Volume 7, Issue 1
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See below for individual article downloads.
Attempting to Go Beyond Forgetting: the Legacy of the Tokyo IMT and Crimes of Violence Against Women
This article begins by first focusing on the Tokyo IMT's heritage of collective forgetting in relation to instances of systematized violence against women, especially the establishment of comfort stations in territories formerly occupied by the Japanese Imperial Army. In specific, after the Introduction, it describes the international political, legal and military factors that led to the formation of the Tokyo IMT; a brief overview of the trial; the political and pedagogical functions of the Tokyo IMT; and legal and extra-legal devices of the Tokyo IMT. Subsequently, it points out key differences between the Nuremberg and Tokyo Trials, in terms of their legal and political strategies and aims. From there, it analyzes the Tokyo IMT's legacy of forgetting crimes of violence against women, especially the crimes against the comfort women, which included a collusion of amnesia imposed by the Allied powers with the Japanese Imperial government, through the exploitation of various legal loopholes in international law. From there, it moves from the Tokyo IMT's specific history to a broader analysis of the functions of crimes of violence against women during wartime conditions in the twentieth century and why such crimes, for the most part, have been invisible. To close, the article assesses the strengths and weaknesses of various ways in which women suffering such wartime crimes of violence, inclusive of the comfort women, may seek redress for such crimes.
Resolving Constitutional Disputes in Contemporary China
Beginning in 1999, a series of events generated speculation that the Chinese Party-state might be prepared to breathe new life into the country's long dormant constitution. In recent years, as the Party-state has strictly limited constitutional adjudication and moved aggressively to contain some citizen constitutional activism, this early speculation has turned to pessimism about China's constitutional trajectory. Such pessimism obscures recognition of alternative or hybrid pathways for resolving constitutional disputes in China. Despite recent developments, Chinese citizens have continued to constitutionalize a broad range of political-legal disputes and advance constitutional arguments in a variety of forums. This article argues that by shifting focus from the individual legal to the collective political dimension of constitutional law, a dimension dominant in China's transitional one-party state, we can better understand the significance of the constitution in China and identify patterns of bargaining, consultation, and mediation across a range of both intrastate and citizen-state constitutional disputes. Administrative reconciliation and "grand mediation," dispute resolution models at the core of recent political-legal shifts in China, emphasize such consultative practices. This zone of convergence reveals a potential transitional path for resolving constitutional disputes. Specifically, the Party-state could choose to adapt and apply the grand mediation model in the context of constitutional disputes. Grand mediation involves a multilevel, Party-state political consultation that preserves a limited but meaningful role for the judiciary. An adaptation of the grand mediation framework would provide an indigenous dispute resolution model for resolving constitutional disputes, regularizing informal constitutional dispute resolution practices, and bringing judges to the constitutional interpretation table. At the same time, it would take account of the realities of China's current political environment. Chinese reformers could use such a mechanism (or existing informal dispute resolution practices) to advance their long-term goals of facilitating citizen-state consultation, reform concessions, and further the diffusion of constitutional norms through the Chinese polity.
Clashing Kingdoms, Hidden Agendas: The Battle to Extradite Kwok-A-Sing and British Legal Imperialism in Nineteenth-Century China
This essay blends history, law, and politics in considering the role of legal imperialism nineteenth-century English extradition law in colonial Hong Kong. Building upon the pioneering work of Jerome Cohen, this essay enhances and clarifies our understanding of Chinese legal history and its continued (and future) influence on Sino-Western relations. By focusing upon the series of In re Kwok-a-Sing decisions as they traversed courts from colonial Hong Kong to imperial London, this study analyzes how, through skilful legal reasoning, the British courts managed to circumvent laws and assert their political domination in Southeast Asia by repeatedly refusing to extradite Kwok-a-Sing to China. In the process, the paper considers how Britain and other Western powers (including the United States) invariably used law to subordinate China, facilitating a cultural alienation and humiliation whose effects continue to dog Sino-Western relations. It accordingly makes legal history relevant to understanding contemporary international politics.
Governing Financial Disputes in China: What Have We Learned From the Global Financial Crisis of 2008?
In light of the recent global financial crisis of 2008, this article critically compares how China's national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of the China International Economic and Trade Arbitration Commission (CIETAC) and the Shanghai Courts' financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, it provides insight into which institution is best positioned to handle financial-related cases, discusses prospects for coordination between the two, and sets out proposals for further reform. Initial findings suggest that given CIETAC's limited exposure to banking and financial-sector disputes, in the immediate term, parties should seek resolution through local financial division dispute resolution mechanisms, such as the financial division of the Shanghai Courts. In the long term, prospects for greater strengthening of national mechanisms such as CIETAC and the Securities Dispute Resolution scheme will provide additional avenues of recourse.