Pub Date : 2020-12-15DOI: 10.1163/22134484-12340140
Seokwoo Lee
{"title":"Japanese Forced Labor re Mitsubishi Heavy Industries (2015 Da 45420 Compensation for Damages [Others], Supreme Court [2nd Division], Judgment)","authors":"Seokwoo Lee","doi":"10.1163/22134484-12340140","DOIUrl":"https://doi.org/10.1163/22134484-12340140","url":null,"abstract":"","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131101393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.1163/22134484-12340136
J. Espenilla
Straddling and highly migratory fish such as tuna are the subject of immense interest from countries like the Philippines, whose populations are highly dependent on the oceans for both sustenance and livelihood. As these fish are transboundary by nature, they are deemed as “shared resources” that need to be cooperatively managed by country stakeholders in order to safeguard against depletion. This is the primary reason for the increasing number of international fisheries agreements as well as in the sudden prominence of regional fisheries management organizations (RFMO s). In that context, this article presents and analyzes the domestic drivers as well as the various international legal considerations that helped shape the current Philippine framework for the governance of shared fish, and reflects on how the twin goals of consumption/exploitation and conservation figure in the country’s fisheries policy.
{"title":"Sharing Fish: The Philippine Experience","authors":"J. Espenilla","doi":"10.1163/22134484-12340136","DOIUrl":"https://doi.org/10.1163/22134484-12340136","url":null,"abstract":"\u0000Straddling and highly migratory fish such as tuna are the subject of immense interest from countries like the Philippines, whose populations are highly dependent on the oceans for both sustenance and livelihood. As these fish are transboundary by nature, they are deemed as “shared resources” that need to be cooperatively managed by country stakeholders in order to safeguard against depletion. This is the primary reason for the increasing number of international fisheries agreements as well as in the sudden prominence of regional fisheries management organizations (RFMO s). In that context, this article presents and analyzes the domestic drivers as well as the various international legal considerations that helped shape the current Philippine framework for the governance of shared fish, and reflects on how the twin goals of consumption/exploitation and conservation figure in the country’s fisheries policy.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116650069","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.1163/22134484-12340137
Anastasia Telesetsky
This article describes the United States approach to shared fisheries management highlighting efforts to manage tuna, halibut, salmon and other transboundary species. The article concludes with a recommendation for factoring climate change into U.S. standards for fisheries management.
{"title":"United States Law and Policy for Sharing Transboundary, Highly Migratory, and Straddling Stock Fishery Resources","authors":"Anastasia Telesetsky","doi":"10.1163/22134484-12340137","DOIUrl":"https://doi.org/10.1163/22134484-12340137","url":null,"abstract":"\u0000This article describes the United States approach to shared fisheries management highlighting efforts to manage tuna, halibut, salmon and other transboundary species. The article concludes with a recommendation for factoring climate change into U.S. standards for fisheries management.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122568076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.1163/22134484-12340135
D. Ong
Malaysia’s unique geographical position, straddling across several seas within the Indian and Pacific Oceans, allows her to play an important role within the set of regional, sub-regional and bilateral arrangements for transboundary fisheries management in the Indo-Pacific theatre. This article first charts and then examines Malaysia’s participation within these fisheries management initiatives, beginning from the overarching international legal frameworks of unclos and the Fish Stocks Agreement, through the formal and informal regional and sub-regional fisheries management organizations, and finally, to bilateral arrangements for fisheries co-operation. Along the way, Malaysia’s policy, legal and institutional capacity, as well as her readiness to perform the role(s) required of her, in relation to regional, sub-regional, and bilateral fisheries management issues, are critically assessed.
{"title":"Transboundary Fisheries Management","authors":"D. Ong","doi":"10.1163/22134484-12340135","DOIUrl":"https://doi.org/10.1163/22134484-12340135","url":null,"abstract":"\u0000Malaysia’s unique geographical position, straddling across several seas within the Indian and Pacific Oceans, allows her to play an important role within the set of regional, sub-regional and bilateral arrangements for transboundary fisheries management in the Indo-Pacific theatre. This article first charts and then examines Malaysia’s participation within these fisheries management initiatives, beginning from the overarching international legal frameworks of unclos and the Fish Stocks Agreement, through the formal and informal regional and sub-regional fisheries management organizations, and finally, to bilateral arrangements for fisheries co-operation. Along the way, Malaysia’s policy, legal and institutional capacity, as well as her readiness to perform the role(s) required of her, in relation to regional, sub-regional, and bilateral fisheries management issues, are critically assessed.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129574986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-15DOI: 10.1163/22134484-12340139
Seryon Lee, Seokwoo Lee
{"title":"The Constitutional Complaint Concerning the Announcement of the Agreement on the Comfort Women Issues","authors":"Seryon Lee, Seokwoo Lee","doi":"10.1163/22134484-12340139","DOIUrl":"https://doi.org/10.1163/22134484-12340139","url":null,"abstract":"","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126803978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/22134484-12340124
Anastasia Telesetsky
This article provides a review of the major “historic rights” cases in United States federal jurisprudence involving disputes between the United States and its constituent states. On the basis of these cases, the article describes the three step-approach taken by the judiciary in deciding whether there are cognizable “historic right” claims.
{"title":"Maritime Historic Rights in United States Jurisprudence","authors":"Anastasia Telesetsky","doi":"10.1163/22134484-12340124","DOIUrl":"https://doi.org/10.1163/22134484-12340124","url":null,"abstract":"\u0000This article provides a review of the major “historic rights” cases in United States federal jurisprudence involving disputes between the United States and its constituent states. On the basis of these cases, the article describes the three step-approach taken by the judiciary in deciding whether there are cognizable “historic right” claims.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126331079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/22134484-12340123
Edwin Egede
Historic rights in the law of the sea has been given prominence since the publication by China of the so-called nine-dash line map. Certain States have challenged this claim as inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS) to which China is a State Party. On the other hand, it has been argued that although historic rights claims are not comprehensively regulated by the UNCLOS they are actually governed by the principles of general international law. Consequently, this would require establishing if there is a general and consistent practice of States followed by them from a sense of legal obligation which establish historic rights claims are consistent with Customary International Law. This article explores the State Practice of African States in order to determine whether these States acknowledge and recognize historic rights claims as consistent with contemporary law of the sea.
{"title":"Historic Rights in African State Practice","authors":"Edwin Egede","doi":"10.1163/22134484-12340123","DOIUrl":"https://doi.org/10.1163/22134484-12340123","url":null,"abstract":"\u0000Historic rights in the law of the sea has been given prominence since the publication by China of the so-called nine-dash line map. Certain States have challenged this claim as inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS) to which China is a State Party. On the other hand, it has been argued that although historic rights claims are not comprehensively regulated by the UNCLOS they are actually governed by the principles of general international law. Consequently, this would require establishing if there is a general and consistent practice of States followed by them from a sense of legal obligation which establish historic rights claims are consistent with Customary International Law. This article explores the State Practice of African States in order to determine whether these States acknowledge and recognize historic rights claims as consistent with contemporary law of the sea.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127461792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/22134484-12340125
Q. Ye
China has, without challenge, enjoyed and exercised certain rights in the South China Sea throughout recorded history. Those rights do not derive from the 1982 United Nations Convention on the Law of the Sea; rather, they exist under customary international law and commonly known as ‘historic rights’. Recent interpretations related to those rights, however, remain highly controversial, which can be typically seen from the South China Sea Arbitration Case initiated by the Philippines against China. This article gives a case-by-case study based on China’s diplomatic positions on historic rights and compares them with certain international practice from an academic perspective; and then it examines the possible content and nature of historic-related rights enjoyed by China in the South China Sea and evaluates its legal implications on the dispute settlement approach in this region.
{"title":"Historic Rights in the South China Sea","authors":"Q. Ye","doi":"10.1163/22134484-12340125","DOIUrl":"https://doi.org/10.1163/22134484-12340125","url":null,"abstract":"\u0000China has, without challenge, enjoyed and exercised certain rights in the South China Sea throughout recorded history. Those rights do not derive from the 1982 United Nations Convention on the Law of the Sea; rather, they exist under customary international law and commonly known as ‘historic rights’. Recent interpretations related to those rights, however, remain highly controversial, which can be typically seen from the South China Sea Arbitration Case initiated by the Philippines against China. This article gives a case-by-case study based on China’s diplomatic positions on historic rights and compares them with certain international practice from an academic perspective; and then it examines the possible content and nature of historic-related rights enjoyed by China in the South China Sea and evaluates its legal implications on the dispute settlement approach in this region.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115670110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/22134484-12340120
A. Carty
The Western international law of territory starts from a standpoint of the priority of the State over its population. The latter is merely an object of the ownership of the State. Title to territory rests on dominant evidence of State activity. The activity of so-called private individuals or economic activity of peoples do not count towards title to territory in the case law of international tribunals. This article contests the foundations of such a perspective. The so-called Western law of territory was devised by Western States to divide up among themselves the territory of non-Western ‘non-peoples’, culminating in the racist Island of Palmas Arbitration. Carl Schmitt provides the makings of an alternative history of the law of territory. It is, and should be, the law of the homelands of peoples, historically located on particular spaces. Peoples precede States, which are merely institutions used by Peoples to protect and administer their homelands. Whatever the difficulties of locating the homelands to which Peoples belong, escape into the so-called Western law of territory as a way to ‘Peace through the Rule of Law’ is an illusion – described contemptuously by the political theorist Raymond Aron as a Law of empty spaces. Without justice, there is no law.
{"title":"Carl Schmitt, Nomos of the Earth, and the Question of Historic Title in International Law","authors":"A. Carty","doi":"10.1163/22134484-12340120","DOIUrl":"https://doi.org/10.1163/22134484-12340120","url":null,"abstract":"\u0000The Western international law of territory starts from a standpoint of the priority of the State over its population. The latter is merely an object of the ownership of the State. Title to territory rests on dominant evidence of State activity. The activity of so-called private individuals or economic activity of peoples do not count towards title to territory in the case law of international tribunals. This article contests the foundations of such a perspective. The so-called Western law of territory was devised by Western States to divide up among themselves the territory of non-Western ‘non-peoples’, culminating in the racist Island of Palmas Arbitration. Carl Schmitt provides the makings of an alternative history of the law of territory. It is, and should be, the law of the homelands of peoples, historically located on particular spaces. Peoples precede States, which are merely institutions used by Peoples to protect and administer their homelands. Whatever the difficulties of locating the homelands to which Peoples belong, escape into the so-called Western law of territory as a way to ‘Peace through the Rule of Law’ is an illusion – described contemptuously by the political theorist Raymond Aron as a Law of empty spaces. Without justice, there is no law.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127044880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-04DOI: 10.1163/22134484-12340127
Renyuan Li
In the Award of the South China Sea Arbitration, the Tribunal concluded that the Convention had superseded any historic rights in excess of the limits imposed by the Convention. Consequently, China’s claim of historic rights in the relevant part encompassed by the nine-dashed lines in the South China Sea exceeded the limits of China’s maritime entitlements under the Convention. But an analysis on the context and negotiation history of paragraph 8 of the preamble and issues related to historic rights in the Convention leads to an opposite conclusion. For the issues related to historic rights, the negotiation history of the Convention indicated that the Convention does not supersede any historic rights but left lacunae on related issues. According to the text and negotiation history of paragraph 8 of the Convention, historic rights were not superseded but were regulated by general international law.
{"title":"Legality of China’s Entitlements of Historic Rights beyond the UNCLOS in the South China Sea","authors":"Renyuan Li","doi":"10.1163/22134484-12340127","DOIUrl":"https://doi.org/10.1163/22134484-12340127","url":null,"abstract":"\u0000In the Award of the South China Sea Arbitration, the Tribunal concluded that the Convention had superseded any historic rights in excess of the limits imposed by the Convention. Consequently, China’s claim of historic rights in the relevant part encompassed by the nine-dashed lines in the South China Sea exceeded the limits of China’s maritime entitlements under the Convention. But an analysis on the context and negotiation history of paragraph 8 of the preamble and issues related to historic rights in the Convention leads to an opposite conclusion. For the issues related to historic rights, the negotiation history of the Convention indicated that the Convention does not supersede any historic rights but left lacunae on related issues. According to the text and negotiation history of paragraph 8 of the Convention, historic rights were not superseded but were regulated by general international law.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129081318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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