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Penyelesaian Sengketa Sengketa Pulau Dokdo Antara Jepang Dan Korea Selatan Secara Damai, Utami Gita Syafitri

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The Dokdo Island dispute is a territorial dispute involving Japan and South Korea in the dispute over the island located in the Sea of Japan. The governments of Japan and South Korea base their claims of ownership of Dokdo Island on historical evidence and geographical connectivity. The Dokdo Island dispute hampered the process of negotiating the maritime zone delimitation in the Sea of Japan. The Dokdo Island dispute needs to be resolved immediately by establishing the maritime zone boundaries of Japan and South Korea, as well as providing legal certainty over the ownership status of Dokdo Island. The sovereignty claim …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of women, to eliminate the …

Constitutional Reform In Japan: Prospects, Process, And Implications, Nobuhisa Ishizuka

Faculty Scholarship

Japan's constitution has remained unchanged for over 70 years since its adoption. With Prime Minister Shinzo Abe's re-election as the leader of the ruling Liberal Democratic Party of Japan (LDP) in 2018, the issue of constitutional revision has gained renewed attention. On March 13, 2019 the Center for Japanese Legal Studies at Columbia Law School co-hosted, with the Council on Foreign Relations, a full-day conference on "Constitutional Reform in Japan: Prospect, Process, and Implications." Three panels of distinguished experts examined the domestic political landscape in Japan, provided comparative legal perspectives, and considered the political, strategic, and social implications of proposed …

Constitutional Reform In Japan, Nobuhisa Ishizuka

Faculty Scholarship

Over seventy years ago it would have seemed inconceivable in the aftermath of a calamitous war that a complete reorientation of Japan into a pacifist society, modeled on Western principles of individual rights and democracy, would succeed in upending a deeply entrenched political order with roots dating back centuries.

The post-war Japanese constitution lies at the heart of this transformation. Drafted, negotiated and promulgated a mere fourteen months after Japan's formal surrender, it has remained a model of stability amidst transformational changes in the domestic and international political landscape. In the seventy-plus years since its adoption, it has not been …

Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata

Pomona Senior Theses

This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …

Hammering Down Nails, Scott M. Lenhart

Georgia Journal of International & Comparative Law

No abstract provided.

Constitutionalism: East Asian Antecedents, Tom Ginsburg

Chicago-Kent Law Review

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …

A Constitutional Case For Amending Article 9, Craig Martin

Craig Martin

The Japanese Constitution As Law And The Legitimacy Of The Supreme Court’S Constitutional Decisions: A Response To Matsui, Craig Martin

Craig Martin

This article, from a conference at Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered. In this article, Borrowing from Kermit Roosevelt’s arguments on judicial …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

America Giveth, And America Taketh Away: The Fate Of Article 9 After The Futenma Base Dispute, Allen P. Mendenhall

Allen Mendenhall

This Article considers how the Obama administration’s policies toward Japan implicate Article 9 of the Japanese Constitution. More specifically, it argues that the Futenma base dispute (as it has come to be known) jeopardizes the very existence of Article 9 by threatening to render it moot and by expanding the already expansive interpretations of Article 9. Part I provides a brief history of the Futenma base dispute during the Obama years, and Part II explains the effects of the Futenma base dispute on Article 9. More specifically, Part II contextualizes the Futenma issue by way of the legislative and judicial …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Michigan Law Review

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …

Japanese Prefectural Scapegoats In The Constitutional Landscape: Protecting Children From Violent Video Games In The Name Of Public Welfare, Susan Minamizono

San Diego International Law Journal

Part I of this comment will examine the history and application of freedom of expression in Japanese case law and the evolution of the public welfare concept and its circumscribing effect on individual freedoms. Part II will explore the recent local regulatory efforts and the historical underpinnings for these laws that place restrictions on materials to children. Part III will compare the Japanese legislative endeavors with their American counterparts and highlight the reasons why United States laws will continue to be struck down by courts. Part IV will analyze the response of the video game industry to the onslaught of …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Michigan Journal of International Law

This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …

Self-Defense: The Equalizer, David B. Kopel, Linda Gorman

David B Kopel

Experiments in tightening gun-control laws have eroded the right of self defense and failed to stop serious crime. Studies Japan, the United Kingdom, Canada, and Australia.

The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port

Faculty Scholarship

Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.

Obscenity And The Japanese Constitution, Yasuo Tokikuni

Kentucky Law Journal

No abstract provided.

Constitutional Law-Eminent Domain-Destruction Of Private Property To Prevent Enemy Capture, John F. Spindler S.Ed.

Michigan Law Review

Respondent oil companies owned terminal facilities in Manila at the time of the Japanese attack on the Philippines. The terminals were destroyed by the United States Army as the Japanese entered the city. Although the Army had requisitioned oil from the terminals prior to their destruction, respondents were bound by the decision of the court of claims to the effect that prior to December 27, 1941, when respondents were notified that the terminals themselves were requisitioned for the purpose of destruction, there had been no taking within the meaning of the Fifth Amendment. The court of claims allowed recovery on …

Constitution Of The Empire Of Japan, George A. Malcolm

Michigan Law Review

In the history of the Japanese people, five dates stand out above all others. They are 66o B. 'C., when, according to legendary account, the Empire of Japan was founded .by the Emperor Jinmu; 1853, when Commodore Perry, with an American squadron, anchored offside what is now Yokohama and caused the opening of Japan to foreign intercourse; 1867-1868, when there was a restoration'of the monarchy, marking the beginning of the Meiji Era of Constitutionalism; and 1889, when the Constitution of Japan was promulgated.