Volume 11 No. 1 (January 2002)
THE CRIMINAL LAW OF THE PEOPLE'S REPUBLIC OF CHINA (1997): REAL
CHANGE OR RHETORIC?
Ian Dobinson
Abstract: The 1997 Criminal Law supposedly heralds the
beginning of a new era in Chinese jurisprudence and criminal justice.
There are doubts, however, over the degree to which the revisions are
substantial or symbolic. On the one hand, it can be argued that by
making the criminal justice system more rational and predictable,
China is moving much closer to the “rule of law” as that term is
understood in the West. On the other, it can be argued that the
changes are mainly illusory and that, underneath the veneer of
rhetoric, China's criminal justice system remains a crude and
arbitrary tool of state control over enemies both real and imagined.
This Article considers the competing viewpoints and argues that the
latter comes closer to the truth. Of course, even a shift in rhetoric
can have important consequences and the author acknowledges that the
true import of the 1997 Criminal Law will only be known with the
passage of time.
THE 1951 SAN FRANSISCO PEACE TREATY WITH JAPAN AND THE
TERRITORIAL DISPUTES IN EAST ASIA
Seokwoo Lee
Abstract: There are currently three territorial disputes
over islands in East Asia in which Japan is a disputant: against
Russia, over the Kurile Islands; against China and Taiwan, over the
Senkaku Islands; and against Korea, over the Liancourt Rocks. Although
all the claimants marshal support for their cases from historical
sources, it cannot be denied that much of the uncertainty surrounding
the territorial demarcation is a by-product of immediate post-World
War II boundary decisions and territorial dispositions. The final
disposition of territories in East Asia at the end of World War II was
effected by the San Francisco Peace Treaty of 1951. The San Francisco
Peace Treaty failed to define the “Kurile Islands,” and further to
specify the entity in whose favor Japan had renounced sovereignty over
the disputed islands. Additionally, specific mention of the Senkaku
Islands and the Liancourt Rocks did not appear in the territorial
clauses of the San Francisco Peace Treaty. Accordingly, there is a
need for a careful examination of how a series of drafts of the Treaty
defined the terms of the San Francisco Peace Treaty regarding these
disputed islands in East Asia. The territorial clause of the San
Francisco Peace Treaty regarding the Kurile Islands can be interpreted
as follows: first, the Soviet Union is the only recipient of the
Kurile Islands envisaged by the Allied Powers; second, there were no
agreed definitions of the “Kurile Islands” among the Allied
Powers; and third, there are strong indications that the Allied Powers
preferred not to resolve the matter of the ultimate disposition of the
Kurile Islands in the San Francisco Peace Treaty. The Senkaku Islands
were not included as either Chinese and Taiwanese or Japanese
territory by the drafters of the San Francisco Peace Treaty, and
Article 3 of the San Francisco Peace Treaty did not, to the point of
specificity, define the territories that were placed within the area
of the United Nations trusteeship with the United States as the sole
administering authority. The territorial clause on the Liancourt Rocks
could indicate that the San Francisco Peace Treaty assigns the
Liancourt Rocks to Japan. However, due to the contradictory nature of
the various drafts of the treaty, Korea may still be free to establish
that the “Korea” renounced in the San Francisco Peace Treaty
included the Liancourt Rocks.
JUDICIAL REFORM AND THE STATE OF JAPAN'S ATTORNEY SYSTEM: A
DISCUSSION OF ATTORNEY REFORM ISSUES AND THE FUTURE OF THE JUDICIARY,
PART II
Written by Kohei Nakabô,
Translated by Yohei Suda
Based on the Judicial Reform Council's article, “Points at Issue
in Judicial Reform,” this paper analyzes basic issues regarding the
current status of the Japanese attorney system and areas to be
addressed in judicial reform.
PATENT PROTECTION FOR PHARMACEUTICALS:
A COMPARATIVE STUDY OF THE LAW IN THE UNITED STATES AND CANADA
Mary Atkinson
Abstract: A fundamental purpose of patent law is to encourage
the development of new inventions by granting to the inventor
exclusivity in the marketplace for a limited period of time. Patent
law in the area of pharmaceuticals is complicated by the
responsibility of governments not only to encourage research and
development of new drugs, but also to assure that new drugs are widely
available and affordable, as well as safe and effective. Governments,
influenced by market and political philosophies, design patent laws
and drug regulatory schemes to meet these responsibilities. The United
States has a well-developed pharmaceutical industry and private-payer
health care, and thus has very strong patent protection for
pharmaceuticals. Canada, on the other hand, has a relatively small
pharmaceutical industry and government-payer health care. Canada,
therefore, weakened the patent rights of pioneer drug companies by
instituting compulsory licensing and price controls on brand-name
drugs. Despite these fundamental differences, the North American Free
Trade Agreement and the General Agreement on Tariffs and Trade have
brought near uniformity to the patent and regulatory schemes of both
countries. Pioneer drugs have made great strides in increasing
longevity and improving quality of life. The challenge is to make
these new drugs affordable. Governments need to find creative
solutions to this challenge while maintaining strong patent protection
for pharmaceuticals so as to ensure the continued development of new
medicines. Given the political and economic realities in both the
United States and Canada, each government has fulfilled its obligation
to the public to develop a reasonably balanced system of patent
protection for pharmaceuticals.
JAPAN'S IMPLEMENTATION OF THE OECD ANTI-BRIBERY CONVENTION:
WEAKER AND LESS EFFECTIVE THAN THE U.S. FOREIGN CORRUPT PRACTICES ACT
David L. Heifetz
Abstract: In November 1997, the Organization for Economic
Cooperation and Development (“OECD”) adopted the Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions (“OECD Convention”). The preamble of the
OECD Convention states that “bribery is a widespread phenomenon in
international business transactions, . . . which raises serious moral
and political concerns, undermines good governance and economic
development, and distorts international competitive conditions.” All
member countries signed the OECD Convention and thus were committed to
implement it via the passage of domestic legislation by December 31,
1999. The Japanese promulgated new anti-bribery provisions to satisfy
the mandates of the OECD Convention. However, when compared to the
U.S. Foreign Corrupt Practices Act, the new Japanese provisions
continue to put U.S. companies at a disadvantage when competing with
Japanese companies in foreign markets. Additionally, the Japanese
legislative efforts to date are not in keeping with the spirit of the
OECD Convention and are probably insufficient to meet the Convention's
standards.
LAND POLICY AND ADAT LAW IN INDONESIA'S FORESTS
Kallie Szczepanski
Abstract: The Indonesian government's land laws and policies
lead to displacement of and hardship for the indigenous peoples of the
archipelago. The Basic Agrarian Law, Basic Forestry Law, and Spatial
Planning Law all allow for expropriation of indigenous lands formerly
governed under the adat legal system. In addition, the central
government's policy of transmigration—the shifting of people from
the populous Inner Islands of Java, Bali, and Madura to the Outer
Islands—only increases the economic and cultural pressure on
indigenous peoples of the Outer Islands. The hopelessness and anger
that result from the marginalization of traditional adat
societies fuel violent ethnic conflicts, in which tribes such as the
Dayak of Kalimantan seek to drive out the transmigrants and the timber
and mining interests that have acquired rights to the Dayak's
traditional lands. Thousands of people have been killed or displaced
as a result of these clashes. The government of Indonesia needs to
reform its land laws and honor adat principles of land use,
before further violence erupts. The ultimate stake in this bloody game
is the very survival of the indigenous peoples' way of life.
CHINA'S DIRECT MARKETING BAN: A CASE STUDY OF CHINA'S RESPONSE
TO CAPITAL-BASED SOCIAL NETWORKS
Michele A. Wong
Abstract: China's State Administration for Industry and
Commerce issued a circular on April 18, 1998 banning all forms of
multi-level direct marketing, citing concerns with social stability
and economic order. While the direct marketing ban was ultimately
implemented in such a way as to allow those who engaged in network
marketing to transition to retail sales, alleviating some of the
violence of the protest to the ban, opposition to the ban has
continued both domestically and abroad. Direct marketing organizations
create tight-knit, extensive networks of individuals with similar
economic interests. By assembling around a common economic interest,
the group may also emerge as a self-motivated political force,
particularly when personal economic interests are tested. This latent
risk of political activism poses a threat to the authoritarian regime
in China. The state's response in issuing a blanket ban of all direct
marketing activity illustrates its apprehension of private social and
economic networks, and its inability and reluctance to seek regulatory
alternatives. As China's economic system continues to evolve under the
post-1978 market reform policy, the administration will need to adapt
its political approach in order to better understand and respond to
the demands of a population with expanding private interests, as well
as a growing desire to pursue and protect those interests.
