Volume 10 No. 2 (March 2001)

ARTICLES

GENDER EQUALITY AND WOMEN'S ISSUES IN VIETNAM: THE VIETNAMESE WOMAN-WARRIOR AND POET, Wendy N. Duong

AN OUTSIDER'S VIEW ON CHINA'S INSIDER TRADING LAW, Charles Zhen Qu

 

TRANSLATIONS

SELECT PROVISIONS OF THE COMMERCIAL MARITIME CODE OF THE RUSSIAN FEDERATION,, Translated by William Honea

INTERNATIONAL JUDICIAL PRACTICE AND THE WRITTEN FORM REQUIREMENT FOR INTERNATIONAL ARBITRATION AGREEMENTS, Written and translated by Jing Wang

COMMENTS

FALUN GONG: AN ANALYSIS OF CHINA'S NATIONAL SECURITY CONCERNS, Kelly A. Thomas

CAMBODIAN NATIONALITY LAW AND THE REPATRIATION OF CONVICTED ALIENS UNDER THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT, Jana M. Seng

A PRECAUTIONARY TALE: THE INTERNATIONAL TRADE IMPLICATIONS OF REGULATING GENETICALLY MODIFIED FOODS IN AUSTRALIA AND NEW ZEALAND, Denise M. Lietz

THE ROLE OF POSITIVE COMITY IN U.S. ANTITRUST ENFORCEMENT AGAINST JAPANESE FIRMS: A MIXED REVIEW, Matthew Cooper

Gender Equality and Women's Issues in Vietnam: The Vietnamese Woman—Warrior and Poet

Wendy N. Duong

Abstract: Exploration of women's issues in Vietnam strengthens the emerging voice of the “exotic other female” in contemporary international feminist discourse. Any women's movement in Vietnam today must be cast as the revitalization of the Vietnamese woman's collective cultural identity, rather than as a Western imported feminist doctrine. The Vietnamese woman's collective cultural identity is based on the history and cultural folklores of Vietnam, including expressions of feminist ideas in law and literature, and a long history of warfare and collective sufferings, wherein women have been seen as martyrs, national treasures, and laborers in war and in peace.

The advocacy of gender equality in Vietnam today is limited by eight “risk factors.” First, Vietnam's strong matriarchal heritage that persisted through its early history has at times led to the disingenuous proposition that Vietnam has no need for a feminist movement. Second, Vietnam's repetitive, prolonged war and poverty have together overshadowed gender issues. Third, women's movements in Vietnam have not evolved into a doctrine with a structured basis that is independent from nationalism, socialism, or literary movements. Fourth, gender equality in Vietnam has become entangled in what this Article describes as the “fallacy of a trio,” in which gender equality becomes synonymous with nationalism and socialism. Fifth, the rule of law in Vietnam has traditionally been considered secondary to customs derived from the oppressive values of Vietnamese Confucian society and the autonomy of the Vietnamese agricultural villages. Sixth, women's rights advocacy has been caught up in the “universality versus cultural relativism” discussion, further complicated by the question of whether there should be “Asian-styled gender rights” in Vietnam. Seventh, Vietnam, despite its age, is a new nation with a wide variety of philosophical bases, legal traditions, and paradoxical values. Finally, the single-party political system of modern Vietnam renders any feminist movement susceptible to Party politics.

The limitations on advocacy for gender equality are illustrated by the shortcomings of Vietnam's Year 2000 National Action Plan, which attempted to address women's issues in the aftermath of the United Nations Fourth World Conference on Women held in Bejing in 1995. While the reassertion of cultural identity can effectively empower Vietnamese women, the feminist advocate must approach cultural identity with caution in order to avoid the semantic traps of euphemism, empty ethnocentricsm, and unhealthy preoccupation with the past that can impede progress for the future.

 

 

AN OUTSIDER'S VIEW ON CHINA'S INSIDER TRADING LAW

Charles Zhen Qu

Abstract: China's insider trading law can be found in the country's first unified securities industry law, Securities Law of the People's Republic of China, which came into force on July 1, 1999. The provisions of this law relating to insider trading, however, do not seem to help achieve the legislative purpose of the Securities Law, namely, to protect the interest of investors and promote the development of a socialist economy. The inadequacy of the current regime lies in the overly narrow definitions of “insider” and “inside information,” the lack of workability of civil liability provisions, and the failure of China's Securities Regulatory Commission to use its interpretive powers. This Article argues that these problems can be solved by adopting Australia's approach to insider trading regulation, which is based upon a person's ability to access non-public material information.

 

 

 

SELECT PROVISIONS OF THE COMMERCIAL MARITIME CODE OF THE RUSSIAN FEDERATION

Translated by William Honea

Translator's Introduction:        The Commercial Maritime Code of the Russian Federation (RMC) entered into force on April 30, 1999. The RMC is a far-reaching and progressive document that seeks to provide a framework for all commercial maritime activities within Russia. The RMC uses the language of the 1982 United Nations Convention on the Law of the Sea, and implements treaties and agreements including those that cover oil pollution, vessel arrest, and competency standards for seafarers. It occupies the field of Russian maritime law, specifically replacing a long list of inherited Soviet laws. It regulates the movement of goods at sea, many common aspects of maritime commerce, and it spells out in detail the process for securing maritime creditor's rights. It strongly recognizes property rights in vessels, but contains whimsical reminders of a socialist past. Like omnibus pieces of U.S. legislation, it provides grants of regulatory authority to agencies. At other junctures, it relies on follow-up legislation to flesh out its provisions.

This translation is intended for U.S. readers who wish to acquaint themselves with some of the basic provisions of the RMC. As such, it is not translated in its entirety here. However, its general provisions and those provisions governing the regulation of vessel flag and registry have been translated and are printed below in full text. In addition, this translation provides a list of the remaining RMC provisions governing specific aspects of maritime law.

 

 

INTERNATIONAL JUDICIAL PRACTICE AND THE WRITTEN FORM REQUIREMENT FOR INTERNATIONAL ARBITRATION AGREEMENTS

Written and translated by Jing Wang

This Article was first published in 1999 Supplement to He Bei Faxue [HE Bei LAW SCIENCE], one of the most prestigious law journals in China. See Jing Wang, Ping Guoji Sifa Shijian Dui Guoji Shangshizhongcai Xieyi Xingshi De Wudu [On International Judicial Practice and the Written Form Requirement for International Arbitration Agreements], He Bei Faxue [He Bei L. Science], Supp. 1999, at 206-08. This Article has been translated and reprinted with the permission of He Bei Faxue [He Bei Law Science].

 

 

FALUN GONG: AN ANALYSIS OF CHINA'S NATIONAL SECURITY CONCERNS

Kelly A. Thomas

Abstract: The Chinese government's brutal crackdown on the Falun Gong spiritual movement stands in marked contrast to its recent acknowledgement of the need to improve its human rights record and repeated avowals to take the legal steps necessary to conform with international human rights treaties. China's leadership has attempted to justify the crackdown, citing both historical reasons and national security concerns. Analysis of China's history demonstrates that repression of anti-government groups has only hardened their resistance. Similarly, the campaign against Falun Gong has failed to stop protests staged by the group's followers. In fact, Falun Gong's expressions of dissent have become increasingly defiant. The Chinese government's policy of repression undermines true national security. Lifting the ban will help the Chinese government achieve its stated goals of protecting both China's national security and the human rights of its citizens.

 

CAMBODIAN NATIONALITY LAW AND THE REPATRIATION OF CONVICTED ALIENS UNDER THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT

Jana M. Seng

Abstract: Currently the U.S. Immigration and Naturalization Service (“INS”) is indefinitely detaining thousands of aliens who have already completed their criminal sentences. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) allows the INS to detain these convicted aliens while initiating a removal proceeding for deportation to their native country. Absent from the IIRIRA is a provision addressing whether the INS may indefinitely detain convicted aliens who cannot be deported because the United States has no repatriation agreement with the alien's native country. Justification for the indefinite detention rests on the assumption that the United States will secure a repatriation agreement in the near future. However, an analysis of Cambodia's methods for determining citizenship and the lack of uniformity in international “proof of nationality” law demonstrates that a repatriation agreement is not likely to occur. For this reason, the U.S. Supreme Court should preclude the INS' practice of indefinite detention and require an immediate release of indefinite detainees after they have served their sentence where the native country has no repatriation agreement with the United States and has not shown a willingness to accept the detainees' return.

 

 

A PRECAUTIONARY TALE: THE INTERNATIONAL TRADE IMPLICATIONS OF REGULATING GENETICALLY MODIFIED FOODS IN AUSTRALIA AND NEW ZEALAND

Denise M. Lietz

Abstract: The current international debate surrounding the development of genetically modified (“GM”) foods centers around the selection of appropriate regulations to control the new technology's potential food safety risks. Australia and New Zealand have used a precautionary approach to develop their regulatory system for GM foods—a system that will soon include a stringent labeling requirement for all foods containing GM ingredients. The United States, on the other hand, has rejected the precautionary approach to regulating GM foods and does not require mandatory labeling of most GM foods. These differing national regulations may lead to restrictions on the importation of many U.S. agricultural products to Australia and New Zealand. Rather than pursuing a trade dispute settlement through the World Trade Organization, the United States should drop its opposition to mandatory labeling and the use of precaution in food safety measures, and support the Codex Alimentarius Commission in its effort to develop harmonized international standards for GM foods.

 

THE ROLE OF POSITIVE COMITY IN U.S. ANTITRUST ENFORCEMENT AGAINST JAPANESE FIRMS: A MIXED REVIEW

Matthew Cooper

Abstract: On October 7, 1999, the United States and Japan signed an antitrust cooperation agreement. The agreement contains provisions for notification and consultation, coordination and cooperation, and positive comity. These provisions address Japanese sovereignty concerns arising from the unilateral application of U.S. antitrust laws to the conduct of Japanese firms that occurs outside the territorial borders of the United States. The agreement also addresses U.S. perceptions that Japanese markets are closed to American businesses because it offers tools, other than unilateral antitrust enforcement, to open Japanese markets to American businesses. However, the positive comity provision does not proscribe unilateral antitrust enforcement. This Comment analyzes the strengths and weaknesses of the positive comity provision and recommends several improvements.