International Law as between Northeast Asian States: A commentary on Selected Sources
(May 2016)
Asif H Qureshi, Yoon-Kyung Lee & Kim, Pyounghwa
(Updated January 2017)
1. Introduction
Northeast Asia (NEA) comprises in the sense of its common description in its regional setting, of China, Korea and Japan. This description however is not necessarily a neutral self-evident geographical encapsulation of the region. It is a combination of geography and common racial, cultural, linguistic, religious and historic heritage that configures in the description. Certainly, common Western conceptions of the region are often less discerning and group Northeast Asia into the Far East. The common geography and heritage however are marred by historic conflicts. In the face of it therefore the description Northeast Asia is also an aspirational description for some form of solidarity even if distant. Moreover, this need for solidarity in the face of adversity is particularly spurred by the regional economic success and its further potential. In this regional milieu, therefore an enquiry into the setting of international law and its role in the region has much to commend it --- in particular as an ‘arbitrator’, as a facilitator, as a normative force --- including as a vehicle for the external impact of the region. There is a dearth of legal analysis of international law from a regional perspective. This is mainly for two reasons. First, the basic unit of international law is the State. Second, a regional perspective of international law has been understood as undermining the notion of the ‘universality’ of international law. Be that as it may there are sound reasons for contextualizing international law in a regional context. First, law can vary according to its regional setting – indeed law may need to take account of the variations of culture within which it operates. Second, international law and international politics are intertwined --- as such a regional context of law provides a more attenuated law and politics approach to legal engagement. Third, context provides for a better reflection of the consent of the parties to the development of international law, as well as facilitating its more efficient and effective implementation. Finally, as is well established in international law, regionalism can inform the scope of an international norm. Individually the countries in the Northeast Asia are now important economic powerhouses. But collectively they can be even more formidable. Politically the three are important players in international decision making respectively, but could be very significant collectively. Historically the three have been intertwined through conquests, divisions and disputes. Yet racially, culturally and in religious terms the three share a wealth of common ground. Geographically there is a unity that underlines environmental and economic interdependence. There is thus in this geographic proximity both a sense of promise and common destiny as well as ‘division and difference.’ In sum, the Northeast Asia construct is both an internal and to some extent also an external construct. There are cogent reasons for the contextualization of international law within this construct --- in particular with reference to international law inter-se the States in NEA.
This work focuses principally on general international law issues inter-se the States in NEA as it has been considered in the legal literature in the field. It does not therefore set out to define the general international law issues inter-se the relations between the States as such. Moreover, the work does not cover the field of International Economic Law, which whilst important for the region, is reserved for its treatment in another place. This work is a guide to a select legal scholarship in this field from China, Japan and Korea and is by no means exhaustive. In addition, it is not intended to engage with the different works here or indeed to be judgmental about the literature as such. The commentaries are therefore to the extent possible neutral as to the nature of the substantive contents of the works selected. Finally, this focus on the literature is from a legal perspective and therefore policy sources are not the main focus of the work.
The treatment of the bibliographies is as follows. The second section focuses on general sources viz., Textbooks & Edited Volumes; Journals and Datasets. The third section contextualizes International Law in the Northeast Asian matrix through a series of sub-sections viz., International Law in its Historical Setting in NEA; International Law and Confucian, Buddhist and Communist Doctrines; and Northeast Asian Perspectives in International Law. The fourth section focuses on the Relationship between International Law and Municipal Law in NEA focusing in particular on the manner of the reception of International Law in NEA. The fifth section is titled Spatial Conflicts in Northeast Asia with sections on the Law of the Sea, Acquisition of Territories and Airspace in Northeast Asia and Air Defense Identification Zones. The sixth section is titled Human Rights issues as between States in Northeast Asia with a particular emphasis on the issues related to Comfort Women. The seventh section concerns itself with environmental issues with a focus on Fukushima Nuclear Plant Disaster. The final section is titled Peace and Security and focuses essentially on approaches to dispute settlement in the region and denuclearization. The recent Japanese new self-defense policy is not covered though doubtless it will generate interest from an International Law perspective. The final section comprises of a brief conclusion on the general nature of the scholarship in the region.
2. General Overviews: Textbooks & Edited Volumes
General sources in international law that have a setting in Northeast Asia can be found in textbooks, edited volumes, journals and electronic data bases. Generally, these sources are of relatively recent origins although the pace at which the focus in international law is developing is very noticeable --- particularly in the field of International Economic Law, and issues of conflict as between the three nations respectively. In some measure the content and quality of such works in international law reflects the research culture in Universities; State influence in the work of academics and their work with the respective governments; and the degree and manner in which international law scholarship from the West is received within the region. Thus, in some States textbooks may be the subject of greater State scrutiny than scholarship in journal articles. Moreover, textbooks and monographs generally are less weighted than article publications in terms of academic career progression in universities. Where
research funding is dependent on the State and there is active involvement of academics in governmental work, the scholarship is more practitioner oriented --- indeed more in the nature of advocacy. The general works in international law do not normally draw as much as they could on regional case studies --- reflecting instead western scholarship or even simply translating it in the native language. Indeed, there is a significant reliance on western standard general works in international law, for example Shaw and Brownlie’s textbooks on International Law including cases emphasized in these works. Moreover, there is a dearth of literature that is theoretically based apart from the international law scholarship based on Marxist philosophy. The general textbooks and edited volumes selected herein are set out in terms of their country of origin and also language wise. Where there are English language sources, these are set out separately within the country of origin setting. The western titles are not included in this section.
The two-important works in China are those by Wang, Tia (1981) and Bing Bing JIA (2009) The former is a long-established publication.
王铁崖. 国际法. 法律出版社, 1981. (Wang, Tieya. International Law. Law Press China, 1981.)
This is an established textbook of International Law widely used in China written by an eminent Chinese International Lawyer. The latest edition was published in 2005. The work comprises of 13 chapters focusing on general international law subjects.
贾兵兵. 国际公法: 理论和实践. 清华大学出版社, 2009. (Bing Bing JIA. Public International Law: Theory and Practice. Beijing: Tsinghua University Press, 2009.)
Written by one of China’s leading International Law Scholars of this generation this title covers standard international topics including a number of examples of Chinese State practice with references. The publication is aimed at both students and practitioners. A new edition is forthcoming which will include a narrative on the South China Sea Arbitration.
The two works of note in Japan highlighted below involve a number of authors. The (Seiji, Koichi, and Atsuko Kanehara (2013) is an edited work now in its second edition.
柳原正治・森川幸一・兼原敦子(編)『プラクティス国際法講義(第2版)』(信山社、2013年)(Seiji, Koichi, and Atsuko Kanehara, eds. The Practice of International law. 2nd ed. TOKYO: Shinzansha, 2013)
Widely used in Japanese universities as an introductory source book in international law --- includes both General International Law as well as International Economic Law and Environmental Law. The contributors are from established Japanese universities.
小寺彰・岩沢雄・森田章夫編『講義国際法(第2版)』有斐閣 2010 (Akira, Yuji, and Akio Morita, eds. International Law. 2nd ed. TOKYO: Yuhikaku, 2010)
This work covers important General International Law topics including International Human Rights Law, International Economic Law and Law the Sea. The book has a focus on contemporary issues.
In Korea, the two widely used and recent works are of Kim, Dae Soon (2013) and Chung, In Seop (2014).
김대순. 국제법론. 제17판. 서울: 삼영사, 2013. (Kim, Dae Soon. Theory of International Law. 17th ed. Seoul, Korea: Samyoungsa, 2013.)
This textbook on International Law is widely used in universities in Korea. It was first published in 1996 with a forthcoming edition in 2015. The author covers standard international law topics drawing on some of the issues that are specific to Korea although not in great depth.
정인섭. 신 국제법 강의:이론과 판례. 제4판. 서울: 박영사, 2014 (Chung, In Seop. Lectures on International Law: Theory and Cases. 4th ed. Seoul, Korea: Bakyoungsa, 2014)
This is an established work in Korea covering the standard topics in international law with some focus on Korean issues.
Seokwoo Lee, Hee Eun Lee. The Making of International Law in Korea: From Colony to Asian Power. Brill-Nijhoff, 2016.
This book deals with the relationship of Korea and International Law from the stand-point of different but related subjects, for example, history of the introduction of International law in Korea; the legacy of Japanese colonialism; and maritime boundary issues. In this manner, the book offers outsiders an understanding of contemporary international legal issues concerned with Korea. Every chapter is accompanied by extracts from related cases. Note: There are no footnotes in the book.
The three countries in Northeast Asia together generate several specialized journals in international law including journals on sub-sets of subjects in international law, in particular International Economic Law. Moreover, the medium of the journals is not only in the respective native language but also English. Most of the journals are published by societies of international law, for example Japanese Yearbook of International Law; 국제법학회논총(Journal of Korean Society International Law); 서울국제법연구(Seoul International Law Journal), Korean Yearbook of International Law; and the Chinese Journal of International Law. Some journals are affiliated with the State system, for example,
国際法外交雑誌(Japanese Journal of International Law and Diplomacy); 국제법 동향과 실무(Trends and practices in International Law); 통일과 법률(Unification & Law); 통상법률(International Trade Law). In recent years, particularly a number of new journals have been established, for example Korea Journal of International and Comparative Law (Nijhoff) (in English in 2013); and Korean Yearbook of International Law (in English in 2013). The journals listed herein are general international law journals.
International Law Review of Wuhan University, 2003-
This is a Chinese language publication from Wuhan University with a strong tradition in International Law.
Chinese Journal of International Law, 2002-
This is now an authoritative Chinese journal in international law in English language published by OUP. The journal is in its 13th volume with four issues per year.
Japanese Yearbook of International Law. 1957-
This is a long established Japanese journal in the English language covering not only Public International Law but also Private International Law and Comparative Law from a Japanese perspective. Most of the contributions are from Japanese authors focusing on such issues as Japanese rules of jurisdiction and domestic court decisions touching on international issues.
Journal of International Law and Diplomacy 1902-
This is an established journal published under the auspices of the Japanese Society of International Law in the English language.
국제법학회논총, 1956-. (Korean Journal of International Law, 1956-.)
The Korean Society of International Law publishes this quarterly journal in Korean. The journal contains some extracts in English. International Law scholars elaborate their interest and opinion on modern International Law. It is evaluated as a very professional and prestigious journal in Korea.
Journal of East Asia and International Law, 2008-
This is an authoritative journal from Korea that has established itself in a relatively short period of time.
There are a number of official websites with original material although generally there is more material that is accessible in the respective native languages than in English. Some international data bases also have regional specific material, for example Westlaw. Of particular interest are the respective foreign office websites.
China *中華民國外交部 (Ministry of Foreign Affairs China) []*
Material on Chinese treaties can be found in the treaty section. *北大法律英文网 (China Law Information) []*
This is an online data base established by Peking University that contains translations of Chinese domestic law including tax treaties.
Japan *外務省 (Ministry of Foreign Affairs Japan) []*
Contains treaties submitted to the Japanese Diet in English; Database of Diplomatic Documents of Ministry of Foreign Affairs; and Diplomatic Archives of the Ministry of Foreign Affairs of Japan. Also, to be found are the official Japanese perspectives on regional conflicts.
*Japanese Law Translation[]*
This is a data that has some 280 laws of Japan so far translated in English. Japanese legislation of particular interest to foreigners are also to be found on the Ministry of Justice. *website[]*
Korea *외교부 (Ministry of Foreign Affairs and Trade Korea) []*
This website sets out Korean State position on various regional conflicts affecting Korea and Korean practice in international law including treaties concluded by Korea. *대한민국 영문법령 (Statutes of Republic of Korea) []*
This site contains Statues of the Republic of Korea translated in English. *한중일 3국 협력 사무국 (Trial Cooperation Secretariat) []*
This is the official website of the recently established Trilateral Cooperation Secretariat as between China, Japan and Korea.
3. Contextualizing International Law in the Northeast Asian Matrix
Contextualizing International Law in the NEA involves a bundle of questions: Is NEA sufficiently cohesive so as to warrant the regional label of ‘Northeast Asia’? What do we mean by International Law
in a regional context? Does International Law respond to regions? What claims and agendas can international law advance in the NEA? Does Northeast Asia as a region have a contribution to make to the development of International Law? Is there a Northeast Asian approach to International Law? Is international law driven by regionalism? Is regionalism a vehicle for the realization of certain communal aspirations best dealt with at a regional level? What is the relationship between regionalism and universalism? Is there recognition in the practice of international organizations to take into account regionalism? How do certain affinities between neighboring States viz., a common history, and religion etc. impact on the engagement of international law with the region? Is regionalism an aspect of the contextualization of international law which ensures a better reflection of local values, consent of the States in the region, and implementation of international law? In this section the material on historical and philosophical underpinnings along with regional perspectives are set out.
It should be noted here that in so far as general issues arising from the relationship between regionalism and international law are concerned, this is somewhat of a neglected field with the exception of the focus on it in the context of fragmentation in international law in the ILC Report of the Study Group on Fragmentation of International Law (A/CN.4/L.682 paragraphs 195-217).
3.1 International Law in its Historical Setting in NEA
The general historical setting of international law in NEA can be understood chronologically; against a conception of an international legal system and normatively. It can also be understood in the context of the channels through which it came and was received in NEA. Moreover, this context also has a setting in terms of the general discourse on the historical ‘Christian’/’civilized’ era of international law and its world view of outsiders. Generally, the treatment of the historical setting of international law in NEA is not well considered in the scholarship of the region nor indeed internationally although of late there has been some growing interest for example Toshiya Keki ‘Historical Analysis on the impacts and influences of international law in East Asia and its future’ in Seokwoo Lee, Hee Eun Lee (eds.) Northeast Asian Perspectives on International law: Contemporary Issues and Challenges. (Leiden: Martinus Nijhoff, 2013). The literature set out below is one found in English. In each jurisdiction, it is possible to find an account of how international law was received first in the country for example in China Wang, Tieya (1990-11); in Japan Kinji Akashi (2004); and in Korea Jae Schick Pae, Nam-Yearl Chai, and Choon-ho Park (1981)
Wang, Tieya. "International law in China: historical and contemporary perspectives." Recueil des cours 221 (Hague Academy) (1990-II): 195-369.
This is one of the most authoritative piece of work in this field focusing on the origins of international law in China.
Eric Yong-Joong Lee. "Early development of Modern International Law in East Asia --- With Special Reference to China, Japan and Korea” 4 J. Hist.Int’L L. 42 (2002):
This is a more recent and relatively briefer insight on the subject. The paper focuses on the manner in which modern international law developed in China, Japan and Korea.
Kinji Akashi, Miicael, Yanagihara and Masaharu, eds. "Japanese 'Acceptance' of the European Law of Nations. A Brief History of International Law in Japan." East Asian and European Perspective on International Law. Baden-Baden: Nomos (1853-1900): 2004
This work traces the historical reception of the European Law of Nations in Japan.
Hui-gi Sim, Miicael, Yanagihara and Masaharu, eds. "Brutal Internal Struggle against External Imperialism: The Initial Phases in the Reception of Western Law into Korean Society in the 1890s." East Asian and European Perspective on International Law. Baden-Baden: Nomos: 2004.
This work gives an account of the reception of international law in Korea in the late nineteenth century.
Bardo Fassbender & Ann Paters, The Oxford Handbook of the History of International Law (OUP:2012) in particular chapter 19 by Shin Kawashima titled ‘China’; chapter 20 by Masaharu Yanagihara titled ‘Japan’; Chapter 29 by Chi-Hua Tang titled ‘China-Europe’; and chapter 30 Kinji Akashi titled ‘Japan-Europe’.
This comprehensive collection of works on the historical development of international law not only has a number of general chapters on the history of international law that are generally relevant to the NEA but also some specific works on the region. Excluded however is Korea.
Jae Schick Pae, Nam-Yearl Chai, and Choon-ho Park, eds. "Korea’s Reception and Development of International Law." Korean International Law (Korea Research Monograph 4: 1981) Institute of East Asian Studies.
This paper traces Korean encounters with international law during 1882-1904, 1905-1947 and 1948 to the present (viz., 1981).
Rune Svarverud, International Law as a World Order in Late Imperial China: Translation, Reception and Discourse 1847-1911 (Brill: 2007)
This substantial and important work traces as the author puts it the ‘intellectual history of international law’ in late imperial China. The book has six chapters the core of which trace in chronological order the reception of international law into China from imperial China to early twentieth century. The author surveys how international law was received in China and the intellectual discourse during this time on international law within China.
Jon Van Dyke, Seokwoo Lee and Hee Eun Lee, eds. "The Introduction of Western International Law
into Japan’ chapter VII in Northeast Asian Perspectives on International law: Contemporary Issues and Challenges." Leiden: Martinus Nijhoff: 2013
This is titled as an introductory chapter to the reception of international law in Japan. It is however quite a comprehensive historical overview of the reception of international law in Japan including at a time when the Japanese system was based on neo-Confucian concepts of obligation and hierarchy.
Masaharu Yanangihara. “Significance of the History of the Law of Nations in Europe and East Asia.” In Recueil des Cours, Collected Courses of The Hague Academy of International Law Vol.371, 273-435. Nijhoff, 2015.
The author introduces the historical development of International Law in North East Asia by first reflecting upon the very definition of International Law. This is followed by discussion on the reception of International Law in East Asia and its validity. There follows a focus on the territory of Japan and Japanese engagement in international adjudication.
3.2 International Law and Confucian, Buddhist, and Communist Doctrines.
The philosophical underpinnings in the region that have a bearing on the development of the societies in the region, including the State systems and the regional and international context that they inform --- are inextricably connected with a contextual approach to understanding international law in a regional setting. In terms of NEA Confucianism, Buddhism and Marxism have had a particular impact on the region. The literature that follows focuses on these philosophical underpinnings in NEA written in English viz., K. Iriye (1967) on Confucian doctrine; K.N Jayatilleke (1967) on Buddhist doctrine and Hungdah Chiu (1966) on Communism.
Lee, Luke T and Lai, Whalen W. "The Chinese Conceptions of Law: Confucian, Legalist, and Buddhist." The Hastings Law Journal Vol. 29 (1978): 1307-1330.
This article reviews Confucian, Legalist and Buddhist doctrines relevant to an understanding of the development of the Chinese legal system.
Keyshiro Iriye. "The principles of International Law in the light of Confucian doctrine." Recueil Des Cours (1967): 1-57.
An authoritative historical approach to providing insights into Confucian doctrine in the context of international law.
Kulatissa Nanda Jayatilleke. "The principles of International Law in Buddhist Doctrine." Recueil Des Cours (1967): 534-563
This is a seminal piece on Buddhist philosophy in terms of international relations and law.
Hungdah Chiu. "Communist China’s Attitude Towards International Law." AJIL. Vol.60, No.2 (1966): 245-267.
Written in the cold war era of international relations this article focusses on some fundamental issues in international law such as sources of international law and the discipline of international law in communist China.
Junwu Pan. "Chinese Philosophy and International Law." AJIL 1.2 (2011): 233-248.
This is a short but recent account of Chinese doctrinal thinking on international law and relations in the light of globalization.
3.3 Northeast Asian Perspectives in International Law
There is no NEA perspective as such of international law. Although there have been various publications lately which set out a number of preoccupations in foreign relations amongst the States of NEA under international law. These publications may shed some light on a collective perspective of international law but certainly give insights into individual perspectives on conflicts within the region --- and as such they form part of the contemporary backdrop of the substantive context of the region, albeit that is practically grounded. These publications also have relevance in terms of some of the other topics set out in this work. Many of the publications are in the English language with noticeable contributions originating in Korea under the heading of ‘perspectives’.
Some insights into Chinese perspectives in International Law are provided by Xue Hanqin whereas Eric Yong Joong Lee’s work brings together Chinese perspectives on a number of diverse topics.
Xue Hanqin. "Chinese Perspectives on International Law: History, Culture and International Law." Recuel Des Cours Vol 355 (2011).
This is an authoritative and comprehensive review of present day Chinese perspectives on the practice of international law in the past 60 years. The work is also relevant for its historical account.
Eric Yong Joong Lee. (Ed) China and International Law in the 21st Century. Seoul: Yijun Press, 2014.
This is a collection of papers by Chinese international lawyers on such diverse issues as Regional Security, Human Rights, Maritime Affairs, Environment, Economy and Trade, Civil Aviation and Space Development.
ZHU Lijiang. “Chronology of Practice: Chinese Practice in Public International Law in 2015”. Chinese Journal of International Law (2016): 639-689
This work traces Chinese practice relating to various branches of International Law in 2005.
Different stand-points on diverse international law issues are collected in one volume in Nisuke Ando (1999)
Nisuke Ando. Japan and International Law. Past, Present and Future: international symposium to mark the centennial of the Japanese Association of International Law. Boston: Kluwer Law International,1999
This is the record of the papers delivered at an international symposium held in Kyoto to mark the centennial of the Japanese Association of International Law. The papers cover War and Peace, Economic and Human Rights issues.
Korean international law scholars have been very active in writing about the different foreign relations issues of relevance to Korea. Most of these have found expression in edited works for example Paik, Choong-Hyun (2004), and Seokwoo Lee and Hee Eun Lee (2013)
Chouing Il Chee. Korea and International Law. Seoul: Korea University, 1993.
Covers topical issues of the time faced by Korea written by a former ILC member from Korea --- including maritime claims, diversion of Han River by North Korea and the status of UN command in Korea.
Paik, Choong-Hyun. (ed) International Law in Korean Perspective. Seoul: Seoul National University Press, 2004.
This is a collection of different works focusing on different issues of concern to Korea --- including such issues in terms of the Law of the Sea; International Economic Law; International Criminal Law and international law practice in domestic courts.
Park Hee Kwon. International law and the Republic of Korea: A Glimpse of Current International Legal Issues. Seoul: Korea Law of the Sea Society 2006.
Written by a Korean diplomat covers diverse subjects including Dokdo, International Criminal Law and Nuclear disarmament in the Korean Peninsula.
Seokwoo Lee and Hee Eun Lee, eds. Northeast Asian Perspectives on International Law: Contemporary Issues and Challenges. Leiden: Martinus Nijhoff Publishers, 2013.
This publication is based on papers delivered at a joint conference of members of the Chinese Society of International Law, Japanese Society of International Law and Korean Society of International Law in 2010. The publication covers topics in general international law, human rights, international security and legal education in the NEA context.
이규창 엮음. 북한의 국제법관. 파주: 한국학술정보, 2008․2012 (Lee, Kyu-Chang. North Korea’s Perspective on International Law. Paju: Korea Studies Information, 2008․2012.
This publication comprises a collection of 112 North Korean articles on international law along with domestic regulations in 2-volumes. Most of the collections are from Kim IL Sung University’s legal journal, along with articles from North Korean state newspapers.
4. The Relationship between International Law and Municipal Law in NEA
The relationship between international law and municipal law in NEA is in a sense a continuation of the process of contextualization of international law in NEA. Fundamentally this relationship is concerned with the domestic processes involved in the formulation of national foreign policy making, in particular involvement in international treaty making along with the implementation of international law in the domestic system. In general, international law discourse the former is given less focus than the latter and this is reflected in the scholarship in the field, for example D Hollis et al National Treaty Law & Practice (Martinus Nijhoff:2005 which includes chapters on China and Japan). Here mainly English language works are highlighted viz. Xue Hanqin & Jin Qian (2009) China; Iwasawa, Yuji ((1993) Japan, and Kyung Soo JUNG (2008) Korea.
Xue Hanqin & Jin Qian. International Treaties in the Chinese Domestic Legal System. Chinese Journal of International Law, 2009
An informative work in which the authors examine the different ways in which China implements its international obligations under its domestic legal system.
Iwasawa, Yuji. “The relationship between International Law and National Law: Japanese Experience” In the British Yearbook of International Law, vol.64, 333-390. Oxford, UK: Oxford University Press, 1993.
This is a substantial and authoritative work written by one of Japan’s leading international scholars.
정경수. "국제법의 국내적용에 관한 한국의 법체계와 경험." 국제법평론. 통권 제28호. (2008): 95~125 (Kyung Soo JUNG. "Korean Legal System and Experience on Domestic Application of International Law." Korea International Law Review 28 (2008): 95~125
This article explains how international law is received under the Korean legal system against the background of relevant case law including the differences in judicial approaches as between issues of human rights and trade.
张乃根. “探析条约解释的若干问题: 国际法与国内法的视角”. 国际法研究,2016. (Zhang Naigen. “Analysis on Some Issues of Treaty Interpretation: the Perspectives of International Law and Domestic Law”. Chinese Review of International Law, 2016. )
The author provides guidance for Chinese practices of treaty application and peaceful disputes settlement from the perspectives of International Law and domestic law.
戴瑞君. “认真对待国际法——基于对亚洲各国宪法文本的考察”. 国际法研究, 2016 (Dai Ruijun. “Taking International Law Seriously: An Empirical Investigation Based on Constitutional Texts of All Asian States”. Chinese Review of International Law, 2016.)
This work illustrates the relationship between International Law and national law in the constitutional law setting of various Asian countries.
5. Spatial Conflicts in Northeast Asia
There are a number of long running maritime and territorial disputes in NEA. To this list is now to be added disputes over the use of airspace. Such conflicts have been a major stumbling block in the political and economic integration of the region. Therefore, there is much scholarship that has been devoted to it although the scholarship sometimes needs to be distinguished from the advocacy of a particular claim. The conflicts focused upon here are as between Japan, China and Korea. They do not include conflicts with States outside the NEA.
5.1. The Law of the Sea & Acquisition of Territories
A number of the important spatial disputes in NEA involve both maritime boundary and territorial claims --- the latter essentially over Islands. The disputes are interrelated, historical and compounded by some uncertainty in the law --- particularly in terms of the delimitation of maritime regimes. The maritime disputes inter se, as between States in NEA are concerned with the delimitation of the different maritime zones (mainly continental shelf and the EEZ) and involve notably Japan/China; Japan/Korea respectively. The literature in this sphere therefore has been extensive and since it can be partisan the works here are set out in terms of their respective origins. General edited works with relevant papers set out in section III above are not repeated here.
The literature from China in the English language is of more recent origin for example S Wei Su, (2004), Zou Keyuan (2005), Han-yi Shaw (2008), Junwu Pan (2009) and Mincai Yu, China Beijing (2014). Moreover, there has been engagement in the discourse from outside China as for example R M Scoville, ‘A defense of Japanese sovereignty over the Senkaku/Diaoyu Islands’ Marquette University Law School Legal Studies Research Paper Series Research Paper no.13-16 (2013).
Ying-Jeou Ma. Legal Problems of Seabed Boundary Delimitation in the East China Sea. Baltimore: University of Maryland, 1984
One of the first substantial monographs on Seabed Boundary Delimitations in East Asia widely
regarded as noteworthy.
Shaw, Han-yi, "The Diaoyutai/Senkaku Islands Dispute: its History and an Analysis of the Ownership Claims of the P.R.C., R.O.C., and Japan." Maryland Series in Contemporary Asian Studies No.3 (1999)
This book is a substantial and well researched work written by an author from the Republic of China.
Steven Wei Su, "The Tiaoyu Islands and their possible effect on the maritime boundary delimitation between China and Japan." Chinese Journal of International Law 385 (2004)
This is a well-researched article which has a perspective of the maritime issues from the stand point of the territorial claims on the Islands in dispute.
Zou Keyuan, China's Marine Legal System and the Law of the Sea. Nijhoff, 2005.
This is a comprehensive analysis of China’s Marine Legal System with reference to the 1982 UNCLOS. The writer is also the author of Zou Keyuan Law of the Sea in East Asia: Issues and Prospects (Routledge: 2005). The author’s focus is comprehensive and not only in terms of NEA.
Han-yi Shaw. “Resolving the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence Under International Law and the Traditional East Asian World Order." Chinese (Taiwan) Y.B.of Int’L & Aff (2008)
This is a substantial work from an author who has been writing on the subject for some years from Taiwan.
Junwu Pan. Toward a New Framework for Peaceful Settlement of China's Territorial and Boundary Disputes. Brill (2009)
This work takes the perspective of dispute resolution with respect to China’s territorial and boundary disputes.
Mincai Yu, China Being. "A Maritime Power under the UNCLOS: Issues and Ways Ahead." Journal of East Asia & International Law 7 (2014): p.313
This is a general article that analyses UNCLOS from a contemporary Chinese perspective.
Greg Austin, China's Ocean Frontier: International Law, Military Force, and National Development
Austin Allen & Unwin (1998)
A consideration of China’s Ocean frontiers as a whole from an interdisciplinary perspective including a legal standpoint. It is for the readers to evaluate whether the focus is particularly
from a Chinese perspective or not.
There is comparatively less material in the English language on maritime and territorial issues facing Japan originating from Japan. Externally aside from discourse originating from China, there are works in particular originating in the US and Korea (though not cited below although of note) for example Seokwoo Lee, ‘Territorial Disputes among Japan, China and Taiwan Concerning the Senkaku Islands,’ Boundary and Territory Briefing Volume 3 Number 7 (2002) International Boundaries Research Unit; and TJ Schoenbaum ‘Resolving Japan’s Territorial and Maritime Disputes with its Neighbors: Problems and Opportunities’ (2006) 57 Journal of Social Science of the International Christian University in Japan 197–249; Ryan M.Scoville,’A Defense of Japanese Sovereignty Over the Senkaku/Diaoyu Islands,’ Marquette University Law School Legal Studies Research Paper No.13-16 (2013). Internally from Japan of note are: Matsui, Yoshiro (1997), Ha, Younsu (1999), Kuribayashi, Tadao (2006), Sakamoto, Shigeki (2008), Tadao Kuribayashi and Takene Sugihara (2010) and Serita, Kentaro (2010).
Matsui, Yoshiro. “International Law of Territorial Acquisition and Dispute over the Senkaku (Diaoyu) Islands” In Japanese Annual of International Law, vol.40. Edited by Japan Branch of the International Law Association, p.3. TOKYO: Japan Branch of the International Law Association, 1997
This is a substantial work published in an authoritative Japanese source.
Ha, Younsu. “Re-thinking of ‘the Dispute on Takeshima Islands’: From the view point of International Law” In Ryokoku Law Review, vol.2. 227-286. KYOTO, Japan: Ryukoku Law Association, 1999.
The article explores various aspects relevant to the question of title including the determination of the ‘critical date’. The author discusses prospects for the settlement of this dispute.
栗林忠男, 秋山昌廣編著 、『海の国際秩序と海洋政策』、東京 : 東信堂、2006 (Kuribayashi, Tadao. An international order of Sea and Marine Policies. TOKYO: Toushindou. 2006)
This work focuses not only on maritime boundary challenges faced by Japan but also the protection of marine ecosystems.
Sakamoto, Shigeki. “Japan-China Dispute over Maritime Boundary Delimitation – from a Japanese perspective” In Japanese Yearbook of International Law, vol.51.p.98. TOKYO: Japan Branch of the International Law Association, 2008.
In this brief piece the author takes an openly Japanese perspective to the Japanese-China maritime boundary issues.
栗林忠男編, 杉原高嶺編 、『日本における海洋法の主要課題、東京: 有信堂高文社、2010 (Tadao
Kuribayashi and Takene Sugihara, eds. The Law of the Sea and Japan. TOKYO: Yushindo-Kobunsha, 2010.)
This is an edited work covering a variety of topics concerned with the Law of the Sea as it affects Japanese interests including fishing of whales and research activities in the EEZ.
芹田健太郎著、日本の領土』、東京 : 中央公論新社, 2010.12 中公文庫 ; 中公文庫、(Serita, Kentaro. The Territory of Japan. TOKYO: Chukobunko, 2010.)
The author examines disputes with neighboring states of Japan from an international legal perspective.
There has been extensive focus originating in Korea in particular in English on the maritime and territorial boundary challenges faced by Korea --- in particular monographs and edited volumes viz., Chouing Il Chee (1999), Park Choon Ho (2000), Park Hee Kwon (2000), Lee Seok Woo (2002), Kim Sun Pyo (2004), Seokwoo Lee and Hee Eun Lee (2011), Jin-Hyun Paik, Seokwoo Lee and Kevin Y L Tan (2013) and Kim, Pilkyu (2014). Some external studies although limited are also to be noted for example Jon M. Van Dyke, ‘Legal Issues Related to Sovereignty Over Dokdo and Its Maritime Boundary’, 38 Ocean Development & International Law 38:1-2,157-224 (2007). Disputes arising from maritime and/or territorial boundary demarcation as between North and South Korea are not set out but see for example S. Lee & E Lee, ‘The Cheonan Incident: A perspective from international law and politics,’ chapter 9 in Seokwoo Lee, Hee Eun Lee (eds.) Northeast Asian Perspectives on International law: Contemporary Issues and Challenges. (Leiden: Martinus Nijhoff, 2013).
Chouing Il Chee. Korean Perspectives on Ocean Law Issues for the 21st century. The Hague: Kluwer Law International, 1999
This work focuses on the maritime challenges faced by Korea under the 1982 Law of the Sea Convention including a candid advocacy piece on the Dokdo Island.
Park Choon Ho. The Northeast Asia and Maritime Law: The Maritime Disputes among Korea. China and Japan as the central figure. Seoul: Seoul National University Press, 2000.
The author was a judge of the International Tribunal for the Law of the Sea. The work was first published in 1984 and has been translated in Chinese and Russian. The focus of the work is mainly on the problems between Japan, China and Korea (South and North).
Park Hee Kwon. The Law of the Sea and Northeast Asia: A Challenge for Cooperation. Kluwer Law International, 2000. (박희권. 해양법과 동북아시아: 협력을 위한 제언. 서울: 국제해양법학회, 2001)
Written by a Korean diplomat this work was first published in English and then translated in Korean. The work is comprehensive and includes in depth coverage of Island disputes in the
Lee Seok Woo. The Resolution of the Territorial Dispute between Korea and Japan over the Liancourt Rocks. International Boundaries Research Unit, 2002
The author takes a historical and legal analysis of the dispute over a cluster of islands variously known as Liancourt Rocks, Tokdo (in Korea) and Takeshima (in Japan). This is an authoritative contribution from a Korean perspective.
Kim Sun Pyo. Maritime Delimitation and Interim Arrangements in Northeast Asia. Martinus Nijhoff Publishers, 2004.
A significant and substantial work that focuses on Northeast Asia against the background of relevant international practice in the field.
Seokwoo Lee and Hee Eun Lee, eds. Dokdo Historical Appraisal & International Justice. Martinus Nijhoff, 2011.
This is an important work that includes contributions from outside Korea.
Jin-Hyun Paik, Seokwoo Lee and Kevin Y L Tan eds. Asian Approaches to International law and the Legacy of Colonialism: The Law of the Sea, Territorial Disputes and International Dispute Settlement. Routledge, 2013.
This edited work comprises of various contributions from Asian scholars and includes analysis of Korea’s claim of sovereignty over Gando/Jiandao Area in China and the border regime between China and North Korea.
Kim, Pilkyu. Claims to Territory between Japan and Korea in International Law. Bloomington: Xlibris, 2014.
This is an important recent monograph that has both a historical and legal perspective.
5.2. Airspace in Northeast Asia and Air Defense Identification Zones
Claims to the airspace in NEA have become contentious since the recent Chinese designations of its Air Defense Zones. In response to this there is now some literature addressing this issue as it relates to NEA viz., Kim Han-Taek (2013) and Lamont, C (2014).
Kim Han-Taek. "International Law on the Air Defense Identification Zones over the East China Sea." Korean Yearbook of International Law 49-71Volume 1. (2013): 141-159
This is a short but comprehensive introduction to Air Defense Identification Zones over the East China Sea with insights into Chinese, Japanese and Korean practices.
Lamont, Christopher. "Conflict in the Skies: The Law of Air Defense Identification Zones." Air & Space Law, 39 (3). (2014): 187-202
The author explores reporting requirements and the impact of such requirements on territorial claims.
Su Jinyuan. “The East China Sea Air Defense Identification Zone and International Law”. Chinese Journal of International Law. 2015.
This work focuses on China's declaration of the East China Sea ADIZ.
6. Human Rights issues as between States in Northeast Asia
Human rights issues in Northeast Asia are essentially rooted in the history of the region in particular arising from the Japanese occupation of Korea and its involvement in the Second World War. Contemporary human rights issues relate to human rights in North Korea and China and to some extent in South Korea where there is no legislation prohibiting discrimination against foreigners. The literature set out below is focused on the human rights issues arising from inter-se relations of the respective countries in the region, in particular in terms of the relations as between Korea and Japan much of which centers around the Comfort Women issue. The Comfort Women problem has generated much discourse and various studies from different disciplines and perspectives viz., Coomaraswamy, R (1996), Teraya, Koji (2013), E K Yamamoto & Sara Lee (2012), Lee Jang-Hie (2013), Yi Taejin (2008).
Coomaraswamy, Rhadika. Report of the Special Rapporteur on Violence against Women, its Causes and Consequences. U.N. Doc. E/CN.4/1996/53/Add.1. (1996)
This is an authoritative report under the auspices of the UN Commission on Human Rights on the issue of military sexual slavery during wartime in Korea.
Teraya, Koji. “A Consideration of the so-called Comfort Women Problem in Japan-Korea Relations: Embracing the Difficulties in the International Legal and Policy Debate.” Journal of East Asia & International Law, Vol.6 No.1. (2013): 195-220
Written by a Japanese Professor this article explores the difficulties in the factual and legal analysis involved in the Comfort Women problem. The article is published alongside one written by a Korean author viz., Seong Phil Hong, ‘Remedying “Enforced Sexual Slavery”: Validating Victims’ Reparation Claims against Japan.’
E K Yamamoto & Sara Lee. "Korean ‘Comfort Women’ Redress 2012 Through the Lens of US Civil and Human Rights Reparatory justice and experiences." Journal of Korean Law Vol II. (2012): 123-149
This work focuses on the Comfort Women issue from the perspective of reparatory justice.
Lee Jang-Hie. "Compensation of victims of Japanese forced labor during colonial rule and its international legal arguments and tasks." Korean Yearbook of International Law Volume 1 (2013)
This recent work reviews the issue of forced labour victims under Japanese colonial rule from the perspective of remedies and international law.
Yi Taejin. International Legal Issues in Korean-Japan Relations. Northeast Asian History Foundation, 2008.
This is an interesting Korean publication with contributions from both legal scholars and historians on some historical issues arising between Japan and Korea that have a human rights relevance, for example Kim Boochan, ‘Political Rights of Koreans in Japan at a local level’; Chang Bokhee, ‘War crimes against women: the issues of Comfort Women from Women’s Perspective;’ Chung Inseop, ‘Legal Issues surrounding Ethnic Koreans in Sakhalin.’
Surya P. Subedi. “China's Approach to Human Rights and the UN Human Rights Agenda”. Chinese Journal of International Law. 2015
This article demonstrates China's approach to human rights and the influence of China's rise to the international human rights system. It also makes suggestions for China to improve its human rights protection from domestic legal and constitutional system.
7. Fukushima Nuclear Plant Disaster in the framework of International Environmental Law
Northeast Asian countries have a level of proximity such that the environment they inhabit and share is interconnected. The consequences arising from transboundary environmental disasters in the region have been considered in legal scholarship for example Michael G. Faure, Song Ying (ed) China and International Environmental Liability Legal Remedies for Transboundary Pollution (Edward Elgar:2008). The 2011 Fukushima nuclear plant disaster in Japan is a specific case in point that brings to the forefront the importance of a concerted regional focus on environmental issues. Thus, all three countries in NEA have made efforts to establish consultative mechanisms for Disaster Management, Earthquake Disaster Mitigation, and Nuclear Safety under the auspices of the Trilateral Cooperation Secretariat. The literature below does not include general environmental works that originate in the respective countries of the NEA where specific works on international environmental law are to be found --- rather the focus is on the Fukushima nuclear disaster. In response to this disaster there have been various publications viz., Stephen G Burns (2012), Emily Benz (2013), Rebecca M. Bratspies (2012), Byungchun So and Christopher Salatiello (2012), and Yukari Takamura (2014), including books.
Stephen G Burns. "The Fukushima Daiichi Accident: The International Community Responds." Washington University Global Studies Law Review. Vol.11 No.4. (2012)
This is an authoritative substantial piece written by an expert on nuclear safety from the Head
of Legal Affairs of the Nuclear Energy Agency of the OECD.
Emily Benz. "Lessons from Fukushima: Strengthening the International Regulation of Nuclear Energy." William & Mary Environmental Law and Policy Review. Vol.37 Issue 3. (2013)
This is a recent comprehensive work that focuses both on domestic regulations of the nuclear sector as well as the international regime.
Rebecca M. Bratspies. "State Responsibility for Human-Induced Environmental Disasters." German Yearbook of International Law Vol.55. (2012), p.175
This is a general article from the perspective of State responsibility with reference to environmental disasters that takes the Fukushima disaster into account.
Byungchun So and Christopher Salatiello. "The Principle of Emergency Notification After the Fukushima Nuclear Accident." Seoul International Law Journal 18.2 (2011): 237-259
This is a substantial work examining notification and access to information requirements under international law in the event of a nuclear accident.
Yukari Takamura. "Release of radioactive substances into the sea and international law: the Japanese experience in the course of nuclear disaster." David D. Caron, Michael J. Kelly and Anastasia Telesetsky (Eds) The International Law of Disaster Relief (CUP: 2014)
The author examines the consequences of the release of radioactive substances under international law from the perspective of the Fukushima disaster.
8. Peace and Security
The focus on peace and security in NEA from an international law perspective has a number of dimensions. In the context of NEA two important spheres of international law are of particular note viz., peaceful settlement of disputes and the prohibition on use of force in particular denuclearization in the region. The former has raised a discourse on approaches to decision making and litigation in the cultural setting of NEA for example G Triggs (1997), Ramses Amer and Keyun Zou (2011), and Julian Ku (2012). Moreover, the approach to accepting external mechanisms for the settlement of disputes is to be found in the practice of China, Korea and Japan with reference to their manner of acceptance or otherwise of the jurisdiction of the International Court of Justice and other specialized dispute settlement mechanisms viz., International Criminal Court and the International Tribunal for the Law of the Sea. With respect to denuclearization, whereas much of the focus has been on North Korea Masahiko Asada (2004), E Y Joong Lee (2010), the objective of denuclearization has a wider setting in the region, including the political matrix of the region B. Howe & B Kondoch (2013).
Gillian Triggs. "Confucius and Consensus: International Law in the Asian Pacific." 21 Melb.U.L.Rev 650
This article focuses on the approaches of Asian Pacific States to third party dispute resolution.
Masahiko Asada. "Arms control law in crisis? A study of the North Korean Nuclear Issue." Journal of Conflict & Security Law (2004)
This article comprises a detailed analysis of the status of North Kore under the Nuclear Non-Proliferation Treaty (NPT).
Eric Yong Joong Lee. "The complete denuclearization of the Korean Peninsula: Some considerations under International Law." Chinese Journal of International Law (2010)
This article discusses the possibility of setting up a nuclear weapon-free zone in the Korean peninsula under international law.
Ramses Amer and Keyun Zou. Conflict management and dispute settlement in East Asia. Ashgate, 2011
This volume is set in the wider context of East Asia. It takes an interdisciplinary approach to various situations of conflict in the region. The work has been well received as an important contribution to the subject of dispute resolution in the region.
Julian Ku. "China and the future of International Adjudication" Maryland Journal of International Law Vol. 27 Issue. 1 (2012).
A comprehensive focus on contemporary Chinese practice towards international adjudication.
Brendon. Howe & Boris Kondoch. The legality & legitimacy of the use of force in Northeast Asia. Brill (2013)
This work comprises of various contributions that focus on different aspects of use of force under international law in the context of NEA --- for example Chinese conceptions of just war, the non-use of force option in Japan’s foreign policy and the legality of the use of force to disarm North Korea.
Morse Tan. North Korea, International Law and the Dual Crises: Narrative and Constructive Engagement. Routledge, 2015.
This book focuses on North Korea’s actions and inactions with regard to international security and human rights in historical, political and legal perspectives. Section One is a focus on the North Korean Regime followed by a focus on the legality under International Law of its actions along with a discourse on constructive resolutions. An important International Law contribution to the literature in the field.
Matthias Vanhullebusch. “Regime Change, the Security Council and China”. Chinese Journal of International Law, 2015.
This article focuses on the relationship between the UN Security Council and China in the light of China's rise in international relations.
朱文奇. “东京审判与追究日本军政要人刑事责任”. 国际法研究, 2016. (Zhu Wenqi. “The Tokyo Trial and the Superior Responsibility Applying to the Japanese Military and Political Leaders”. Chinese Review of International Law, 2016.)
This article is concerned with the notion of ‘Superior Responsibility’ considered in the Tokyo Trial and its contribution to the development of international criminal law.
9. Conclusion
It is of course easy to be critical of the legal literature and sources in the region. Equally easy it is to proffer advice on approaches to research. Nevertheless, there has to be intellectual honesty and rigor in research and scholarship as much as candour in advice.
International Law scholars should not, nor have to, work under the shadows of actual or potential government pressure or indeed prospects of governmental consultancies. In the same vein, cultural deference to colleagues and seniors should not inhibit open discourse in scholarship. Future generations have to be inculcated with critical faculties in their research. Moreover, there has to be objective and non-nation interest driven research in International Law. Policy makers need objective research to make the right decisions. One manner of shaking insularity is to promote inter-disciplinary and theoretical approaches to research in international law. Another step is to cultivate diversity of scholarship in International Law within NEA. And still another is to promote dialogue amongst the International Law community within NEA respectively.
The landscape of the existing legal literature in the NEA is fairly practically oriented and relatively in abundance in terms of national preoccupations. Thus, in contrast there is a dearth of legal focus from the region on issues of International Law that are of universal concern. In the same vein because the primary driver for research is national State interest the approach to International Law research is non-theoretical and can be nationally oriented.
These generalizations can in varying degrees be equally applicable in many other regions. However, it does need to be observed that the amount and quality of research in the region is on an upwards trajectory. Certainly, there is energy in research if the frequency of conferences is part of the indicia for judging quality of research.