Seoul, Korea
Corresponding Author: grotian@hotmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
On January 21, 2011, the Korean navy commandos rescued the twenty-one crewmen abducted and detained by Somali pirates in the Indian Ocean. The pirates captured alive were brought to Korea for trial and the prosecutor's office of Pusan sentenced the leader of the Somali pirate group to life-imprisonment. The other four pirates received imprisonment terms from 12 to 15 years. Regardless of these domestic legal punishments, this rescue operation has raised a few critical international legal questions. The primary objective of this paper is to answer these questions. This research analyzes the international legal characteristics of the Korean Navy's rescue operation. Then, a few case-studies of military rescue operation are carried out in order to justify the Korean Navy's rescue operation. The Korean Navy's rescue operation may be regarded as an act of forcible self-help and realization of existing international legal right.

Keywords: Somali Pirates, Daybreak in the Gulf of Aden, Forcible Protection of Nationals Abroad, UNCLOS, Self-Defense, Self-Help, Entebbe Raid.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.02

Finding out the 'Achilles' Heels': Piracy Suppression under International Law and Chinese Law

Manjiao Chi Xiamen University, China
422 Siming South Road, Xiamen, 361005 China.
Corresponding Author: chimanjiao@xmu.edu.cn
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Piracy poses a great danger to international security and peace. It is necessary for the international community and individual States to take actions to suppress piracy. Despite international cooperation and existing international antipiracy laws, the international community lacks an effective legal regime to suppress piracy. China has fundamental interests in fighting against piracy and has actively cooperated in accordance with the relevant UNSC resolutions. However, China's domestic antipiracy laws are defective in their substantive and procedural aspects. Further efforts should be made at both the national and international levels in order to effectively suppress global piracy.

Keywords: Piracy Suppression, UNCLOS, International Antipiracy Law, Chinese Criminal Law

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2012.5.1.01

Rome Statute and India: An Analysis of India's Attitude towards the International Criminal Court

Rishav Banerjee Gujarat National Law University, India.
Student's Hostel, GNLU, Gandhinagar Sector-24, Gujarat, INDIA.
Corresponding Author: rishavban@gmail.com
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The International Criminal Court is the first permanent world judicial institution with nearly universal jurisdiction to try individuals accused of war crimes, crimes against humanity, genocide and possible aggression. Curiously, India voted against the Court's founding instrument, the Rome Statute. The Indian Government has chosen to adopt a 'non-position' on the most important step taken towards establishing genuine accountability for unthinkable atrocities, which reflects a deep seated confusion of thought rather than a principled stance. Even worse, the stated position of the Government has been to find common ground between Indian and American 'apprehensions' of "possible conflict between robust, national judicial processes and international tribunals as also the impact of such tribunals on national sovereignty." Against this background, this paper presents a critical review of the Indian position on the ICC, considering familiar accusations and criticisms directed against it. It also explores policy options available to the government in tackling core international crimes and finally underlines the need for reforms in the national criminal justice system. It is the thesis of this paper that India has seriously misjudged the legal, political and social repercussions of opposing the Rome Statute, and risks a further erosion of credibility if it altogether repudiates the Statute, and with it, its sizable practical advantages for protecting the dual interests of its nationals as individuals serving their country abroad, and of its national security. These points are not based on sentimental devotion to a vague and ill-defined internationalism, but on a pragmatic analysis of the interplay between the ICC and customary international law.

Keywords : ICC, Jurisdiction, State Sovereignty, Security Council, International Crimes.

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2011.4.2.10

The Whaling Dispute in the South Pacific: A Japanese Perspective

Ad hoc Editorial Chamber (Hyun-soo Kim, Eric Yong Joong Lee & John Riley) YIJUN Institute of International Law, Korea
562 Gwangnaruro, Kwangjin-gu #201, Seoul 143-821, KOREA.
Corresponding Author: journal@yiil.org
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
Australia instituted proceedings against Japan before the International Court of Justice alleging that the JARPA II is violating the obligation of ICRW which prohibits the commercial whaling. Japan is strongly protesting against Australia arguing that the JARPA II has been carried out only for research whaling. This paper contains the Japan's position over the whaling in the South Pacific. The Japan's arguments are divided into two sections in this paper. First, it will check if whales are truly vulnerable following the Comprehensive Assessment of the IWC. Second, it argues the legitimacy of the JARPA II under international law.

Keywords : JARPA II, Minke Whale, ICRW, IWC, Schedule, ICJ

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2011.4.2.09

The Whaling Dispute in the South Pacific: An Australian Perspective

Ruth Davis University of Wollongong, Australia
Faculty of Law, University of Wollongong, Wollongong, NSW 2522, Australia.
Corresponding Author: rdavis@uow.edu.au
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
In May 2010 Australia commenced litigation against Japan in the International Court of Justice over the legality of Japanese scientific whaling in the Southern Ocean. This article considers the background to the litigation, the basis of Australia's opposition to whaling, and the grounds upon which Australia is mounting its challenge. The interpretation of the 1946 International Convention for the Regulation of Whaling and the operation of the International Whaling Commission are considered in light of the precautionary principle. The article concludes that Australia's success depends upon a broad reading of the Convention that takes into account its objects and purposes, as well as wider developments in international law. Any guidance that the International Court of Justice can provide on the modern interpretation of this now dated Convention is to be welcomed.

Keywords : International Convention for the Regulation of Whaling, Scientific Whaling, Japanese Whaling, Southern Ocean, International Whaling Commission, Whaling Litigation \

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2011.4.2.08

The Feasibility of Reforming the UN Security Council: Too Much Talk, Too Little Action?

Seryon Lee Chonbuk National University, Korea.
567 Baekje-daero, deokjin-gu, Jeonju-si, Jeollabuk-do, 561-756 Korea.
Corresponding Author: seryon@jbnu.ac.kr
ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
While a broad consensus exists over the necessity of reforming the Security Council, the disagreement among the different groups of member states prevails in great part due to the enlargement and category of membership and the working methods. Such divergence in views attributed to the stalemate in the debate over the Security Council's reform. However, the recent discussion has gained momentum since the launch of the intergovernmental negotiation at the UN level. The key issues surrounding the UN Security Reform include the size of an enlarged Council, categories of membership with proper regional representation, the veto, working methods and relations with the General Assembly. It is essential not only to properly assess the content of the different proposals to bring out the most 'sensible' solution, but the attitude of the five permanent members should also be closely examined. In any case, the potential changes in the structure of the Security Council would ultimately require a unanimous decision of the 5P states. This article aims to review the historical development of the Security Council's reform debate and concentrate on the most contentious questions by analyzing the content of the relevant proposals to test the feasibility of each option.

Keywords : UN Security Council Reform, G4 Proposal, UFC Proposal, Ezulwini Consensus

The Full Text is available at: http://dx.doi.org/10.14330/jeail.2011.4.2.07