Volume 9, Number 2 (May 2000)

ARTICLE

THE CONSTITUTIONAL CRISIS IN HONG KONG -- IS IT OVER?  Lin Feng

 

COMMENTS

A SILENT EMERGENCY PERSISTS:  THE LIMITED EFFICACY OF U.S. INVESTMENT SANCTIONS ON BURMA, Anna E. Johansson

 

BUILDING THE KOREAN FILM INDUSTRY'S COMPETITIVENESS:  ABOLISH THE SCREEN QUOTA AND SUBSIDIZE THE FILM INDUSTRY, Carolyn Hyun-Kyung Kim

 

PUNISHING AND PREVENTING POLLUTION IN JAPAN:  IS AMERICAN-STYLE CRIMINAL ENFORCEMENT THE SOLUTION? Robert G. Kondrat

JAPAN'S LAWS ON DUAL NATIONALITY IN THE CONTEXT OF A GLOBALIZED WORLD, Mie Murazumi

THE U.S. PUSH FOR WORLDWIDE PATENT PROTECTION FOR DRUGS MEETS THE AIDS CRISIS IN THAILAND:  A DEVASTATING COLLISION, Rosemary Sweeney

 

THE WTO PANEL DECISION ON AUSTRALIA'S SALMON IMPORT GUIDELINES:  EVIDENCE THAT THE SPS AGREEMENT CAN EFFECTIVELY PROTECT HUMAN HEALTH INTERESTS, Matthew D. Taylor

 

THE CONSTITUTIONAL CRISIS IN HONG KONG -- IS IT OVER?  

Lin Feng

     Abstract: The judgment of the Hong Kong Court of Final Appeal (“CFA”) in the right of abode case has created several constitutional issues, three of which will be addressed in this paper.  They are: (1) whether the CFA has the authority to review Chinese legislation; (2) whether the National People’s Congress Standing Committee (“NPCSC”) should interpret or amend the Basic Law; and (3) whether an original legislative intent approach or a purposive approach should be adopted for the interpretation of the Basic Law.  Prompt resolution of these issues is necessary to resolve constitutional uncertainty in Hong Kong.  Successful resolution of these issues may require both the NPCSC and the CFA to adopt their own interpretive approaches and exercise their own constitutional authority in strict compliance with the procedures of the Basic Law.  Adoption of this unique constitutional mechanism would preserve Hong Kong’s common law system while allowing the concept of “one country, two systems” to be implemented.

 

A SILENT EMERGENCY PERSISTS:  THE LIMITED EFFICACY OF U.S. INVESTMENT SANCTIONS ON BURMA

Anna E. Johansson

     Abstract:                For the past three decades, the repressive military junta that has ruled Burma has engaged in torture, extra-judicial killings, compulsory labor, and arbitrary arrests and detentions.  Economic growth and human development in Burma have stagnated.  In response to human rights abuses and uninhibited drug production and trafficking, the United States imposed investment sanctions on Burma in 1997.  However, Burma’s regional alliances and illicit profits from drugs have filled any vacuum left by withdrawal of U.S. investments and have neutralized the effect of the sanctions.  Therefore, the United States needs to rethink its current sanctions scheme.  The United States should consider a policy of constructive engagement to promote change, sustainable self-help, and growth in Burma.  Further, the United States should promote international diplomatic involvement and should also support the establishment of a national human rights commission in Burma.  Alternatively, if the United States believes that sanctions are the best method of promoting positive change in Burma, it should work with a multilateral organization such as the World Trade Organization or the Association of Southeast Asian Nations on a multilateral sanctions scheme.

BUILDING THE KOREAN FILM INDUSTRY'S COMPETITIVENESS:  ABOLISH THE SCREEN QUOTA AND SUBSIDIZE THE FILM INDUSTRY

Carolyn Hyun-Kyung Kim

     Abstract:     Under Korean law, local theaters in Korea must show Korean films for at least 146 days each year.  In 1998, this screen quota became the subject of heated debate between the United States and the Korean film industry when the United States demanded that Korea abolish it.  The United States believes the quota violates free trade principles, while the Korean film industry argues that cultural products such as films cannot be equated with other commercial commodities.  Cultural identities must be protected because a diversified global culture benefits all.  Domestic film industries should be protected because films constitute a vehicle for transmitting cultural values.  One way to promote Korean culture is to encourage the production of films that portray Korean culture and to ensure that these films are commercially viable.  Korea’s screen quota does not ensure that Korean films will depict Korean culture; instead, it merely requires films made in Korea to be shown in theatres.  The screen quota is also problematic because it encourages complacency on the part of the Korean film industry toward domestic and global competitors.  Government subsidies tied to film quality and cultural content, on the other hand, would promote Korean culture and ensure that Korean films are commercially viable.  In Europe, subsidies have proven to be effective in stimulating domestic film industries to produce quality films that are commercially viable.  Through subsidies, the Korean government can ensure that Korean culture will be preserved and promoted through film.

PUNISHING AND PREVENTING POLLUTION IN JAPAN:  IS AMERICAN-STYLE CRIMINAL ENFORCEMENT THE SOLUTION?

Robert G. Kondrat

     Abstract:   Both Japan and the United States face the ongoing threat of intentional and preventable pollution.  From 1970 until the mid-1980s, Japan utilized its environmental crime laws to punish and prevent intentional and preventable acts of pollution.  After this period, however, the number of environmental crime arrests and prosecutions in Japan declined.  In contrast, since the 1980s, the United States has continued to expand the number of prosecutors and investigators dedicated to the enforcement of environmental crime laws.  These divergent trends can be explained by the different pollution histories, enforcement personnel structures, regulatory strategies, and case law of the two countries.  In recent years, Japan has been plagued by large oil spills and the illegal disposal of industrial waste.  By aggressively enforcing its environmental crime laws and increasing criminal fines, Japan can better deter these types of pollution in the future.

JAPAN'S LAWS ON DUAL NATIONALITY IN THE CONTEXT OF A GLOBALIZED WORLD

Mie Murazumi

     Abstract:  Japan’s Nationality Law has evolved into a law that tends to prevent or eliminate dual nationality.  This characteristic conforms with the traditional view that every country should take steps to avoid situations of dual nationality.  It also fits in with Japan’s cultural homogeneity and long-developed sense of national loyalty.  For over a century, the world viewed dual nationality as an evil to be avoided because of conflict of loyalty problems and difficulties with diplomatic protection.  However, the postwar globalization process has produced a desire in many people to have dual nationality to conform to their global identity.  Fewer conflicts among nations and more frequent international cooperation have lessened the significance of the problems traditionally associated with dual nationality.  Many countries are now changing their laws to allow dual nationality, and the consensus on the undesirability of dual nationality is breaking down.  Under such conditions, Japan’s continued insistence on the “one person one nationality” principle will only serve to hinder overseas Japanese as they try to participate in the societies in which they live.  It is therefore in Japan’s interest to change its laws to allow Japanese nationals to hold dual nationality. This will allow them to fulfill their role as bridges between Japan and the world.

THE U.S. PUSH FOR WORLDWIDE PATENT PROTECTION FOR DRUGS MEETS THE AIDS CRISIS IN THAILAND:  A DEVASTATING COLLISION

Rosemary Sweeney

     Abstract:     In response to pressure from the United States, Thailand amended its Patent Act in 1992 and 1999 to provide patent protection for drugs and to limit its control on the pricing, importation, and compulsory licensing of patented drugs.  These amendments and, perhaps even more importantly, the threat of U.S. trade sanctions, will probably ensure continued high prices and thus restricted access to new, patented Acquired Immune Deficiency Syndrome (“AIDS”) drugs in Thailand.  These drugs have dramatically changed the length and quality of life of patients infected with Human Immunodeficieny Virus (“HIV”) in developed countries.  About one million Thais are infected with HIV, but few have the resources to pay for these drugs.  The U.S. pressure on Thailand to provide strong patent protection for drugs has undermined Thailand’s ability to combat its AIDS epidemic.  The United States should allow Thailand to manufacture less-expensive generic copies of patented AIDS drugs without imposing trade sanctions for this annulment of the intellectual property rights of drug companies.  If the United States and Western Europe could prevent the import of these generic copies of AIDS drugs, which would entail only the enforcement of existing laws, it could protect the primary markets that the pharmaceutical companies were relying on when the new AIDS drugs were developed.  Thus, the price of AIDS drugs in Thailand could be lowered, making them accessible to more HIV-infected Thais, without destroying the economic incentives of drug companies to develop new AIDS drugs.

 

THE WTO PANEL DECISION ON AUSTRALIA'S SALMON IMPORT GUIDELINES:  EVIDENCE THAT THE SPS AGREEMENT CAN EFFECTIVELY PROTECT HUMAN HEALTH INTERESTS

Matthew D. Taylor

     Abstract:  On July 19, 1999, Australia lifted its ban on salmon imports and announced new salmon import guidelines.  The new guidelines were promulgated in response to a World Trade Organization (“WTO”) Appellate Body determination that the import ban violated the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”).  Canada challenged Australia’s new import guidelines, alleging that the new guidelines also violate the SPS Agreement.  The WTO dispute settlement panel held that, with the exception of only one provision, Australia’s new salmon import guidelines are based on appropriate scientific risk analyses and are now in line with comparable import guidelines for non-salmonid fish.  By rejecting most of Canada’s challenges and substantially upholding Australia’s new import guidelines, the dispute settlement panel demonstrated that the SPS Agreement can be used by WTO member countries to protect their human health interests.