[KS] International Court of Justice - Ad Hoc Judges
paulmshepherd at hotmail.com
Mon Jul 21 07:47:54 EDT 2008
It is false that there would be no Korean judge were a case to be brought before the ICJ. There is an important provision of the ICJ Statute that you ought to be aware of before dismissing it lightly as a forum for any dispute. From Wikipedia:
"Ad hoc judges
Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases before the Court. This system allows any party to a contentious case to nominate a judge of their choice (usually of their nationality), if a judge of their nationality is not already on the bench. Ad hoc judges participate fully in the case and the deliberations, along with the permanent bench. Thus, it is possible that as many as seventeen judges may sit on one case.
This system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases to the Court. For example, if a state knows it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, that state may be more willing to submit to the Court's jurisdiction. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence. Ad hoc judges usually (but not always) vote in favour of the state that appointed them and thus cancel each other out."
Some relatively uninformed people might say that judges on the ICJ are not impartial, but it is not proven that they exert an improper influence on each other. Especially when in the case of the ICJ there can be up to 17 judges! I recommend scholars to read about some of these fascinating international judges, "fascinating" because they have typically been judges, diplomats, scholars of international renown in their home countries. Even ad hoc judges typically have extremely great reputations in the international legal community.
The bigger problem of course is the problem of the overlap between the jurisdiction of the ICJ and ITLOS (International Tribunal of the Law of the Sea). This international court, which focuses on the International Law of the Sea exclusively, also allows for ad hoc judges, from memory.
The ICJ has a long history of dealing with boundary disputes (including maritime), although there may have been concerns about the excessive legalism of some earlier decisions. But these days the goal would be "equitable boundary delimitation" and while possession of any island/rock may influence a decision, it would probably not be a decisive one. I am not aware of whether ITLOS has handled a maritime dispute; interested persons could check its website.
The more important issue is whether both sides to a dispute would accept the jurisdiction of the court, and to what extent they might dispute its jurisdiction. Unfortunately, too many ICJ and ITLOS decisions have not made it beyond the jurisdictional stage.
In the interests of international peace and security, the ICJ or ITLOS are forums not to be dismissed lightly.
"All truths are not meant for all ears; not all lies can be recognized as such by pious spirits."===============================================Paul ShepherdPh.D CandidateGraduate School of The College of Law, Seoul National University**NEW** Mobile: (ROK) 010-7668-7675===============================================
From: kimrenau at gwu.eduTo: koreanstudies at koreaweb.wsCC: koreanstudies at koreaweb.wsDate: Sun, 20 Jul 2008 22:28:34 -0400Subject: Re: [KS] Library of Congress Korean Controversy
Hello Marko, Scott, and others again,
I once swore I would never get involved in this kind of discussion again, but I am compelled to respond. Hopefully this will be my last posting on the issue.
Yes, of course, language is always to be blamed–“shocked,” “arbitrary,” “spam,” “non-issue,” “racism” and “nationalism,” “divorce settlement,” … And there are a lot of non-native speakers of English among us, including yours truly. Even when it is your own language, it is easy to misfire words that really were not meant, especially in an e-mail communication when people are writing like they are talking and do not want to spend too much time composing a neat and coherent text. I appreciate all the efforts to clarify their real intentions, and I thank and respect that.
And yet, two words may be of the essence: “neutral” and “non-interference.” These are touchy words and should be used with care. When the Japanese textbooks justify or even glorify their shameful past, and they dismiss, minimize, belittle or blame their victims for what they did, at least the “neutral” people should understand the truth. The problem is, the written record is often taken as truth, and unless someone protests its validity, how can it be prevented from being taken as a common knowledge and truthful fact? Even worse, the young Japanese would in fact be shortchanged and grow up without the advantage of learning from their past and acting like civilized people in the international arena as far as that part of their history is concerned. The same symbolism holds for the Yasukuni visit by the heads of the Japanese state.
Your (Marko’s) “wishful” thinking that the island somehow should belong to both countries shows you are already taking sides, and your assertion that Korean historians have not made an “air-tight” case most probably is shared by many “neutral” parties of the world. The reason why Koreans don’t go to the international court, in my opinion, is exactly because of their suspicion that they would not be fairly judged there, or at least, indeed because they feel they are not prepared to defend themselves legally. And how many Korean judges are in the international tribunal, and how many Japanese?
>From my limited knowledge of the history of the controversy surrounding this island, it looks like an unfortunate consequence, perhaps totally artificially made, of a series of coincidences, bad judgments, sloppy handling of the situation, as well as the very organized, I must say impressive, effort by the Japanese in recent history. As Koreans often say themselves, they have only themselves to blame for their past weakness, incompetence, passiveness, or even indifference in thinking and acting for their own interests. However, it does not mean that Koreans don’t have a case. On the contrary--there is a collection of pretty good documentation, in addition to the simple fact that Tokto is closer to Korean territorial boundary than to that of Japan geographically, that it belongs to Korea. For this we don’t even need to go back to the time before the Japanese took the island at the time of their colonization of Korea.
I think all those who are interested in the topic should visit this California-based site containing “Selected Research on Dokdo Island” (http://www.geocities.com/mlovmo/). It might be useful to revisit in that context the contention of “non-interference” and “neutrality” by learning about “The United States' Involvement with Dokdo Island (Liancourt Rocks): A Timeline of the Occupation and Korean War Era (http://www.geocities.com/mlovmo/page9.html),” which is one of the subsections of the site.
As for a clear example of Tokto’s territorial affiliation, you may look at this 1936 map by the Japanese Army General Staff Office (http://www.geocities.com/mlovmo/page27.html) among many other things given there:
“This map shows Ullungdo and its appended island, Dokdo. Published by the Japanese Army General Staff Office in March 1936, it places Dokdo and Ullungdo in the region of Korea. It is highly likely that SCAP GHQ used maps like these when they decided to exclude Dokdo from the Japanese territorial sphere. These maps are a reminder of the commonly accepted view of Dokdo´s sovereignty (in both Korea and Japan) prior to the late 1940s and early 1950s.”
I, too, have been saying that Koreans appear insecure when they show so much emotion whenever the Tokto issue is reopened and that they should act like true, legitimate owners. However, I am more sympathetic to them than just judgmental, compared to the other “neutral” third party, I guess. Suppose someone took your purse away at gunpoint, and when you finally got it back, the robber says it is his/hers because at one point he/she possessed it having stolen it “fair and square.” In the meantime, he or she might have even bought dresses and shoes to match it, and a lot of witnesses saw him/her carrying it. He may even have insured it, clearly showing who the owner of the purse is. This sort of scenario has happened in many parts of the world in human history, where the natives had collective ownership of the land, and the chiefs either gave it away for a penny or gave it up at knife points. In such a case, who would have more legal clout? Who would be screaming and who wo uld act “secure” and calm?
Unfortunately for Marko and many others, this case is not a matter of dividing common property at an "amicable" divorce court, but rather one of child custody, if ever the child belonged to both parents—you just can’t cut a child into half and hope both parties will be happy, merely because the share was fare. What we need here is the Judgment of Solomon!
Going back to what really should be a “non-issue,” I want to add that I, too, love and respect Japan, Japanese people and culture. Linguistically, culturally, and perhaps even racially I find them closer to Koreans than any others. In fact some of my best friends, some of whom go back to my college days, are Japanese. And I sincerely believe that the two countries would be happier and more prosperous by getting along with each other. However, this is not a case of blind love. I am not going to say everything they do is perfect or right just because I love them. At the same time, if I experience some problem with the Japanese involving a particular issue, I am not condemning the nation in everything else, too. So, I would think even my Japanese friends would not take my taking “sides” in this case as a sign of betrayal. I hope yours won’t, either, if ever you should recognize that Tokto indeed belongs to Korea.
Young-Key Kim-Renaud, Chair Department of East Asian Languages and Literatures Professor of Korean Language and Culture and International Affairs The George Washington University 801 22nd Street, N.W. (Academic Center, Rome Hall 469) Washington, DC 20052 E-mail: kimrenau at gwu.edu http://home.gwu.edu/~kimrenau, http://myprofile.cos.com/kimreny76 Tel: (O) 202-994-7107 Fax: (O) 202-994-1512
Marko Rajakko <marko.rajakko at gmail.com>
Sunday, July 20, 2008 2:09 pm
koreanstudies at koreaweb.ws
Re: [KS] Library of Congress Korean Controversy
Dear list members,As for my previous message, my decision to use "non-issue" may have been misguided or slightly misunderstood. I was only trying to relay my own personal opinion about this whole matter. After all, English is only my third language. My apologies if I unintentionally offended anyone. Having said all that, Dokdo-Takeshima question is a very important issue to some people and to the South Korean government. I must say that personally I do not see anything wrong with the suggested name change. Liancourt Rocks is neutral term and I suppose, rather widely used name for the islets. Besides, we have to remember that no matter what we call it, in Korean maps it will still be Dokdo and in Japanese maps Takeshima.What I find interesting is that the Korean side seems to be a lot more vociferous than the Japanese side. Why is that? Should not it be the other way? Korea has held the islets since 1953, has people living there, has stationed a group of police officers on the islets, and if I am not mistaken, provides cell phone and Internet services for visitors etc. After all this and it still seems to me that Korea is quite insecure of its possession.The latest news tell us that Korea will replace the police officers stationed on the islets with marines. ROK will also send two civil servants there as well. All this because Japan claims? I do not think that ROK has any reason to risk escalating this dispute any further. Dokdo is and has been in Korean hands, by might and/or by right, for the last 55 years. I do not see that Japan will try to contest this issue with legal or military action anytime soon. Mr. Burgeson wrote:
[...] South Koreans should make sure that their historians have made an air-tight case for their claim to Dokto, because from what I have read so far, they really haven't.
I am with Mr. Burgeson in this matter. I do not claim to be an expert on this issue, but from what I see the Japanese claim has more merit than the Korean one. Furthermore, emotional demonstrations, burning of Japanese flags, acts of violence against animals and self-mutilation (cutting off fingers, self-immolation, trying to commit harakiri) do not solve anything. These acts only give Korea and Koreans a bad name abroad.As for how to solve this problem, I do have one idea. (Well, actually two, if Korea and Japan could agree to divide the islets between themselves.) I hope that both parties would agree to take this issue into the International Court or UN before something irrevocable happens. Naturally both governments would have to follow the court's ruling. Maybe a joint custody could come into question like in some divorce cases? At least it might bring these two neighbors closer and help to heal some other issues of the past. Is this too wishful thinking?Marko Rajakko, Finland
"J.Scott Burgeson" <jsburgeson at yahoo.com>
Sunday, July 20, 2008 5:19 am
koreanstudies at koreaweb.ws
Re: [KS] Library of Congress Korean Controversy
I regret if I offended anyone by my usage of the word "spam" in reference to Hana Kim's email to the List, so I herewith retract that term in the hope that dicusssion can focus instead on the far more important historical issues concerning Dokto-Takeshima.I do, however, object to the insinuation that I merely looked at someone's surname and that was enough for me to decide to call them "nationalistic." I've been a member of this List for many years and rarely if ever have I previously made such a charge, and certainly never in such a vulgar, shallow manner. To be clear: It is official US policy and has been for decades to be neutral in the Dokdo-Takeshima territorial dispute; thus, calling the adoption of a neutral name for those islets "arbitary" is certainly nationalistic because it suggests that official US policy itself is somehow illegitimate, i.e., by failing to fall in line with South Korean claims to the islets.Perhaps my previous argument was overly academic in the sense that in truth, it does not bother me too much if South Korean interest groups want to lobby in the US for Dokto. What does irritate me greatly, however, is the insistance by South Korean nationalists that Japan has no right to state its own position on Dokdo-Takeshima in its own textbooks. Certainly that is an internal matter -- a matter of one nation's "sovereignty" -- and it is for Japan to decide if it is appropriate to do so or not. So let's just say that I'll agree that Hana Kim is welcome in my book to lobby for Dokdo all she wants, in the US or anywhere else, if she in turn is willing to recognize Japan's right to teach its own views on Dokto in its own schools. Deal?Perhaps I am a little touchy on this subject because just several hundred meters from my home here in Seoul, South Korean nationalists are butchering pheasants in front of the Japanese Embassy, and as a fan of Japan, Japanese people and Japanese culture, this offends me very much.Rather than focusing so much on the propaganda front, South Koreans should make sure that their historians have made an air-tight case for their claim to Dokto, because from what I have read so far, they really haven't.--Scott
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