Pub Date : 2019-10-04DOI: 10.1163/22134484-12340122
Ying Wang
Historic rights have been acknowledged by international legislation including the United Nations Convention on the Law of the Sea, although many issues concerning the concept still remain uncertain. This article will mainly discuss the legal connotation and juridical functions of the concept of ‘historic rights’ for maritime entitlements and maritime boundary delimitation, and attempt to clarify some legal ambiguity and explain the function of the legal regime through analysis of legal documents and identification of typical difficulties in the application of the concept of ‘historic rights’.
{"title":"Rethinking the Concept of Historic Rights in International Law","authors":"Ying Wang","doi":"10.1163/22134484-12340122","DOIUrl":"https://doi.org/10.1163/22134484-12340122","url":null,"abstract":"\u0000Historic rights have been acknowledged by international legislation including the United Nations Convention on the Law of the Sea, although many issues concerning the concept still remain uncertain. This article will mainly discuss the legal connotation and juridical functions of the concept of ‘historic rights’ for maritime entitlements and maritime boundary delimitation, and attempt to clarify some legal ambiguity and explain the function of the legal regime through analysis of legal documents and identification of typical difficulties in the application of the concept of ‘historic rights’.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"82 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":"124892261","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: 10.1163/22134484-12340126
Sourabh Gupta
The South China Sea Arbitration is only the fourth case since the entry into force of the UN Convention on the Law of the Sea to touch on the issue of historic rights – in this case, traditional fishing rights. Traditional or artisanal fishing rights are acquired rights. This article reviews the basis and characteristics of a historic rights claim and compares it with the origin and properties of an entitlement-based fishing rights claim, which the Third UN Conference on the Law of the Sea mainstreamed into the body of international maritime law. And in light of this comparison, the article evaluates the Tribunal’s Award on the geographic scope of application of historic or traditional fishing rights in the exclusive maritime zones of a coastal State.
{"title":"Historic Fishing Rights in Foreign Exclusive Maritime Zones","authors":"Sourabh Gupta","doi":"10.1163/22134484-12340126","DOIUrl":"https://doi.org/10.1163/22134484-12340126","url":null,"abstract":"\u0000The South China Sea Arbitration is only the fourth case since the entry into force of the UN Convention on the Law of the Sea to touch on the issue of historic rights – in this case, traditional fishing rights. Traditional or artisanal fishing rights are acquired rights. This article reviews the basis and characteristics of a historic rights claim and compares it with the origin and properties of an entitlement-based fishing rights claim, which the Third UN Conference on the Law of the Sea mainstreamed into the body of international maritime law. And in light of this comparison, the article evaluates the Tribunal’s Award on the geographic scope of application of historic or traditional fishing rights in the exclusive maritime zones of a coastal State.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"35 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":"116503078","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: 10.1163/22134484-12340128
Chenhong Liu
In the customary international law system, there exist general customary international law and regional customary international law. Based on the general practice and opinio juris of the States surrounding the South China Sea, China’s historic rights which conclude historic title to all the maritime features in the South China Sea, and historic fishing rights and navigational rights, are regulated by regional customary international law. Due to the parallel relationship between this regional customary international law and the United Nations Convention on the Law of the Sea (UNCLOS), China’s historic rights should co-exist with the rights regulated by UNCLOS.
{"title":"Regional Customary International Law Related to China’s Historic Rights in the South China Sea","authors":"Chenhong Liu","doi":"10.1163/22134484-12340128","DOIUrl":"https://doi.org/10.1163/22134484-12340128","url":null,"abstract":"\u0000In the customary international law system, there exist general customary international law and regional customary international law. Based on the general practice and opinio juris of the States surrounding the South China Sea, China’s historic rights which conclude historic title to all the maritime features in the South China Sea, and historic fishing rights and navigational rights, are regulated by regional customary international law. Due to the parallel relationship between this regional customary international law and the United Nations Convention on the Law of the Sea (UNCLOS), China’s historic rights should co-exist with the rights regulated by UNCLOS.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"111 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":"124097562","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: 10.1163/22134484-12340121
C. Whomersley
The concept of “historic rights” has been much discussed recently in the light of the arbitral award in the Philippines v. China case. The United Kingdom, as a major maritime power, has had long experience of dealing with claims about such rights and those which are similarly worded. This includes the seminal case of the Anglo-Norwegian Fisheries case in the International Court of Justice, as well as two other international decisions and a judgment of what is now the Court of Justice of the European Union (EU). In addition, the London Fisheries Convention and the European Union’s Common Fisheries Policy seem to employ terminology to similar effect. Finally, it is interesting to speculate about whether claims to historic rights will be made by other EU Member States after BREXIT.
{"title":"The International Law of the Sea","authors":"C. Whomersley","doi":"10.1163/22134484-12340121","DOIUrl":"https://doi.org/10.1163/22134484-12340121","url":null,"abstract":"\u0000The concept of “historic rights” has been much discussed recently in the light of the arbitral award in the Philippines v. China case. The United Kingdom, as a major maritime power, has had long experience of dealing with claims about such rights and those which are similarly worded. This includes the seminal case of the Anglo-Norwegian Fisheries case in the International Court of Justice, as well as two other international decisions and a judgment of what is now the Court of Justice of the European Union (EU). In addition, the London Fisheries Convention and the European Union’s Common Fisheries Policy seem to employ terminology to similar effect. Finally, it is interesting to speculate about whether claims to historic rights will be made by other EU Member States after BREXIT.","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":"130724535","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 : 2019-05-09DOI: 10.1163/22134484-12340117
Jiyoung Lee, Jaehyun Lee
In this article, we show that the Dokdo/Takeshima islands issue has become a cultural phenomenon in South Korea, in which the popular desire for national pride has increasingly been intertwined with the government’s efforts for promoting its policy position vis-à-vis Japan. We argue that narratives on Dokdo – created in and through activities in the realms of education, media, and civil society activism – are designed to enhance South Korean territorial sovereignty over the islands. In the process, however, Dokdo has become a symbol of Korean identity or “Koreanness,” as the public, teachers, students, and activists have all engaged in meaning-making activities surrounding the islands. This phenomenon has become salient, in part because these actors sought to respond to Japan’s own activities, including the designation of “Takeshima Day” in 2005. As part of a grassroots movement, their strategy of creating everyday symbols over the islands not just expressed, but also reproduced Korean national identity.
{"title":"Everyday Politics of “Dokdo” and South Korean National Identity","authors":"Jiyoung Lee, Jaehyun Lee","doi":"10.1163/22134484-12340117","DOIUrl":"https://doi.org/10.1163/22134484-12340117","url":null,"abstract":"\u0000In this article, we show that the Dokdo/Takeshima islands issue has become a cultural phenomenon in South Korea, in which the popular desire for national pride has increasingly been intertwined with the government’s efforts for promoting its policy position vis-à-vis Japan. We argue that narratives on Dokdo – created in and through activities in the realms of education, media, and civil society activism – are designed to enhance South Korean territorial sovereignty over the islands. In the process, however, Dokdo has become a symbol of Korean identity or “Koreanness,” as the public, teachers, students, and activists have all engaged in meaning-making activities surrounding the islands. This phenomenon has become salient, in part because these actors sought to respond to Japan’s own activities, including the designation of “Takeshima Day” in 2005. As part of a grassroots movement, their strategy of creating everyday symbols over the islands not just expressed, but also reproduced Korean national identity.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125598747","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 : 2019-05-09DOI: 10.1163/22134484-12340118
Seokwoo Lee, Seryon Lee
{"title":"Decision of the Korean Court on Japanese Forced Labor re New Nippon Steel Corporation (Supreme Court, Case 2013 Da 61381, Final Judgment)","authors":"Seokwoo Lee, Seryon Lee","doi":"10.1163/22134484-12340118","DOIUrl":"https://doi.org/10.1163/22134484-12340118","url":null,"abstract":"","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123828438","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 : 2019-05-09DOI: 10.1163/22134484-12340116
M. Chung
In this Article, the “three-staged judicial review” found in the reasoning of territorial arbitral awards of the International Arbitral Tribunal and decisions of the Permanent Court of International Justice and the International Court of Justice, was discussed. The Tribunal and Court have attributed the utmost priority to boundary treaties (in most cases, concluded between two imperial nations in the past), peace treaties, uti possidetis juris, and an adjudicative award in adjudicating the sovereign matter. Conversely, a chain-of-title through cession and succession from ancient times is of no value. In the absence of any legal title, then effectivités is taken into consideration. One of the rationales behind the reasoning was that the principle of stability of boundaries is of such importance that it may defeat other principles of international law, e.g., even jus cogens. It is, however, suspected that contemporary reasoning demonstrates bias toward maintaining past colonial rule under the guise of the stability of boundaries. Domestic property law and economics approach also explains that a state with written title (based on boundary treaties, peace treaties, the principle of uti possidetis, and arbitral awards) and a state with effectivités are more likely to be considered to have control over territory in issue than a state with original ownership. As to the issue of the Liancourt Rocks, Japan claims that it will be necessary for Korea and Japan to diplomatically negotiate to refer the matter to the Tribunal or the Court. However, Korea does not feel the need to agree on referring the matter to the International Judicial Body. The first reason for Korea’s attitude is that Korea already physically occupied the island with its police force. The second reason is that Japan has a choice, either to take the island back with direct confrontation or to accept the loss and leave Korea’s sovereignty alone, that the Liancourt Rocks has of little value to Japan, compared to other territories disputed between Japan and its neighboring states, and therefore, that it is almost impossible to imagine that Japan would dare to choose direct confrontation. There are likely to be many more reasons for leaving Korea’s sovereignty over the Liancourt Rocks alone than for initiating military operation over the small island. The third reason is that, although Korea is more likely to win the case given the reasoning and its three rationales above mentioned, Korea’s ownership of this island would become a fait accompli without taking unnecessary risk of deferring the sovereign matter of critical national interest to the third judicial body.
{"title":"Analysis of the Territorial Issue regarding the Liancourt Rocks between Korea and Japan","authors":"M. Chung","doi":"10.1163/22134484-12340116","DOIUrl":"https://doi.org/10.1163/22134484-12340116","url":null,"abstract":"\u0000In this Article, the “three-staged judicial review” found in the reasoning of territorial arbitral awards of the International Arbitral Tribunal and decisions of the Permanent Court of International Justice and the International Court of Justice, was discussed. The Tribunal and Court have attributed the utmost priority to boundary treaties (in most cases, concluded between two imperial nations in the past), peace treaties, uti possidetis juris, and an adjudicative award in adjudicating the sovereign matter. Conversely, a chain-of-title through cession and succession from ancient times is of no value. In the absence of any legal title, then effectivités is taken into consideration.\u0000One of the rationales behind the reasoning was that the principle of stability of boundaries is of such importance that it may defeat other principles of international law, e.g., even jus cogens. It is, however, suspected that contemporary reasoning demonstrates bias toward maintaining past colonial rule under the guise of the stability of boundaries. Domestic property law and economics approach also explains that a state with written title (based on boundary treaties, peace treaties, the principle of uti possidetis, and arbitral awards) and a state with effectivités are more likely to be considered to have control over territory in issue than a state with original ownership.\u0000As to the issue of the Liancourt Rocks, Japan claims that it will be necessary for Korea and Japan to diplomatically negotiate to refer the matter to the Tribunal or the Court. However, Korea does not feel the need to agree on referring the matter to the International Judicial Body. The first reason for Korea’s attitude is that Korea already physically occupied the island with its police force. The second reason is that Japan has a choice, either to take the island back with direct confrontation or to accept the loss and leave Korea’s sovereignty alone, that the Liancourt Rocks has of little value to Japan, compared to other territories disputed between Japan and its neighboring states, and therefore, that it is almost impossible to imagine that Japan would dare to choose direct confrontation. There are likely to be many more reasons for leaving Korea’s sovereignty over the Liancourt Rocks alone than for initiating military operation over the small island. The third reason is that, although Korea is more likely to win the case given the reasoning and its three rationales above mentioned, Korea’s ownership of this island would become a fait accompli without taking unnecessary risk of deferring the sovereign matter of critical national interest to the third judicial body.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121647889","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 : 2018-10-03DOI: 10.1163/22134484-12340114
K. Scott
An overview of maritime enforcement in New Zealand waters as part of a broader project on maritime enforcement in the Asia Pacific region.
作为亚太地区更广泛的海上执法项目的一部分，概述新西兰水域的海上执法情况。
{"title":"Maritime Law Enforcement in New Zealand","authors":"K. Scott","doi":"10.1163/22134484-12340114","DOIUrl":"https://doi.org/10.1163/22134484-12340114","url":null,"abstract":"\u0000An overview of maritime enforcement in New Zealand waters as part of a broader project on maritime enforcement in the Asia Pacific region.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114207750","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 : 2018-10-03DOI: 10.1163/22134484-12340110
Hadyu Ikrami, Leonardo Bernard
Since President Joko Widodo took office in 2014, he has placed maritime governance at the top of his agenda, as evidenced by the introduction of his vision on Indonesia as a ‘global maritime fulcrum’. This article discusses how his administration has been working towards such a goal. First, it provides an overview of Indonesian laws related to maritime governance. Second, it looks at the institutions responsible for administering, enforcing, and/or applying those laws and how they have been performing their functions. Third, it explores how those institutions cooperate with external parties in four areas of Indonesia’s major interest at present: maritime security; safety of navigation; protection of the marine environment; and illegal, unreported, and unregulated fishing. Lastly, this article also discusses the challenges faced by the State in governing its maritime affairs and offers suggestions for a better maritime governance.
{"title":"Indonesia’s Maritime Governance","authors":"Hadyu Ikrami, Leonardo Bernard","doi":"10.1163/22134484-12340110","DOIUrl":"https://doi.org/10.1163/22134484-12340110","url":null,"abstract":"\u0000Since President Joko Widodo took office in 2014, he has placed maritime governance at the top of his agenda, as evidenced by the introduction of his vision on Indonesia as a ‘global maritime fulcrum’. This article discusses how his administration has been working towards such a goal. First, it provides an overview of Indonesian laws related to maritime governance. Second, it looks at the institutions responsible for administering, enforcing, and/or applying those laws and how they have been performing their functions. Third, it explores how those institutions cooperate with external parties in four areas of Indonesia’s major interest at present: maritime security; safety of navigation; protection of the marine environment; and illegal, unreported, and unregulated fishing. Lastly, this article also discusses the challenges faced by the State in governing its maritime affairs and offers suggestions for a better maritime governance.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121306491","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 : 2018-10-03DOI: 10.1163/22134484-12340113
J. Wraith, C. Schofield
Australia is deeply connected to the ocean. A uniquely large island nation with a long coastline and few close neighbours, Australia benefits from an immense maritime domain, the third largest in the world. However, with relatively few maritime enforcement resources and an extreme dependence on sea bourne trade, maritime enforcement Australia faces an extremely difficult task in monitoring and ensuring compliance with national laws throughout its maritime jurisdiction. We highlight current threats to Australia’s marine environment including protection of natural resources, piracy, terrorism and illegal arrivals, and examine Australia’s capabilities, legislation and approach to combating these risks. Essential to Australia’s strategy is collaboration across domestic civil and defence agencies, use of innovative approaches and technologies, and regional and international partnerships through creative agreements and treaties.
{"title":"Australia’s Endeavours in Maritime Enforcement","authors":"J. Wraith, C. Schofield","doi":"10.1163/22134484-12340113","DOIUrl":"https://doi.org/10.1163/22134484-12340113","url":null,"abstract":"\u0000Australia is deeply connected to the ocean. A uniquely large island nation with a long coastline and few close neighbours, Australia benefits from an immense maritime domain, the third largest in the world. However, with relatively few maritime enforcement resources and an extreme dependence on sea bourne trade, maritime enforcement Australia faces an extremely difficult task in monitoring and ensuring compliance with national laws throughout its maritime jurisdiction. We highlight current threats to Australia’s marine environment including protection of natural resources, piracy, terrorism and illegal arrivals, and examine Australia’s capabilities, legislation and approach to combating these risks. Essential to Australia’s strategy is collaboration across domestic civil and defence agencies, use of innovative approaches and technologies, and regional and international partnerships through creative agreements and treaties.","PeriodicalId":325796,"journal":{"name":"The Korean Journal of International and Comparative Law","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114238676","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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