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Published online by Cambridge University Press: 10 June 2013
This article questions the idea that the role of domestic courts in relation to international law is triggered only when international law is incorporated into domestic law by the other branches of government. It argues that domestic courts have extensive powers in defining their role vis-à-vis international law and influencing the relationship between domestic and international law. By going beyond the typical monist-dualist discussions, the first part of the article presents how English and American courts, by giving different meanings to the term “part”, reveal how they perceive their relationships with the other government branches and their role in relation to international law. The article then investigates whether similar judicial techniques can be identified in Asian courts’ treatment of international law. In showcasing the approaches of some Asian courts, the article provides snapshots of how these judges actively shape their role vis-à-vis international law and how they construct their relationships with the Legislature and the Executive.
Lecturer in Law, Homerton College, University of Cambridge, United Kingdom. I am grateful to Tan Hsien-Li, one of the organizers of the 3rd NUS-AsianSIL Young Scholars Workshop for her valuable feedback on the previous drafts of this article, as well as to the participants of the workshop, in particular, Melissa Crouch, Kaku Shun, Nasu Hitoshi, Tan Zhongzheng, Wu Chien-Huei, and Andrew Wolman. Thanks are also due to Cora Chan for her comments on the domestic perspective. More than 350 decisions of Asian courts were analyzed for this article, and I am particularly grateful to Blaž Ciglenečki for his excellent research assistance. The usual disclaimer applies.
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41. Pan-American World Airways Inc. v. Department of Trade (1975), [1976] 1 Lloyd's Rep 257 (C.A.) at 261 (Scarman LJ, who was speaking of two courses of action that are reasonably open to the Court) [Pan-American].
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51. Phansopkar, supra note 42 at 626C−G (Scarman LJ).
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57. Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 (1992).
58. Sosa, supra note 56, citing H. R. Rep. No. 102-367 at pt. 1, p. 3 (1991).
59. Ibid., citing same source at p. 4.
60. ICCPR, supra note 27.
61. 138 Cong. Rec. 8071 (1992).
62. This position was explicitly espoused by the Executive under the Tate letter. Letter from Jack B. TATE, Acting Legal Adviser, US Dept. of State, to Acting US Attorney General Philip B. Perlman (19 May 1952), reprinted in (1952) 26 Dept. State Bull. 984−5.
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66. A v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 W.L.R. 414 at para. 434 [A. v. Home Department].
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72. Ibid.
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78. Phansopkar, supra note 42 at 626C−G (Scarman LJ).
79. Pan-American, supra note 41 at 261 (Scarman LJ).
80. Boyce, supra note 36 at paras. 25−6 (Lord Hoffmann).
81. Salomon, supra note 40 at 141F−H (Lord Denning MR); Minister of Public Works of Kuwait v. Sir Frederick Snow & Partners (1984), [1984] A.C. 426 (H.L.) at 435G−6C.
82. Ghaidan v. Godin Mendoza [2004] UKHL 30, [2004] 2 A.C. 557 at para. 60 (Lord Millett) [Ghaidan].
83. R v. Kelly (Edward) (1998), [2000] 1 Q.B. 198 (C.A.) at 210 C (Lord Bingham, using the term “permissible”).
84. Ahmad v. Inner London Education Authority (1977), [1978] Q.B. 36 (C.A.) at 48C−F (Scarman LJ); Ghaidan, supra note 82 at para. 60 (Lord Millett).
85. Keyn, supra note 23; West Rand, supra note 20.
86. This is primarily due to limited access to the case-law of Asian courts and even more limited English translations of this case-law. Due to the language barrier, the sources on which the analysis is based are mostly secondary—journal articles and translations of judgments published in international law reports, international law materials, or Oxford University Press's International Law in Domestic Courts.
87. Due to space constraints, the analysis is limited to these seven jurisdictions, although research for this article included the case-law of India, Indonesia, Sri Lanka, Pakistan, and Taiwan.
88. Yamaguchi v. United States, Judgment of 12 April 2002, Minshu Vol. 56 No. 4, at 729, online: Courts in Japan 〈http://www.courts.go.jp/english/judgments/text/2002.4.12-1999.-O-.No.887%2C.1999.-Ju-.No.741.html〉 [Yamaguchi].
89. Ibid.
90. Interquest Co v. Saudi Arabia, First Instance, Case No. H 15 (Wa) No. 29726, I.L.D.C. 1020 (JP 2005); Hanrei Times, No. 1223 (2007.1.1), 287, Judgment of 27 December 2005, at A3 (cited by I.L.D.C. Reporter, Jun Kochi) [Interquest].
91. Ibid., at para. 1.3. Compare this with the ruling in Yamaguchi, supra note 88:
Concerning the immunity of foreign states from civil law jurisdiction, the so-called absolute doctrine was the traditional international customary law, but with the expansion of the scope of activities of the states, a view that immunity from civil law jurisdiction should not extend to acts of the state which are of private law or management of business nature, and the state practice of limiting the scope of immunity is being accumulated.
92. The Supreme Court confirmed the doctrine as “part” of domestic law in 2008, although it partly overruled the decision in relation to the test to be used for the distinction between acta iure imperii and acta iure gestionis. Tokyo Sanyo Trading Co Ltd v. Islamic Republic of Pakistan, Minshu Vol. 60 No. 6, at 2542, Supreme Court, Judgment of 21 July 2006, online: Courts in Japan 〈http://www.courts.go.jp/english/judgments/text/2006.07.21-2003.-Ju-.No.1231.html〉.
93. Interquest, supra note 90. Interestingly, in the end, this recognition did not affect the outcome. Finding that the purpose of the embassy was to function as a facility for diplomatic activities, the Court held that the acts performed were classified as iure imperii, and, therefore, the immunity applied. The same outcome would have followed had the Court applied the absolute immunity principle.
94. Civil Law Act 1956 (2006 Reprint), online: Official Portal of the Attorney General's Chambers of Malaysia 〈http://www.agc.gov.my/Akta/Vol.%202/Act%2067.pdf〉 [Civil Law Act]. A similar statute applies in Singapore. See Application of English Law Act (Cap. 7A, 1994 Rev. Ed. Sing.), s. 3.
95. DICKSTEIN, Howard “The Internal Application of International Law in Malaysia: A Model of the Relationship between International and Municipal Law”, (1974/75) 1−2 Journal of Malaysian and Comparative Law 204Google Scholar
96. Civil Law Act, supra note 94.
97. Village Holdings Sdn Bhd v. Her Majesty the Queen in Right of Canada, High Court of Malaysia, Judgment of 7 January 1987, 87 I.L.R. 223 at 238.
98. Trendtex, supra note 14. Note that the appeals had raised questions of the scope of the “restrictive” theory of state immunity as it had existed in the law of Malaysia between 1973 and 1975, before Trendtex was decided. This, however, did not exclude the application of the theory since it is only declaratory of existence of custom in the English common law.
99. Commonwealth of Australia v. Midford (Malaysia) Sdn. Bhd. and Anor [1990] 1 M.L.J. 475, 86 I.L.R. 640 at 650 (Gunn SCJ).
100. Ibid. This was especially in the light of the subsequent case-law confirming the change in common law. In Owners of Cargo Lately Laden on Board the Playa Larga v. Owners of the I Congreso del Partido (1981), [1983] 1 A.C. 244 (H.L.), the House of Lords unanimously held that the restrictive doctrine applied at common law in respect of actions over trading vessels regardless of whether the actions were in rem or in personam. The Court also discussed The Owners of the Ship “Philippine Admiral” v. Wallem Shipping (Hong Kong) Ltd and another (1975), [1977] A.C. 373 (P.C.), which was decided by the Privy Council and confirmed the restrictive doctrine before Malaysia abolished appeals to the Privy Council in 1978.
101. United Arab Republic v. Mirza Ali Akbar Kashani, India, High Court of Calcutta, Judgment of 17 April 1961, 64 I.L.R. 394, finding that the immunities of both personal sovereigns and of foreign states are governed by substantially the same set of rules under international law and the English common law. Compare this with the recent judgment of Democratic Republic of the Congo and Others v. FG Hemisphere Associates LLC (No 1), Hong Kong Special Administrative Region of the People's Republic of China, Court of Final Appeal, Judgment of 8 June 2011, 147 I.L.R. 376 [Congo].
102. Congo, ibid., at 434 (Chan PJ, Ribeiro PJ, and Sir Anthony Mason NPJ in the majority).
103. State Immunity Act 1978 (U.K.), 1978, c. 33. This statute was extended to Hong Kong in 1979.
104. The argument that the restrictive immunity doctrine should apply under the common law was made on the basis of the principle of “one country two systems”, under which China had permitted Hong Kong to maintain a high degree of autonomy. Under the principle, Hong Kong courts were allowed to continue applying the common law and maintain a different approach than that adopted by China. In response, the counsel for Congo argued that the issue before the Court concerned state immunity, and therefore it touched on the management and conduct of foreign affairs, an area “involving powers which have always been reserved to the Central People's Government, falling outside the limits of the Region's autonomy”. In this context, the answer was to be given not by HKSAR, which lacked the attributes of sovereignty of a state, but by the unitary state of China. In fact, the Chinese government had sent a series of letters to the Court, making clear its “consistent and principled position … that a state and its property shall, in foreign courts, enjoy absolute immunity from jurisdiction”. Secretary for Justice of HKSAR intervened against Congo and produced before the Court several letters from the Office of the Commissioner of the Ministry of Foreign Affairs of China. The letter insisted that:
The courts in China have no jurisdiction over, nor in practice have they ever entertained, any case in which a foreign state or government is sued as a defendant … irrespective of the nature or purpose of the relevant act of the foreign state.
The letters also stated that the fact that China had signed the UN Convention on Jurisdictional Immunities of States did not amount to an abandonment of this policy. Congo, supra note 101 at 394.
105. Ibid., at 453.
106. Some consider it a question for the Foreign Ministry, others for the Legislature, and yet others confer the decision upon the courts of law to determine the nature and extent of the applicable doctrine.
107. Congo, supra note 101 at 461. The Court interpreted the fact that after the resumption of sovereignty to China, no legislation was enacted to give effect to the restrictive immunity as a deliberate choice to reflect the policy of adherence to the absolute immunity doctrine consistently followed by China.
108. Ibid., at 467.
109. Ibid., at 472, citing Mann, supra note 63 at 23.
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111. Not only has China publicly adopted the absolute immunity principle, it has always claimed the same immunities for itself before foreign domestic courts, and asserted the same in letters to foreign states, e.g. US State Department. It is only exceptionally and, in particular, in relation to multilateral or bilateral agreements, that exceptions to this policy are made and waives of immunity are granted. See Congo, supra note 101 at 462.
112. Malaysian courts have noted that, in turning to the Executive for proof in cases relating to immunity, which is regulated by domestic law, may raise issues of judicial independence. Courts were concerned that recognizing the certificate as binding “would in effect, be tantamount to subordinating the competence of this court to deal with any dispute that may arise”. Their power to review executive acts and decide disputes between citizens, and between citizens and the state “is jealously guarded”. Only “clear words in a statute” can exclude such power. The judicial branch is, therefore, “not to be lightly treated as having been excluded [] by municipal legislation”. These elements, the Malaysian Court insisted, show “that there is compelling ground to resist judicial self-restraint”. See MBF Capital and Anor v. Dato’ Param Cumaraswamy [1997] 3 M.L.J. 300, 121 I.L.R. 367, at 377−9. In this case, the Malaysian Court, however, followed the certificate of the Foreign Ministry to determine at its own discretion whether the immunity applied to Mr Cumaraswamy, UN Special Rapporteur “only in respect of words spoken or written and acts done by him in the course of the performance of his mission” (emphasis added). The certificate did not include a mention that the UN Secretary-General had determined with conclusive effect that the particular words and acts of the expert fell within the scope of his mission. See Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, [1999] I.C.J. Rep. 62 at para. 7.
113. Chinese courts are willing to apply custom without proof of the state's acceptance of the norm, for example, when parties to a private agreement have agreed to use custom as the law governing their relationship, pursuant to art. 142 of the General Principles of the Civil Law of the People's Republic of China, adopted at the Fourth Session of the Sixth National People's Congress on 12 April 1986, and promulgated by Order No. 37 of the President of the People's Republic of China on 12 April 1986, online: China.org.cn 〈http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/11/content_21898337.htm〉. In such cases, Chinese courts are willing to establish the content of customary rules, determine the rights and obligations of the parties, and apply customary rules to the dispute. The only requirement, under art. 142 is that the matter before the Court is one on which “neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions”. In Shanghai E&T Intl Trans. Co., Ltd v. Sea-Land Orient (China) Ltd., Shanghai Maritime Court, 1996 (Hu Hai Fa Shang Zi No. 6, 1996), the Court referred to the Hague-Visby Rules. Given the maritime nature of the dispute (in this case, the plaintiff had consigned the goods to the defendant for carriage by sea, as specified in the sale contract), such reference could be read as recognition of international trade custom. Yet it was the parties who chose the Hague-Visby Rules as the applicable law in their Bill of Lading. In this context, to avoid any doubt, the Court declared:
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118. This is, however, not always absolute. See The Holy See v. The Hon. Eriberto U. Rosario, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and Starbright Sales Enterprises, Inc., Philippines, Supreme Court of the Philippines, G.R. No. 101949, 1 December 1994, 102 I.L.R. 163, which distinguished cases where foreign states sought immunity through the Foreign Office, from those in which foreign states did not. This allowed the courts to inquire into the facts and make their own determination as to the nature of the acts and transactions involved.
119. Tañada v. Angara, Supreme Court of the Philippines, No. 118295, May 2, 1997 (Panganiban J).
120. Gibbs, Gibbs and Gibbs v. Rodriguez et al., Supreme Court the Philippines, G.R. No. L-1494, Judgments of 3 August 1949 and 21 December 1950, 18 I.L.R. 661 at 665 (emphasis added).
121. General Principles of the Civil Law of the People's Republic of China, adopted on 12 April 1986.
122. Unless the international rules are ones in which China has made reservations, e.g. Lu Hong v. United Airlines, Inc, First instance, (2000) Min Jing Chu No. 1639, Gazette of the Supreme People's Court of the People's Republic of China, 2002, Issue 4, at 141−2; I.L.D.C. 780 (CN 2001).
123. Law of the People's Republic of China Against Unfair Competition, adopted on 1 December 2003.
124. Ferrero v. Mentresor, Judgment of the Chinese Supreme People's Court, Third Civil Tribunal, 24 March 2008, I.L.D.C. 1493 (CN 2008) [Ferrero v. Montresor]. Paris Convention for the Protection of Industrial Property, 20 March 1883, online: WIPO 〈http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html〉.
125. Ferrero v. Mentresor, supra note 124 at A3 (comment by I.L.D.C. Reporter, Zhu Lijiang).
126. Ibid.
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128. Microsoft Corporation v. Tianjin Pharmaceutical Group Co., Ltd., No. 1 Intermediate People's Court of Beijing Municipality, Judgment of 13 December 2000 〈http://www.lawinfochina.com/〉.
129. ICCPR, supra note 27.
130. Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (2 September 1990) [CRC].
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132. The Nationality Law, Act No. 147 of 4 May 1950.
133. X v. Japan, Final Judgment, Japanese Supreme Court (Grand Bench) Judgment, Minshu Vol. 62, No. 6, at 1367, I.L.D.C. 1814 (JP 2008) at para. 15.
134. Ibid., at A3 (comment by I.L.D.C. Reporter, Hiromichi Matsuda), although note that the Supreme Court used the international treaties in a broader manner to show the societal changes at home and abroad, in the light of which the Constitution should be read.
135. Although there is no strict stare decisis rule, Japanese courts nevertheless follow precedents of the Supreme Court.
136. Kayano et al. v. Hokkaido Expropriation Committee (The Nibutani Dam Decision), Judgment of the Sapporo District Court, Civil Division No. 3, issued 27 March 1997, 1598 Hanrei Jihô 33, 938 Hanrei Times 75, 38 I.L.M. 394 [Kayano].
137. ICCPR, supra note 27.
138. LEVIN, Mark, “Japan: Kayano et Al. v. Hokkaido Expropriation Committee (The Nibutani Dam Decision)” (1999) 38 International Legal Materials 394Google Scholar
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140. International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, online: OHCHR 〈http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx〉 [CERD].
141. Bortz v. Suzuki, supra note 139.
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143. CERD, supra note 140, art. 2 and art. 6.
144. Arudou, supra note 142 at C2 (emphasis added).
145. Ibid.
146. Ibid., at C3.
147. As reported by I.L.D.C. reporter in Arudou v. Earth Cure, supra note 142. Case No. H 14 (Ne) No. 498, Sapporo High Court, 16 September 2004. Further review by the Supreme Court was denied. Case No. H 15 (O) No. 448, Supreme Court of Japan, 7 April 2005.
148. Ko Otsu Hei Incidents case, Judgment, 27 April 1998, Yamaguchi Lower Court. The plaintiffs had argued that the state had failed to legislate to incorporate international norms of customary character.
149. Constitution of Japan, supra note 131.
150. HENCKAERTS, Jean-Marie and DOSWALD-BECK, Louiseeds., Customary International Humanitarian Law (New York: Cambridge University Press, 2005) at 3565CrossRefGoogle Scholar
151. Ko Otsu Hei Incidents case, Judgment, 29 March 2001, Hiroshima High Court.
152. Constitution of Japan, supra note 131, art. 14.
153. ICCPR, supra note 27.
154. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, online: OHCHR 〈http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx〉 [ICESCR].
155. Kang v. Governor of Osaka, 15 October 1999, 1718 Hanrei Jihô 30, Osaka High Court.
156. Many thanks to Kaku Shun for alerting me to the passive language used by the Osaka High Court.
157. Kayano, supra note 136.
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160. Sunil Babu Pant and others v. Nepal Government and others, Nepalese Supreme Court, Judgment of 21 December 2007, [2008] 2 NJA L.J. 261, 138 I.L.R. 500 [Pant].
161. CERD, supra note 140; ICCPR, supra note 27; ICESCR, supra note 154.
162. Pant, supra note 160.
163. Ibid., at 522.
164. The Constitution of the Kingdom of Nepal 2047 (1990), art. 32 and art. 107(2) [Nepalese Constitution].
165. Pant, supra note 160 at 522, 528.
166. Ibid., at 535.
167. Ibid.
168. Ibid., at 513.
169. Nepalese Constitution, supra note 164.
170. Ibid., art. 107(2).
171. Arudou, supra note 142.
172. Pant, supra note 160 at 504.
173. Ibid., at 522, 528.
174. Prof Nurul Islam and Ors v. Government of the People's Republic of Bangladesh and Ors., Bangladesh Supreme Court, Judgment of 7 February 2000, Writ petition, 52 D.L.R. (2000) 413; I.L.D.C. 477 (BD 2000) [Nurul].
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176. Nurul, supra note 174 at para. 9.
177. Ordinance No. 16 of 1990 for the prohibition of all forms of tobacco advertisements, Bangladesh Gazette, Extraordinary, 25 October 1990.
178. Nurul, supra note 174 at A1 (comment by I.L.D.C. reporter, Abdullah Al Faruque).
179. Ibid.
180. Compare this with Chaudhury and Kendra v. Bangladesh and ors, Bangladesh Supreme Court, Judgment of 19 January 2009, Writ petition, No. 7977 of 2008, 29 BLD (HCD) 2009, I.L.D.C. 1515 (BD 2009), where the Court gave little importance to the state's membership of the United Nations (UN), or of the UN imposing binding duties upon Bangladesh.
181. Compare this with In the case of H.M. Ershad v. Bangladesh, Bangladesh Supreme Court, Judgment of 16 August 2000, Appeal, 21 BLD (AD) (2001) 69, I.L.D.C. 476 (BD 2000) [Ershad], where the Court acknowledged the “non-binding” nature of the Universal Declaration on Human Rights, and therefore only its “persuasive” authority.
182. Nurul, supra note 174 at para. 10.
183. CRC, supra note 130.
184. The Children Act, 1974 (Act No. XXXIX of 1974) [Children Act 1974].
185. CRC, supra note 130.
186. State v. Md. Roushan Mondal Hashem, Bangladesh Supreme Court, Judgment of 9 July 2006, Criminal appeal and death sentence reference, (2006) 26 BLD (HCD) 549, I.L.D.C. 886 (BD 2006) at para. 66.
187. Ibid., at para. 67.
188. Ibid., at para. 74.
189. Compare this with Bangladesh and another v. Hasina and another, Bangladesh Supreme Court, Judgment of 8 May 2008, Appeal judgment, No 46/2008; 60 DLR (AD) (2008) 90, I.L.D.C. 1409 (BD 2008), where a subsequent conflicting emergency order prevented the application of international conventions, notably the ICCPR.
190. Pant, supra note 160.
191. Nurul, supra note 174.
192. Ershad, supra note 181 at para. 2 (Bimalendu Bikash Roy Choudhury J).
193. State v. Metropolitan Police Commissioner, Supreme Court, Judgment of 22 July 2008, Suo Moto Judgment, (2008) 60 DLR (HCD) 660, I.L.D.C. 1410 (BD 2008) [Metropolitan].
194. Children Act 1974, supra note 184.
195. Metropolitan, supra note 193.
196. Ibid., at para. 27.
197. Ibid., at para. 36.
198. At the time of writing this article, Children Act 1974 has been repealed. Yet the Children Act 2012, which is meant to replace it, is still under discussion.
199. Compare the issue of state immunities in China (see pp. 19ff.) with constitutionality claims in Japan (see pp. 23ff.), Nepal (see pp. 27ff.), and Bangladesh (see pp. 30ff.).
200. Compare the special jurisdiction to provide legal remedies in Nepal with the lack of power under the Japanese Constitution to oblige the state to introduce legislation (see pp. 27, 29). Compare the silence of the Chinese Constitution in relation to international law with the commitment of the Japanese Constitution to “faithfully observe[]” international law, and the Philippine Constitution which “adopts the generally accepted principles of international law as part of the law of the land” (see pp. 21, 24).
201. Compare the issue of the perception of impartiality as an element of the judicial function in Malaysia, where courts should make up their own mind with the adoption of the “one voice” theory in China, which requires courts to consult or defer to the Executive; the willingness to instruct the political branches of government to act in Nepal and Bangladesh, where courts provide detailed guidelines versus courts in Japan, where the Diet is often merely requested to legislate; the openness towards the international community in Philippine courts, which recognize custom as “general principles” and thus act as part of the international community versus a foreign perspective of international law in Malaysia and Singapore, where international law is given effect as common law versus a more domestic view in China and Japan, where international law applies to the extent that it is reflected in domestic judicial decisions, domestic law, and domestic representations of the Executive.