Asian-Pacific Law & Policy Journal

Volume 14, Issue 2

louss — Mon, 25 Feb 2013 05:49:42 +0000

On April 7, 2012, the members of the William S. Richardson School of Law (“WSRSL”) at the University of Hawaiʻi, Mānoa, (“UHM”) Asian-Pacific Law & Policy Journal (“APLPJ”), Pacific Asian Legal Studies Organization (“PALSO”), and LAMBDA Law Student Organization put on a symposium entitled Rainbow Rising: Gender, Solidarity, and Scholarship on Gender Identities and Sexualities in Asian and Oceanic Law & Policy (“Rainbow Rising Symposium”). This groundbreaking symposium brought together leaders and advocates for lesbian, gay, bisexual, transgender, intersex, and queer (“LGBTIQ”) rights throughout Asia and the Pacific to begin and continue dialogue on issues facing the LGBTIQ community throughout the region. As a continuation of this symposium, the editors of APLPJ are proud to present Volume 14, Issue 2, which features pieces from the Rainbow Rising Symposium. We hope that this issue will help continue and advance the dialogue begun in April.

In this issue, we have the distinct honor of presenting six pieces comprised of articles, a comment, and an essay presented at the Rainbow Rising Symposium, in addition to an adapted transcription of a Rainbow Rising Symposium presentation. Each piece advances our understanding of sexuality and gender in the Asia-Pacific region. Of the three articles, two focus on Hong Kong and one focuses on Taiwan. In their article Sexual Orientation-Based Violence in Hong Kong, Rebecca Stotzer, Associate Professor of Social Work at the Myron B. Thompson School of Social Work at UHM, and Holning Lau, Associate Professor of Law at the University of North Carolina School of Law, fill an important gap in the scholarship on violence against lesbians, gays, and bisexuals in Hong Kong through a sociological analysis of independent research. Turning towards discrimination, Carole Petersen, Professor of Law at the WSRSL at UHM and Director of the Spark M. Matsunaga Institute for Peace and Conflict Resolution at UHM, closely analyzes the ways in which international treaties may be used to reduce discrimination on the basis of sexual orientation and gender identity in Hong Kong in her article Sexual Orientation and Gender Identity in Hong Kong: A Case for a Strategic Use of Human Rights Treaties and the International Reporting Process. Finally, in her article Lesbian Parenting in Taiwan: Legal Issues and the Latest Developments, Yun-Hsien Diana Lin, Associate Professor of Law at the Institute of Law for Science and Technology at National Tsing Hua University, provides an overview of the options available to prospective Taiwanese lesbian couples who wish to be parents and the legal barriers that keep the couples from becoming so. Lin concludes by making a call for legal reform in Taiwan that will achieve the substantive equality guaranteed under the Constitution. Together, these three articles help provide insight into the challenges individuals of the LGBTIQ community face both in Hong Kong and in Taiwan.

In addition to the three articles, we are also publishing one essay, one adapted transcription, and one student comment in this issue. In his essay, Japan’s 2003 Gender Identity Disorder Act: The Sex Reassignment Surgery, No Marriage, and No Child Requirements as Perpetuations of Gender Norms in Japan, Hiroyuki Taniguchi, Associate Professor of Law at Takaoka University of Law in Japan, provides a close examination of Japan’s Gender Identity Disorder Act. He argues that, although the Act appears progressive on its face, it ultimately preserves societal gender norms through its requirements. Moving away from East Asia, Dr. Dédé Oetomo, founder and trustee of GAYs NUSANTARA Foundation, a community-based organization working on sexual rights, health, and well-being of LBGTIQ individuals in Surabaya, Indonesia, provides an overview of the situation surrounding LGBTIQ rights in Southeast Asia in his adapted transcription New Kids on the Block: Human Rights, Sexual Orientation, and Gender Identity in Southeast Asia. Finally, 2012 WSRSL graduate Adam Chang challenges Hawaii’s local and settler lesbian, gay, bisexual, and transgender communities to take a close look at how their methods and push for equality may be harming the Native Hawaiians’ pursuit of self-determination. These three pieces provide insight into the diverse issues surrounding gender and sexuality in Japan, Southeast Asia, and Hawaiʻi.

Although this issue only scratches the surface on the topic, we hope it provides insight on gender and sexuality throughout Asia and the Pacific. Moving forward, we hope this issue sparks an increase in dialogue on the topic in the region.

A big māhalo to last year’s APLPJ board for doing the legwork to make such an outstanding symposium; Professor Mark Levin for suggesting the symposium theme and for providing guidance; to last year’s APLPJ editors, PALSO members, and LAMBDA members for working so hard to make the symposium a reality; and to all of the people who came near and far to participate in the symposium. In addition, thank you to this year’s outstanding editorial team for their hard work last semester as we worked to publish two issues. This issue would not have come to fruition without them.

Adair K. Fincher & Shirley S. Lou-Magnuson
Editors-in-Chief

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Volume 14, Issue 1

louss — Mon, 31 Dec 2012 18:32:12 +0000

This fall, the Asian-Pacific Law & Policy Journal (“APLPJ”) editors ambitiously strove to edit and publish more than double the number of pieces we have published in the past. These thirteen pieces are spread between two issues: Volume 14, Issue 1 and Issue 2. Volume 14, Issue 1 is comprised of articles, comments, and a translation that primarily traversed our standard submission process. Volume 14, Issue 2 is comprised of articles, an essay, a comment, and adaptions of presentations that resulted from our Spring 2012 symposium, Rainbow Rising: Community, Solidarity, and Scholarship. Here, APLPJ proudly presents Volume 14, Issue 1.

Published in this issue are two articles, three comments, and one translation. As a whole, these pieces provide an enlightening perspective on the Asia-Pacific region. Individually, the pieces can be separated into two general categories: regional and local. What follows is a brief overview of each piece, oriented within its category.

In their article and comment, respectively, U.S. Navy Commander and active duty Judge Advocate Jonathan Odom, and William S. Richardson School of Law (“WSRSL”) J.D. candidate and APLPJ Staff Editor Garrett Halydier provide regional insight. In his article, What Does a “Pivot” or “Rebalance” Look Like? Elements of the U.S. Strategic Turn Towards Security in the Asia-Pacific Region and Its Water, Commander Odom takes a regional focus by exploring the Obama Administration’s 2012 shift in policy towards the Asia-Pacific region through an analysis of speeches, documents, and news reports. Halydier, on the other hand, primarily focuses on Asia in his comment A Hybrid Legal and Economic Development Model that Balances Intellectual Property Protection and Economic Growth: A Case Study of India, Brazil, Indonesia, and Vietnam. In this comment, Halydier merges economic and legal theory to create a new development model that seeks to bridge the chasm that separates the two fields.

Also published in this issue are three pieces that are much more local in scope. In her article, Na Wai E Ho‘ōla i Nā Iwi? Who Will Save the Bones: Native Hawaiians and the Native American Graves Protection and Repatriation Act, University of Hawaiʻi at Mānoa American Studies Ph.D. candidate and WSRSL J.D. E. Sunny Greer provides a case for why it is imperative that Native Hawaiians care for ancestral remains and cultural objects under the Native American Graves Protection Act. Staying in the Pacific, WSRSL J.D. candidate and APLPJ Executive Comments Editor Nicole M. Torres focuses on the need for a U.S. congressional declaration of territorial principles through an analysis of the effects of Rice v. Cayetano on voter classification in the Marianas in her comment Self-Determination Challenges to Voter Classification in the Marianas After Rice v. Cayetano: A Call for Congressional Declaration of Territorial Principles. Finally, WSRSL J.D. candidate and APLPJ Executive Articles Editor Bradley Sova provides a unique overview of the ongoing intellectual property brawl between burger franchises In-N-Out Burger in the United States and Caliburger in Chinain his comment Double-Double Trademark Trouble: In-N-Out and CaliBurger’s International Burger Brawl.

In addition to the articles and comments published in this issue, we also present a translation of Japan’s Act on Special Cases in Handling Gender for People with Gender Identity Disorder (Japan) Law No. 111 of 2003 (Effective Jul. 16, 2004) (the “Act”) by Georgetown School of Law J.D. candidate Chiaki Ota. Although not originally part of this issue, we decided to publish a translation of the Act to complement Takaoka University of Law’s Associate Professor Hiroyuki Taniguchi’s Volume 14, Issue 2 essay entitled Japan’s 2003 Gender Identity Disorder Act: The Sex Reassignment Surgery, No Marriage, and No Child Requirements as Perpetuations of Gender Norms in Japan. Taniguchi presented an early version of this essay as part of our Spring 2012 Rainbow Rising Symposium.

We wish to thank the APLPJ editors who worked so hard this semester to edit so many articles. In addition, we wish to thank our authors for working so graciously with us as we sought to bring this issue to fruition. Finally, we wish to thank our advisor, WSRSL Professor Mark Levin, for his insight and support.

Adair K. Fincher Shirley S. Lou-Magnuson
Co-Editor-in-Chief Co-Editor-in-Chief

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Rainbow Rising Talks Airing on Olelo

louss — Fri, 29 Jun 2012 06:49:48 +0000

The Rainbow Rising speaker talks are officially airing on Olelo! If you missed the symposium, or you simply want to hear a talk again, tune in to the appropriate channel, at the appropriate time (HST) on the Olelo website. All speaker bios can be found here.

Alex Su’a

6/25/2012 @ 8:00am on VIEW 54
6/29/2012 @ 4:30pm on VIEW 54

Dr. Dede Oetomo

6/25/2012 @ 10:00pm on VIEW 54
6/30/2012 @ 9:00am on VIEW 54

Peter Renn

6/28/2012 @ 10:00pm on VIEW 54
6/30/2012 @ 10:00am on VIEW 54

Suh Yeon Chang

6/29/2012 @ 2:30pm on VIEW 54
6/30/2012 @ 11:00am on VIEW 54

Taiga Ishikawa

6/29/2012 @ 3:30pm on VIEW 54
6/30/2012 @ 12:00pm on VIEW 54

Volume 13, Issue 2

Jo — Fri, 11 May 2012 19:22:34 +0000

The editors of the Asian-Pacific Law & Policy Journal (“APLPJ”), proudly present Volume 13, Issue 2, which ambitiously features two translations, five articles, and four comments. The translations include reporting of landmark Chinese cases from 2009 and 2010 by China’s progressive investigative newspaper, the Southern Weekend. The topics covered in the articles include food safety in China; Japan’s relationship with nuclear weapons; Papahānaumokuākea Marine National Monument’s precedence-setting for international marine conservation efforts; and a piece on Native Hawaiian polity written in response to an article published by APLPJ in 2010. This issue also includes comments ranging from human trafficking in South Korea; legal history on Hawai‘i land inheritance law; corporate social responsibility in India; and an analysis of the natural resource enforcement chain in Hawai‘i.

Along with producing this exciting issue, the APLPJ staff presented what proved to be one of the largest and most significant student-run symposiums in the history of the William S. Richardson School of Law. The Rainbow Rising Symposium Committee, comprised of APLPJ staff and members of both the Pacific-Asian Legal Studies Organization and the Lambda Law Student Association, ultimately raised over $20,000 through generous grant support by the University of Hawai‘i at Mānoa’s Center for Japanese Studies, Center for Korean Studies, Center for Pacific Islands Studies, Center for Southeast Asian Studies, the Student Equity, Excellence & Diversity Board, and the Student Activity & Program Fee Board. Rainbow Rising also received support from the William S. Richardson School of Law and the Ka Huli Ao Center for Excellence in Native Hawaiian Law. We also received excellent support from community organizations and members: the Hawaii LGBT Lawyer Association, Japanese-American Citizen’s League, Kim Coco Iwamoto, and Equality Hawaii.

On April 6-7, 2012, the “Rainbow Rising: Community, Solidarity, and Scholarship on Gender Identities and Sexualities in Asian and Oceanic Law & Policy” symposium facilitated engaging dialogues between LGBTQI leaders from Indonesia, South Korea, Japan, Taiwan, Samoa, the continental United States (for a Western doctrinal comparison), and the Hawai‘i community. Rainbow Rising perfectly fulfilled its stated objectives of serving as a forum for important scholars, politicians, and community activists from Asia, Oceania, and the United States to share and advance thinking on lesbian, gay, bisexual, and transgender issues. In addition, the symposium contributed to our local community by fostering communication regarding issues relating to persons of diverse sexual orientations and bringing greater awareness to the local community of these issues.

We also received important media support from Equality Hawaii and ‘Ōlelo Community Media. Thanks to Equality Hawaii and ‘Ōlelo, Rainbow Rising will continue to inspire and educate beyond the symposium event itself. Video footage covering the entire symposium will be aired on ‘Ōlelo stations and featured on the ‘Ōlelo website for a period of time. DVDs of the coverage are also on file with APLPJ and are available for public access upon request.

A warm mahalo to APLPJ’s hard-working editorial staff, authors, faculty advisors, symposium sponsors, and support staff at the William S. Richardson School of Law for making 2011-2012 an incredible year for APLPJ.

Joanne S.C. Sheng
Editor-in-Chief, 2011-2012

Kori A. Weinberger
Executive Editor, 2011-2012

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The Papahānaumokuākea Precedent: Ecosystem-scale Marine Protected Areas in the EEZ by Alison Rieser

Jo — Fri, 11 May 2012 10:05:34 +0000

In 2006, the United States designated by presidential proclamation a 362,073 square kilometers protected area around the Northwestern Hawaiian Islands, a remote chain of coral atolls, reefs, and islands extending 1200 miles seaward of the U.S.’s fiftieth state. A subsequent proclamation renamed the area Papahānaumokuākea Marine National Monument to reflect the area’s cultural and spiritual significance to the Native Hawaiian people. In 2009, the U.S. designated additional national monuments in areas of the Pacific Ocean the U.S. claims as exclusive economic zones (“EEZs”), including submerged lands within the Marianas Trench and the waters surrounding the U.S. Line Islands. These designations brought the total area under monument status to over 850,000 square kilometers.

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We Are Who We Thought We Were: Congress’ Authority to Recognize a Native Hawaiian Polity United by Common Descent by Derek H. Kauanoe and Breann Swann Nuʻuhiwa

Jo — Fri, 11 May 2012 10:02:28 +0000

In an attempt to fulfill the federal government’s moral imperative, the United States Congress has spent more than a decade considering several proposed versions of the Native Hawaiian Government Reorganization Act (colloquially referred to as the “Akaka Bill”), which seeks to restore a small measure of Native Hawaiian self-governing authority by providing a process for the formal federal acknowledgment of a reorganized Native Hawaiian governing entity. The proposed Act changes significantly with each new Congress, but from its initial introduction in 2000 to the present, the Act has consistently required that the initial reorganization of the Native Hawaiian polity be carried out by the Native Hawaiian community, united by common Native Hawaiian descent without regard to blood quantum.

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Ten Years of Fighting Trafficking: Critiquing the Trafficking in Persons Report through the Case of South Korea by Ayla Weiss

Jo — Fri, 11 May 2012 09:58:40 +0000

The United States (“U.S.”) took the lead at the beginning of the twenty-first century in the fight against human trafficking with a comprehensive and novel piece of legislation, the Trafficking Victims Protection Act of 2000 (“TVPA”). The TVPA aims to protect trafficking victims, prevent trafficking, and prosecute traffickers domestically and internationally. The portion of the TVPA pertaining to foreign countries, the annual Trafficking in Persons Report (“TIP Report”), relies on the political and economic forces of the U.S. Although the TIP Report system has produced positive changes internationally, an examination of the system over the last decade suggests that an overhaul of the system is necessary. South Korea’s TIP report provides an excellent example of how the TIP system has fallen prey to political influence; employs weak analysis; utilizes confusing minimum standards; ignores a country’s socio-cultural background and continuing trafficking problems; discourages cooperation with other countries and international organizations; and offers no incentives for further improvement beyond the bare minimum standards. The TIP system’s treatment of South Korea highlights the flaws of the TIP Report and mirrors the experiences of numerous countries.

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Judging the Successes and Failures of the Extraordinary Chambers of the Courts of Cambodia by Seeta Scully

Jo — Wed, 01 Feb 2012 00:06:18 +0000

Can the Extraordinary Chambers of the Courts of Cambodia (“ECCC”) be considered a success? This question is particularly relevant at this time, when the ECCC has just begun prosecuting its largest case thus far. Four accused persons are currently jointly on trial, facing charges in relation to thousands of witnesses and hundreds of “crime bases” across Cambodia. This article seeks to weigh-in on the debate about the ECCC’s past successes and failures and to help articulate priorities and areas for improvement in the face of the current trials.

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Volume 13, Issue 1 is here!

Jo — Wed, 21 Dec 2011 18:36:07 +0000

The editors of the Asian-Pacific Law & Policy Journal respectfully dedicate this issue to Professor Jon M. Van Dyke, who passed away on November 29, 2011. The unexpected loss of Professor Van Dyke has been acutely felt by the students, faculty, staff, and alumni of the William S. Richardson School of Law, as well as by his many friends and colleagues in Hawai‘i and the international community. Professor Van Dyke was an internationally recognized jurist in the areas of constitutional law, international law, international environmental and ocean law, and international human rights law. As APL&PJ Faculty Advisor Mark Levin remarked, “Jon did all we are supposed to do. He was a stellar teacher, a prolific scholar across numerous fields, a colleague who shared generously of his time, and relentless in the pursuit of justice outside of the academy.” Professor Van Dyke was a faculty member of this law school for over three decades, and while he will be sorely missed, his legacy will live on in the thousands of students who had the opportunity to learn from him. Our hearts and thoughts are with his wife, Professor Sherry Broder, and with his children and family during this difficult time.

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Bridging the Gap?: The Role of Regional and National Human Rights Institutions in the Asia Pacific by Carole J. Petersen

Jo — Wed, 21 Dec 2011 18:33:54 +0000

Although the United Nations has been encouraging the development of regional human rights mechanisms for decades, there is still no regional human rights commission or human rights court in the Asia Pacific region. The lack of such a mechanism is often attributed to the region’s vast size and to the diversity of political, economic, and religious traditions. Yet it also reflects the region’s strong commitment to Westphalian concepts of sovereignty and the principle of non-interference in the internal affairs of neighboring countries. Taken together, these factors make it difficult to persuade governments in the Asia Pacific to give independent investigatory or judicial power to a regional (or even sub-regional) human rights institution. Thus, for the foreseeable future, the obligation to implement human rights treaties will continue to fall primarily on domestic institutions, including governments, domestic courts, and national human rights institutions (“NHRIs”), which are independent statutory bodies with a mandate to promote and protect human rights. The United Nations and human rights treaty bodies have encouraged governments to establish NHRIs and there has been a dramatic increase in the number of such bodies, including in the Asia Pacific region.

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