ICJ: What can it do for the victims of colonialism, Japanese & Other ?
Eisuke, what do you know about the International Court of Justice ? You wasted two post counts with no content worth noting. While you make empty claims, some people strive to convey genuine content. Try to absorb some because you seem to need the information.
The Asian Perspective on the International Court of Justice
Here are some serious criticisms that ICJ is facing due to its formation, function, and activities in the past.
1. What is the nature of ICJ ?
2. How is it viewed upon by former victims of colonialism ?
3. How was the sole Asian case ICJ handled, the Vrai Vuehell Temple Case between Thailand and Cambodia ?
4. Why is the Vrai Vuehell Temple Case considered a mistrial that should never have happened by many Asian countries ?
5. Why is an establishment of an Asian International Court of Justice (ICJA) needed for future arbitrations of international conflicts involving Asia ?
What is International Law ?
Wikipedia definition of "
International Court of Justice" as of May 8, 2005
Kajimura Hideki, former Professor of Kanagawa University, states in "The Question of Takeshima/Tokdo,"
"In Japan, Korea's attitude of not responding to the 'arbitration by authoritative international organization' is generally regarded as incomprehensible and unreasonable. 'If you are so confident, wouldn't it be better to face a trial ?' the Japanese say, but is it really so ?"
"Korea counters that originally there is no dispute on the island, and there is no need to be troubled by a trial since it is Korea's inherent territory. It is not that they are not confident, but it ought to be seen from their deep-rooted distrust of the existing international judiciary organs."
"One may go so far as to say there is no 'firmly established and authoritative' practice or international law which is not influenced by the convenience of the Great Powers in today's world. It is the reality of today that the structure of the old international law formulated druing the days of imperialism dividing the world is sharply pitted against the opinions of newly developing countries that the old international law be reorganized."
"We must take note of the fact that Japanese emphasis on international arbitration means to use it as an absolute shield of the existing imperialistic international law, while Korea puts its basis on the logic of change and reform."
"In the domain of international law, there does not exist a body of written laws, such as a constitution. What is existing is a logical system worked out mainly by the scholars of the imperialist states since Grotius and the precedents decided by the international judiciary organizations. They are relatively simple. The documents concerning a new international order, now being prepared by the UNCTAD (U.N. Conference on Trade Development) are not directly binding on an international judiciary organization."
"The first international judiciary organization was PCIJ, Permanent Court of International Justice established after World War I, out of the need of the imperialist powers to make some rules on dividing foreign territories as it became difficult to resolve by war. After WWII the present ICJ, International Court of Justice, came into being."
"Both PCIJ and ICJ do not have great competence and authority on the sovereign nations, and bringing a lawsuit over a dispute or not is up to the sovereign nations concerned. A trial can occur only when both countries involved in a dispute agree."
"There are numerous instances in which one country wanted to sue but the other refused. Even if a judgement is passed, the argument arises that it is all right not to heed the judgement in spite of possible reproach or retaliation as ICJ does not have any legal force."
"In the past and at present, judges at the International Court of Justice are mostly the 'white men' belonging to the advanced countries. The judge is not bound directly by his nationalirty, but when looking at it empirically, he is not completely free from his sense of values. What PCIJ and ICJ handled was limited to cases between the same (kind of) imperialist countries and relatively insignificant cases."
"Only a few Asian cases have been brought before the court. The Indian takeover of Goa without filing a lawsuit cannot be justified and affirmed under any existing international law, but it received wide support from the newly developing countries as a direct anti-colonial action."
"If the problem of Takeshima/Tokdo were brought to ICJ, the evaluation of Japan's 1905 incorporation would become a big point of dispute. As today's ICJ attaches importance to the 'effective occupation' rather than historical background, it is uncertain whether it will acknowledge Japanese incorporation as imperialist aggression or the formalities of its effective occupation as defective, even if it accepts all the historical facts that Korea claims."
"The present-day ICJ is not well accustomed to the concept of imperialist aggression. The Minquiers and Ecrehos Case between Britain and France, ruled 1953, is cited as much resembling the Tokdo/Takeshima case. The Minquiers and Ecrehos Islands are a group of uninhabited reefs off the Normandy Peninsula and were under the control of a Normandy tribe. But when the British-French treaty in the 13th century stipulated that all the possessions of the Duke of Normandy would be turned over to France, the name of the islands was not specifically written down."
"While France did not take any administrative measure by assuming that the islands were naturally French territory, the British in the 19th century recognized its fishing value and started utilizing it taking various administrative steps. ICJ attached great importance to the detailed instances of effective occupation since the 19th century. Despite the French claim of historical legitimacy, ICJ ruled in favor of Britain by regarding the French failure to lodge any protest as an abandonment of its territorial rights."
"Of course the Takeshima/Tokdo issue is greatly different from this case from the standpoint of the length of the period of dispute and that it occured in the course of imperialist aggression. But if the judge has no sense of distinguishing this difference, he can possibly pass a judgment that Korea was negligent in keeping its territorial rights by following the precedent of the Minquiers and Ecrehos Case."
Vrai Vuehell Temple Case: Thailand vs. Cambodia
"The sole Asian case ICJ handled is the Vrai Vuehell Temple Case between Thailand and Cambodia, and its judgment is said to have been contemptuous of Asians. When the Thai King concluded a treaty of boundary demarcation with French Indochina, this temple was on the Thai side of the boundary, and therefore defined as Thai territory under the stipulations of the treaty."
"The dispute occurred afterwards as the French military office which made the map to be attached to the treaty, commissioned by the Thai King, placed it in the Cambodian territory, whether accidentally or intentionally. ICJ ruled in favor of Cambodia, by assuming that the Thai King gave a tacit consent to the map by distributing its copies afterward and by not requesting correction of the map."
"The Thai side thought there would be no problem since it was written down clearly in the treaty as Thai territory. It must have distributed the maps believing it was a convenient map, except for the 'insignificant error.' In other words, it was ICJ's view that the country which remained idly by and was incapable of correcting the mistake certainly deserved to receive punishment. It overruled an accumulation precedents by putting importance on the attached map before the text of the treaty."
"When viewed from the Asian perspective, it is difficult to assent to ICJ's decision. It may be a personal opinion, but it is noteworthy that Professor Lee
Han-ki criticized the imperialist nature of ICJ and argued that Korea could safely entrust the Takeshima/Tokdo problem onlt if an Asian International Court of Justice (ICJA) were born."
(for details, please see Lee, Han-ki, Han'guk ui yongt'o (Korea's Territory), Seoul: Seoul National University Press, 1969)
"Korea is not trying to be blindly stubborn and obstinate. The Korean government is making an utmost effort to make 'effective occupation' that may easily be acceptable to the Euro-American logic while it respects assertions by the Third World Countries."
Kajimura, Hideki, "The Question of Takeshima/Tokdo," Korea Observer, Vol. 28 No. 3, Autumn 1997: 468-471
The original Japanese version of the article appeared in Chosen Kenkyu (Study of Korea), No.182, Sept. 1978
International Law and the Territorial Question
Sato Shojin, in "Japanese Expansionist Policy and the Question of Tokdo" states,
"In September 1954, the Japanese government proposed that the Korean government bring the question of Tokdo before the International Court of Justice, but this suggestion was rejected by Korea."
"Korea's rejection was considered just. According to Prof. Lee Han-key, 'International law is for imperialist countries even today, and it is impossible to depend on international law for clear-cut criteria for definition and demarcation of national boundaries.' It can be said that the International Court of Justice is still under the influence of imperialist countries."
Sato, Shojin, "Japanese Expansionist Policy and the Question of Tokdo," Korea Observer, Vol. 29 No.1 Spring 1998: 182
What are we seeing in Japan now ?
"Around the end of January 1905, the Japanese cabinet decided to incorporate Tokdo aka Takeshima into its territory. This came to the knowledge of the Korean government at the end of March 1906. In November 1905, four months prior to this, Japan had made Korea its protectorate, barring the latter from taking any counteractions against the actions the former took."
"In August 1945, Korea was freed from Japanese occupation, and Japan was placed under U.S. occupation and abandoned Tokdo. But in 1951, when its soverignty was restored by the conclusion of the San Francisco Peace Treaty with the U.S. and the Allied Powers, Japan began laying claims to Tokdo."
"The annexation of Tokdo during the Russo-Japanese War 1904-1905 should be examined in the vein of Japan's pursuit of an expansionist policy and analyzed in the overall process of the demarcation of territories by Korea, South and North, China, Russia, the Philippines and the U.S."
"Japan's post-war move to claim Tokdo as its territory is linked to its colonization of Ainu Moshiri and
Okinawa. This move, along with its demand for the reversion of the Northern Islands, may be viewed as Japan's return to its imperialist expansionist policy of the past."
Sato Shojin, "Japanese Expansionist Policy and the Question of Tokdo," Korea Observer, Vol. 29 No.1 Spring 1998: 165-166
Reoccupation Attempted: What ought to be done ?
"While the Korean War was being fought, Japan, the U.S. and 48 other countries signed a Treaty of Peace in San Francisco in September 1951. The Japanese economy was revived by the mass production of materials for the U.S. troops in Korea."
Taking the Korean War as an opportunity 'Japanese imperialism' revived, and Japan is now laying cliam to Tokdo, the Northern Islands, and Chokyoto (Chogyodai). Today Tokdo is defended by Korean Police and is kept from Japan's seizure, but Japan has occupied Chogyoto since
Okinawa was returned to Japan by the U.S. on May 15, 1972. It was on January 14, 1895, that the Japanese government decided to take possession of the island during the Sino-Japanese War."
"Japan refers to the four Northern Islands as Northern Territories and is demanding Russia to return them. The Russian government should return the islands not to Japan, but to their original inhabitants; Japan and Russia must return them to their original owners, the Ainu Moshiri including Sakhalin, the Kuriles,
Hokkaido and the Maritime Province of Siberia."
Sato Shojin, "Japanese Expansionist Policy and the Question of Tokdo," Korea Observer, Vol. 29 No.1: 181 Spring 1998
What is Ainu Moshiri ?
"'Ainu Moshiri' means the 'Earth where the Ainu live' in the Ainu language. The Ainu people are an ethnic minority group in Japan, numbering several tens of thousands and mostly living in Hokkaido. They claim to have come to live in the Ainu Moshiri comprising Hokkaido, the Kuriles and Sakhalin during the Jomon age in Japan, 3,000 to 4,000 years ago. They have their own language, religion and culture, and maintain that they have been discriminated against, particularly since Japan's colonization of Hokkaido during the
Meiji era, and that a new Ainu legislation should be enacted replacing the 'Hokkaido Former Aborigines Protection Act,' allowing them 'a higher degree of autonomy' for self-determination."
(Yamamoto Kazuaki, ed., Ainu Moshiri: ainu minzoku kara mita hokppo ryodo henkan kosho (Ainu Moshiri: Negotiations on the Reversion of the Northern Islands as viewed by the Ainu People) Tokyo: Ochanomizu shobo, 1992, pp. i-iii, 335-6;
Sato, Shojin, "Kokumin kokka nihon no ainu moshiri shokuminka to Chosen shokuminka" (Japan's Colonization of the Ainu Moshiri and Korea), Azia mondai kenkyu shoho (Journal of the Institute for Asian Studies), Dec. 1997, pp. 1-16;
also see the statements submitted by the Ainu Association of Hokkaido to the working Group on Indigenous Populations in Geneva, Switzerland in Aug. 1987, Aug. 1988, and July 1993;
the inauguration speech by Nomura Giichi representing the Ainu Association of Hokkaido at the opening ceremony of the International Year of the World's Indigenous Peoples at the UN General Assembly on Dec. 10, 1992)
Sato, Shojin, "Japanese Expansionist Policy and the Question of Tokdo," Korea Observer, Vol. 29 No.1 Spring 1998:165-166
Japanese Expansionist Policy and the Question of Tokdo: Conclusion
"The Japanese occupation of Tokdo was the initial step towrad
the invasion of Korea. The Japanese fishermen had encroached upon Korean waters and islands such as Komundo, Ullungdo, and Narodo; sometimes they built settlements of Japanese 'emigrants' and infringed on Korean fishing grounds."
"At the beginning of 1910, Foreign Minister Komura Juntaro spoke before the Budget Committee of the House of Representatives of the Diet:
'...To concentrate emigrants in Manchuria and Korea is to concentrate the Yamato (Japanese) people. Prior to the Russo-Japanese War, Japan had been an insular country, but as the result of the war, it has become a sort of continental state.'
(The Proceedings of the First Sub-Committee of the Budget Committee, the House of Representatives, the 26th Imperial Diet, pp.5, 17)
"The Japanese government dispatched Japanese to Korea and Northeast China not only as combatants but also as emigrants to settle down there, turn the areas into Japanese territories, multiply the Yamato people, and to convert the island country of Japan into a continental state."
"Had Japan not suffered the defeat in the Asian War and the Pacific War, the multitude of Japanese would have settled down permanently in Northeast China, Korea, Taiwan, Saipan, and Palau, forced the emperor system and the Japanese language upon the natives, and dominated them under the slogans of 'Five Races in Harmony' or 'Korea and Manchuria are one body.'"
(Kim, Chong Mi, Suihe undoshi kenkyu (A Study of the History of the Social Equality Movement), (Tokyo: Gendai kikaku shitsu, 1994), pp. 263-301)
"Those Japanese 'emigrants' who had invaded many parts of Asia and the Pacific compelled the local peoples to use the Japanese language, built
shinto shrines, and renamed places in Japanese style. As the war ended, these shrines were destroyed and the place names reverted to the original ones in Taiwan, Korea and Northeast China."
(Kim, Chong Mi, "Nihon kokumin kokkato nihonjin imin" (Japan and Japanese Immigration), Sabetsu to kyoseino shakaigaka (The Sociology of Discrimination and Symbiosis), Iwanamikoza Series, Modern Sociology, Vol. 15 Tokyo: Iwanamishoten, 1996, p. 129)
"As has already been observed, Sakhalin and Hokkaido were the lands of the aborigines who had first settled down there. The Japanese move to reoccupy Tokdo and reclaim the Northern Islands is but a link in the chain of its overall imperialistic design against other lands and peoples today to expand its territories including the economic water zone."
"The history of Japan's aggression still continues today. The Ainu Moshiri that includes the islands of Kunashiri, Etorofu, Habomai and Shikotan (these are Ainu words) and that is termed 'Northern Territories' by the Japanese government is, in fact, the homeland of the Ainu, Uilta, Nivx and other northern peoples. To free the Ainu Moshiri from the colonial control of Japan is a prerequsite to the task of checking Japan's reoccupation of Tokdo."
(Kim, Chong-mi, "Higashi azinai okeru inta nashonarizmu no rekishi" (History of Internationalism in East Asia);
Sato, Shojin, "Nihon kokkato ainumoshiri shokuminkato Chosen no shokuminka" (Japan's Colonization of Ainu Moshiri and Korea), Azia mondai kenkyu shoho (Journal of the Institue for Asian Studies), No. 12, 1997)
"In the midst of the imperialistic war between Japan and Russia, both trying to colonize Korea, the former took possession of Tokdo and proceeded to annex all of Korea. It was 36 years before its occupation of Tokdo that Japan named Ainu Moshiri 'Hokkaido' and incorporated it into its territory."
"Historically, Tokdo has been within the domain of Korea, and it will become a part of the territory of a unified Korea in the future. It is the territory of South Korea now."
"If the Japanese scholars of modern/contemporary Asian history wish to forestall Japan's designs of aggression on other lands and countries, they are advised to cope squarely with the Japanese move to reoccupy Tokto and to re-claim the title of the northern islands. This research activity involves an ideological implication to concur with or to negate aggression. It bears on the basic perception of history of the resercher."
"If a researcher wishes to check Japan's attempt at the reoccuopation of Tokdo, he should
1) clarify the facts and the historical meaning of the occupation of Tokdo in the course of Japan's aggression against Korea, and
2) critically examine the history of Japanese emigration, i.e. the history of Japan's colonization of foreign lands and peoples."
Sato, Shojin, "Japanese Expansionist Policy and the Question of Tokdo," Korea Observer, Vol. 29 No.1 Spring 1998: 182-185