State Legislation on the “Sea of Japan” / “East Sea”

600px-Sea_of_Japan_naming_disputeRecently certain Korean American groups have begun lobbying for state legislation requiring public school textbooks to explain that the “Sea of Japan” is also called the “East Sea.” Japan prefers and uses the former, while South Korea the latter. Bills on this issue are currently at varying stages of adoption in Virginia, New Jersey, and New York, and are part of a broader campaign to raise public awareness about Japan’s colonial and wartime behavior. In this post, I want to address briefly the constitutionality of this legislation under the doctrine of foreign affairs preemption. My view is that the legislation is likely permissible and not preempted.

I’ll begin with the key features of foreign affairs preemption. In American Insurance Association v. Garamendi, the Supreme Court explained that the constitutionality of a state action carrying more than “incidental” foreign policy consequences hinges on whether the action conflicts with federal foreign policy. In the presence of a clear conflict, the state law is invalid. Absent such a conflict, constitutionality depends primarily on the strength of the state interest at stake, as judged “by standards of traditional practice.” This means that non-conflicting state action is likely to be permissible if it falls within a traditional competence of state governments.

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Syria and the Arms Trade Treaty

In this post, I want to evaluate the link between two contemporary foreign policy issues that are generally viewed as unrelated. The first is ongoing U.S. military assistance to Syrian rebels. As Reuters reported last week, the United States is currently supplying a variety of small arms, anti-tank rockets, and other items to “moderate” rebel factions, and Congress has approved funding for future deliveries through the end of the fiscal year. The second issue is the Obama Administration’s decision to sign the Arms Trade Treaty (“ATT”) last September. While it’s far from clear that the United States will ratify the ATT, an established doctrine of international law holds that the act of signature triggers an interim obligation to refrain from conduct that would defeat the treaty’s “object and purpose.” This obligation might restrict the ability of the United States to supply arms to the rebels, and raises questions about the legality of the ongoing transfers. To understand why, it’s necessary to consider the text of the ATT, the rebels’ conduct, and the nature of the interim obligation.

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The Drafting History of the Treaty of Shimonoseki

One of the many contested issues in the sovereignty dispute over the Senkaku / Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I’ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: whether a first-hand, historical account of the Treaty negotiations from a Japanese official named Munemitsu Mutsu favors the contemporary position of either party. Mutsu’s account is valuable to the ongoing debate because he wrote it shortly after the negotiations concluded and, as the Japanese foreign minister and Tokyo’s chief representative at Shimonoseki, he possessed intimate and unsurpassed knowledge of the discussions that occurred. I obtained the account from Kenkenroku: A Diplomatic Record of the Sino-Japanese War, 1894-95, which was edited and translated by Gordon Mark Berger in 1982.

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