A. Flexibility of the “Part”-“Not-Part” Dichotomy

Blackstone claimed that international law forms part of domestic law to the full extent, with the domestic system accepting international law as part of the same legal order. His view appears to have been adopted by Justice Gray in The Paquete Habana, “[i]nternational law is part of our law”.Footnote ¹⁵ It was also explicitly referred to by Lord Denning in Trendtex: “it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law”;Footnote ¹⁶ and Justice Shaw: “[w]hat is immutable is the principle of English law that the law of nations … must be applied in the courts of England.”Footnote ¹⁷ Yet a closer look reveals that whilst Blackstone might not have imposed any limitations on international law forming “part” of domestic law, others did not agree. Lord Denning argued that when Blackstone talked of incorporation, he was referring to rules that had been “universally accepted and known”,Footnote ¹⁸ “the rules of international law only becom[ing] part of our law in so far as they are accepted and adopted by us”.Footnote ¹⁹ As Justice Alverstone explained for these rules of custom, “only that to which we have assented along with other nations in general may properly be called International Law”.Footnote ²⁰ For him, international law can be “accepted as binding”Footnote ²¹ only if a particular proposition had been recognized and acted upon “by our own country”, or had “been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it”.Footnote ²² Unanimous state practice was, therefore, sufficient proof of an international law forming “part” of domestic law. Chief Justice Cockburn rejected this position and insisted that the state must have given its explicit consent in the domestic sphere. Only an Act of Parliament, the Executive, or the Judiciary could turn the international norm into a “part” of domestic law.Footnote ²³ Later, this sentiment was confirmed in Chung Chi Cheung v. The King by Lord Atkin, who held that “as [far as] the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law”.Footnote ²⁴ This condition was fulfilled only when it could be shown that “an established rule … [first] derived from one or more of the recognised sources of international law and, secondly, has already been carried into English law by statute, judicial decision or ancient custom”.Footnote ²⁵ In relation to custom, therefore, the approaches adopted by courts vary considerably.

Even for treaties, the issues are not predetermined with signature or ratification. In the US, courts qualified the provision of the US Constitution which makes treaties “law of the land”,Footnote ²⁶ limiting the enforcement of treaties only to self-executing agreements: “This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law.”Footnote ²⁷ Whether a treaty would be held as self-executing, and thus as having effect automatically as domestic law, is a question on which courts defer and accord “great weight” to the opinion of the Executive, or, as previously shown, follow the instructions of the Legislature.Footnote ²⁸ Effectively, therefore, for a treaty in the US to be “part” of domestic law, and thus binding and enforceable, the political branches have to accept it as such, and have to do so in the domestic sphere, rather than in the international sphere.Footnote ²⁹

In addition to establishing the existence of a specific international rule in domestic law, the term “part” is also used to signify whether the international norm is consistent with pre-existing domestic law. In Trendtex, Lord Denning explained that “the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament”.Footnote ³⁰ This requirement of consistency was not new to English jurisprudence. In many disputes which concerned the actual application of international law as “part” of domestic law and which pre-dated Trendtex, Blackstone's view was qualified, with courts assuming that international rules were to be considered as “part” of domestic law, but allowing evidence to be shown that it was inconsistent with domestic legislation. In West Rand, for example, Lord Alverstone CJ held that the law of nations was part of the law of England only to the extent that it was not “contrary to the principles of her laws as declared by her courts”.Footnote ³¹ Similarly, in Al-Adsani v. Government of Kuwait, it was held that “international law forms part of the law of this country”, except “where the clear language of [a] statute is to the contrary”.Footnote ³² Others rejected the assumption of consistency, and treated it instead as a condition for international law becoming “part” of domestic law. Lord Bingham in R v. Jones (Margaret), for example, insisted that “customary international law is applicable in the English courts only where the constitution permits”.Footnote ³³ Similarly, in Maclaine Watson and Co. Ltd. v. Department of Trade and Industry, the court held that “the rules of international law from time to time in force are automatically incorporated into the common law and, subject always to statute, are supreme”.Footnote ³⁴

Similarly flexible is the question of who determines the consistency between the international and domestic norm. Like the term “part”, which does not guarantee automatic enforcement of international law, the label “non-part” does not automatically preclude actions of compliance on the part of domestic courts. Although Triepel has insisted that the gap between the international and domestic legal orders was complete, the domestic judge, having “neither the duty nor the right to concern himself with the question whether municipal law is in conformity with international law”,Footnote ³⁵ even Lord Hoffmann does not completely preclude the use of international law or the view that it is binding.Footnote ³⁶ Namely, domestic courts can give effect indirectly to an international obligation not forming part of domestic law by construing domestic legislation in accordance with international law. As Lord Diplock averred, such consistent interpretation is “a principle of construction of United Kingdom statutes now too well established to call for citation of authority”.Footnote ³⁷

As a rule, courts interpret domestic law in accordance with international law when there is ambiguity in domestic law. This, they assert, is a “requisite for this doctrine to apply in our courts”.Footnote ³⁸ Yet what constitutes ambiguity varies considerably. Domestic legislation can be ambiguous “in the sense that it is capable of a meaning which either conforms to or conflicts with [international law]”.Footnote ³⁹ In such a case, “the court will”, as even Lord Hoffmann admitted, “other things being equal, choose the meaning which accords with the obligations imposed by the treaty”.Footnote ⁴⁰ As phrased, the rule of consistent interpretation appears to direct only the choice and not the interpretation of the domestic norm. The court provides two separate readings of the domestic norm, which are readings that are independent of international law and which give force to the intent of Parliament.Footnote ⁴¹ From this perspective, the two alternatives are in relation to domestic law and the only point at which international law becomes relevant is when a choice between two available readings has to be made. Other judges, however, insist that consistent interpretation is not limited to situations where domestic legislation is ambiguous, but can also be used when parliamentary intention remains silent, i.e. when there is an “omission”.Footnote ⁴² In these cases, the role of the court is no longer restricted to choosing between different alternatives of interpretation of domestic law, but extends to the construction of domestic norms in a manner which is consistent with international rules:Footnote ⁴³ “the law or the words of the statute under consideration [are interpreted] in the light of the convention”;Footnote ⁴⁴ or “so far as permissible to accord with the Convention”;Footnote ⁴⁵ or “if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.”Footnote ⁴⁶ The contents of the provision of national law are effectively “be[ing] open[ed] to the interpretation in conformity with the norm of international law”.Footnote ⁴⁷

Although “not-part” of domestic law, international rules can, therefore, determine a choice between one or another reading of domestic law, or can, in fact, inform the reading itself.Footnote ⁴⁸ In regard to the latter, courts have insisted that they should read domestic norms in the light of international law “so far as possible”, that is “if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be inconsistent with it”;Footnote ⁴⁹ or if “that is a plausible meaning of the express words”,Footnote ⁵⁰ “so long as they do not defy or disregard clear unequivocal provision” of the Legislature;Footnote ⁵¹ or even, as the Canadian Supreme Court stated, in invoking the African Charter on Human and People's Rights,Footnote ⁵² so as “to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”.Footnote ⁵³ The spectrum of understandings of “so far as possible” reveals no limit to the influence of international law on the meaning of the domestic norm. “The idea of what is possible or impossible in the interpretation of a statute” is dictated or affected by international law: “at the extreme, in this context anything is ‘possible’ provided it can be believed to be in accordance with [international law].”Footnote ⁵⁴

B. State as the Beginning and End of the Judicial Role

What do these understandings of the terms “part” and “not part” say about how judges perceive their role in relation to international law? If judges argue that their capacity to give force to international law is determined by whether international law is “part” of domestic law, what is not apparent is the extent to which, in defining and adapting the term “part”, courts link their own role in relation to international law to the actions of other government branches. Indeed, it is judges themselves who effectively condition their own involvement with the participation of the other government branches. The following discussion reveals how this occurs.

When courts are uncertain about the existence or content of customary international law, for example, they defer to both the Legislature and the Executive for proof of the existence and the government's assent to the international rule. In Banco Nacional de Cuba v. Sabbatino, for example, the US Supreme Court argued that only “codification or consensus concerning a particular area of international law” could render it “appropriate … for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle … not inconsistent with the national interest”.Footnote ⁵⁵ In Sosa v. Alvarez-Machain et al., the Court noted that it had “no congressional mandate to seek out and define new and debatable violations of the law of nations”. As the Supreme Court found, any recognition of the customary rule on arbitrary arrest on its part would amount to “judicial creativity”, which would have had to be approved by the Legislature.Footnote ⁵⁶ Although the Torture Victim Protection Act of 1991Footnote ⁵⁷ provided authority to “‘establish an unambiguous and modern basis for’ federal claims of torture and extrajudicial killing”,Footnote ⁵⁸ which under the Alien Torts Statute “should permit suits based on other norms that already exist or may ripen in the future into rules of customary international law”,Footnote ⁵⁹ the Court insisted that had Congress wanted to encourage claims based on customary rules, it would have actively promoted such suits. Since, however, the Senate had previously expressly declined to give the federal courts the task of interpreting and applying international human rights law, for example, by declaring the substantive provisions of the International Covenant on Civil and Political Rights (ICCPR)Footnote ⁶⁰ non-self-executing at the time of its ratification,Footnote ⁶¹ this implicitly prevented courts from identifying customary rules. The Supreme Court has thus made no apology for confusing customary and treaty law.

Aside from the Legislature, US courts have also deferred to the Executive. When it came to issues of immunity, courts sought and followed the suggestions of the Executive. In Rich v. Naviera Vacuba, for example, the vessel for which the Soviet government claimed immunity was not engaged in activity on behalf of or for the Soviet government. Instead, the purpose of its voyage was purely commercial. Rather than concluding that state practice had developed to such an extent as to permit the application of the restrictive theory of sovereign immunity for commercial activities, instead of the absolute theory, a claim explicitly also accepted by the Executive,Footnote ⁶² the District Court asked the Executive for its position on the case, and deferred to its suggestion that immunity ought to be accorded because continued proceedings would conflict with the national and foreign interest of the state, stating that it was “conclusive upon the court”.Footnote ⁶³ The Court was, therefore, seeking assurance of domestic, rather than international, assent to the new international rule.

Similar involvement of other government branches is required when it comes to treaties. In this situation, domestic courts “are under no duty to apply” international law that is not part of domestic law.Footnote ⁶⁴ Treaties, which have been traditionally regarded as forming no part of domestic law, have to be incorporated into the law by legislationFootnote ⁶⁵ if courts are to have jurisdiction to apply international norms directly as domestic law.Footnote ⁶⁶ Due to an inherent inconsistency between law-making and the constitutional rule of Parliamentary sovereignty in England, an international agreement does not “alter[] the law or confer[] rights upon individuals or depriv[e] individuals of rights which they enjoy in domestic law” without the intervention of Parliament.Footnote ⁶⁷ If courts were to give force to international agreements without the blessing of the Legislature, they would be interfering with or even usurping the function of the Legislature. The necessity to legislate does not arise only in the UK and those countries that deny the direct incorporation of international agreements into the law of the land. Even in those countries that regard international law as automatically part of domestic law,Footnote ⁶⁸ a “national trigger” is required when the international norm is considered not clear and precise enough for domestic courts to apply it directly.Footnote ⁶⁹

Further, when the court is concerned with the content of the treaty, the Executive, not the Legislature, will be consulted. In France, the Conseil d'Etat used to seek the aid of the Ministry of Foreign Affairs when the content of international norms was “unclear”.Footnote ⁷⁰ The Conseil would effectively turn to the Executive for a preliminary ruling since “only the Minister for Foreign Affairs is competent to interpret it”.Footnote ⁷¹ This practice was stopped only in relation to treaties when the European Court of Human Rights found the practice incompatible with the guarantee of a fair trial and an independent tribunal.Footnote ⁷²

Finally, even when courts use the principle of consistent interpretation, which is a tool states have adopted to discharge their international duties,Footnote ⁷³ and which permits courts to invoke international law whether or not it forms “part” of domestic law, courts seek to give the impression that they are acting on the instructions of another government branch dictating to them not to violate international law. They maintain that they are giving indirect effect to international law to “fulfil Her Majesty's Government's obligations under a particular convention”;Footnote ⁷⁴ because “such was the obligation assumed by Her Majesty's Government”;Footnote ⁷⁵ because the “Parliament intends [not] to break an international convention”;Footnote ⁷⁶ or because “the United Kingdom intended to comply with its international obligations under the Convention”.Footnote ⁷⁷ Not to be seen as legislating international law into domestic law, courts seek assurances from the other branches of the need to comply with the state's international obligations or, otherwise, impute such intent to them. It is only in the context of giving effect to the will of another government branch that they recognize their own limited role. As they have stated, “it is the duty of the courts … to construe statutes”,Footnote ⁷⁸ and “it does become the duty of our Courts to look at the international convention and to interpret the law or the words of the statute”,Footnote ⁷⁹ “so as to avoid creating a breach of the State's international obligations”.Footnote ⁸⁰ Often, however, they are more deferential, revealing that they consider themselves “entitled to”Footnote ⁸¹ look at international law but “enable[d] to”Footnote ⁸² comply with international obligations and “permitted to” construct law in conformity with international law.Footnote ⁸³ In both situations, the international obligation is therefore that of the Crown, of Parliament, or indeed of the state as a whole, and courts can only do “our best to see that our decisions are in conformity with it”.Footnote ⁸⁴

A. Judicial Knowledge

The question of judicial knowledge relates to how domestic judges treat international law before they recognize it as applicable in domestic law. In this context, the precondition for giving effect to the international rule is that it is recognized as an international legal rule. If this is not the case, for example if the international rule is denied its international nature, it would then be merely a question of domestic law and can be applied as such. Similarly, if it is denied its legal nature, it would be treated as a political obligation, as opposed to a legal one. In both situations, the conclusion is to invite the other government branches to provide the answers, by asking the Executive to decide the political question and the Legislature to dictate domestic law.

This is the case in the UK and the US. Is the situation the same in Asia? When a rule of custom is invoked before Asian courts, like the doctrine of restrictive state immunity, do courts in China, Japan, Singapore, and Malaysia recognize the legal nature of international rules to be applied? When establishing the existence and content of international rules, do judges of these jurisdictions seek to ascertain these rules by reference to international materials or do they defer to the other government branches?

Even if, on the face of the case, international customary rules may appear to be given force, they are not necessarily recognized as “international”. For example, in 2005, a Tokyo district court was asked to rule in a dispute over intermediary contracts entered into by Saudi Arabia with a company, Interquest, which was responsible for acquiring property to be used as the Saudi embassy in Japan. The question before the District Court was whether the doctrine of restrictive immunity applied, and whether, as a consequence, the intermediary agent Interquest could sue Saudi Arabia before Japanese courts. The Court remained silent as to Japanese international practice and disregarded the practice of other states in recognizing a commercial exception to absolute immunity. Instead, it relied on the statement of the Supreme Court decision of 2002 in Yamaguchi v. United States,Footnote ⁸⁸ where it was held that “the state practice of limiting the scope of immunity is being accumulated”,Footnote ⁸⁹ and therefore the doctrine was “worthy of hearing”.Footnote ⁹⁰ Citing this obiter dicta almost word-for-word, the District Court found that “the restrictive immunity principle … is appropriate … [since] the scope of states’ activities has expanded and states have come to become engaged in commercial activities on equal footings with the general private persons”. Judicial protection of “private persons who become a counterpart of a transaction with a state” was, therefore, necessary.Footnote ⁹¹

The Tokyo District Court did not recognize the international nature of the question, but rather acted on the basis of the implicit recognition of the rule by a higher domestic court.Footnote ⁹² Although the Supreme Court merely mentioned the doctrine in Yamaguchi, the lower court read the obiter dicta “as having paved the way for the restrictive immunity principle to replace the absolute immunity principle”.Footnote ⁹³ In the end, what was applied by the District Court in Interquest was not international law, but rather a domestic judicial decision.

In a similar vein, a question that arises in the former colonies of the British Empire is whether customary rules of international law should be applied as part of domestic law because they form part of the English common law, or whether their international nature has to be established with reference to the new state regardless of their position in the English common law. In Malaysia, for example, Section 3 of the Civil Law Act 1956 provides that Malaysian judges apply the common law as administered in England on 7 April 1956.Footnote ⁹⁴ In this context, parties before Malaysian courts have relied both on the common law of England as a source of customary international law, as well as directly on international law. Invoking such rules as the right to innocent passage or the rule of restrictive sovereign immunity, they argued that it “was self-evident that such customary law”—either as customary law of England or as customary international law—“was part and parcel of Malaysian law”.Footnote ⁹⁵

In response to this argument, the Malaysian courts asserted at first that the common law, as applied as domestic law under the Civil Law Act 1956, had to be applied as it was on 7 April 1956, which was the cut-off date provided by the Act for the application of the English common law as part of Malaysian domestic law.Footnote ⁹⁶ In relation to the doctrine of restrictive immunity, this meant that “Section 3 of our Civil Law Act 1956 leaves no room for any doubt that we in Malaysia continue to adhere to a pure absolute doctrine of State immunity”.Footnote ⁹⁷ The Court came to this conclusion despite the fact that under the common law by the time of the decision, the English Court of Appeals in Trendtex had held that the absolute immunity rule no longer applied to commercial transactions.Footnote ⁹⁸

Only three years later, Malaysian courts revisited the question. In Commonwealth of Australia v. Midford, the Court held that although the doctrine of absolute sovereign immunity at common law in the United Kingdom was applicable in Malaysia by virtue of the Malaysian Civil Law Act 1956, this did “not mean that the common law … as applied in this country must remain static and [] not develop”.Footnote ⁹⁹ In fact, the common law had developed in the UK from the theory of absolute immunity in 1956 to the theory of restrictive sovereign immunity, which came to be applied in 1977. In referring to Trendtex, the Court stated:

The restrictive immunity, therefore, applied not because the international rule had changed, but instead because the new international custom had been recognized as part of the English common law. This new common law—rather than the international rule—therefore applied as part of Malaysian law. In these cases, which arise not only in Malaysia, but also in Hong Kong, India, and elsewhere,Footnote ¹⁰¹ the courts are not applying or establishing international law. The Malaysian Supreme Court (now renamed the Federal Court of Malaysia), for example, is clearly not concerned with determining the practice of states worldwide or the position of its own state. Instead, the focus is on the status, content, and development of the rule at common law.

Another manner in which courts can refuse to engage with international law as law is by treating the existence and content of the international rule not as a legal, but as a political issue. In 2011, in Democratic Republic of the Congo and Others v. FG Hemisphere Associates LLC,Footnote ¹⁰² the Court of Final Appeal of Hong Kong Special Administrative Region (HKSAR) was asked to apply the rule of restrictive immunity as it had done before the resumption of sovereignty by China in 1997 pursuant to the UK State Immunity Act 1978.Footnote ¹⁰³ Yet, in 2011, the UK State Immunity Act was no longer applicable since it had ceased to have effect in 1997. The question was, therefore, whether it was open to the courts of the HKSAR to adopt a legal doctrine of state immunity, which recognizes a commercial exception to absolute immunity pursuant to the common law.Footnote ¹⁰⁴

In contrast to Malaysian courts, the Court of Final Appeal ruled that the question of immunity was not one for judges—whether Chinese or those of the courts of HKSAR—to decide. Reflecting on “[W]ho—that is, which branch of government—should be responsible for providing the answers and therefore laying down the state's policies on state immunity?”,Footnote ¹⁰⁵ the majority found that this question is answered differently depending on the constitutional allocation of powers,Footnote ¹⁰⁶ and in the People's Republic of China this question is one of policy to be “determined by the executive”:Footnote ¹⁰⁷ “[I]t is not for the Court to express its opinion about the appropriateness of the [state's] policy of absolute as opposed to restrictive immunity. The municipal courts are simply not equipped to make such a judgment.”Footnote ¹⁰⁸ Instead, courts have to “accord[] precedence to the executive under the ‘one voice principle’”, and treat its statements as “generally acceptable”, ensuring not to embarrass the Executive in the conduct of foreign affairs and in relation to “facts of state … peculiarly within the cognizance of the Executive”.Footnote ¹⁰⁹ In response to argument that it was for the domestic court and not the Executive to define the scope of and exceptions to state immunity by reference to legal precedent, the Court insisted that it was not abdicating its “proper judicial role” by deferring to the Executive, but rather preventing divergent actions which could have an adverse effect on China. From case to case, the Court would thus seek the Executive's position on immunity and treat its opinion as dispositive, thus allowing the Executive to tailor its response to a dispute involving a foreign state on an individual basis.Footnote ¹¹⁰

It is clear from this that the Hong Kong Court of Final Appeal upheld the absolute immunity doctrine not because it was the applicable international rule espoused by the Chinese government in international law, but rather because it found that the question was one of a political nature. By doing this, it decided to forgo any recognition of the legal nature of the question. Namely, the question before the HKSAR Court was not only whether to apply the common law or follow the position of the Chinese government, it was also whether to distinguish between the legal and the political aspects of the position of the Chinese government. Had the Court “translated” the letters sent by the Chinese Foreign Ministry into law, it would have found that the Chinese government had always claimed the same immunities for itself before foreign domestic courts as it had conferred upon other states.Footnote ¹¹¹ In this sense, its position in the international plane was unmistakable—it espoused absolute immunity and persistently rejected the commercial exception to this doctrine. Had the Court treated the question as one of (international) law, it would have reached the same result as it did, concluding that Congo was entitled to immunity. By deferring to the Executive, it allowed the latter to decide the question, which some would argue meant that the Court had given up its judicial role of treating international law as law.Footnote ¹¹²

This conclusion, however, does not apply in all circumstances in which customary international law is invoked,Footnote ¹¹³ or in all Asian courts. Courts in the Philippines, for example, have taken it upon themselves to determine whether the international norm in question is “part” of domestic law, whether a rule of customary law exists both internationally and domestically, and what its precise content is. Relying on Article 2 of the Constitution, which states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land”,Footnote ¹¹⁴ courts have constructed the term “general principles” as referring to customary international law, stating that, “[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land … The classical formulation in international law sees [] customary rules accepted as binding”.Footnote ¹¹⁵ In this context, in Bayan Muna v. Romulo the Court sought to determine whether custom exists by counting the number of signatories to the Rome Statute of the International Criminal Court.Footnote ¹¹⁶ The precise rule they were seeking to establish was whether the prosecution of an internationally recognized crime of genocide should be handled by a particular international criminal court. At no point does the Court refer to the political branches or to the international position of the state.Footnote ¹¹⁷

The Judiciary's initiative to act without the Executive's involvementFootnote ¹¹⁸ is motivated by the Constitution's commitment to the international community. As a country that “renounces war as an instrument of national policy”, it argues, the Philippines cannot act in a “hermit-type isolation … from the rest of the world”, but “as a member of the family of nations”.Footnote ¹¹⁹ The reading of customary international law into domestic law ensures that the state keeps pace with the international community. In this context, courts, although “not organs of the State for expressing in a binding manner its views on foreign affairs, they are nevertheless organs of the State giving, as a rule, impartial expression to what is believed to be International Law”.Footnote ¹²⁰

B. Judicial Integration

The principle of consistent interpretation is today considered a judicial duty, developed through the case-law, according to which courts have to follow the intent of the Legislature, or more broadly the state, in complying with its international obligations. It arises from the presumption that the Legislature does not intend to violate the state's international commitments, and as a consequence domestic law should be read in accordance with international law, even when the latter is not considered to form “part” of domestic law. Is the principle of consistent interpretation applied by Asian courts? Do courts in China, Japan, Nepal, and Bangladesh consider themselves bound to use international law to interpret domestic law? Do they consider it their responsibility to give indirect effect to the international obligation of the state? And how far are they willing to go in securing compliance?

In China, the principle of consistent interpretation does not appear in judicial decisions. When interpretation in accordance with an international rule is sought in foreign-related civil and commercial cases (pursuant to the General Principles of Civil LawFootnote ¹²¹),Footnote ¹²² the international rule is not mentioned until a “difference”, i.e. a conflict, has been identified between the international and the domestic norm. Therefore, in Ferrero v. Mentresor, a dispute concerning unfair competition between a Chinese company and a foreign company, the Supreme Court was asked to read the Law of the People's Republic of China Against Unfair CompetitionFootnote ¹²³ in accordance with the Paris Convention for the Protection of Industrial Property.Footnote ¹²⁴ The Court held that since “no difference concerning the specific issue being dealt with in the particular case” could be identified between the international and domestic law, there was no need to invoke the particular international treaty.Footnote ¹²⁵ Some commentators have suggested that this means that the Court treated the lack of a conflict between the two sets of norms as entailing a presumption that domestic law had transformed the international treaty obligation into Chinese law.Footnote ¹²⁶ Yet it is questionable whether such silence always leads to courts giving the international norm indirect effect.Footnote ¹²⁷ If a court ignores the international rule until it conflicts with the domestic, this means that parties may be unable to argue about the existence and content of international law before the court and therefore they may not influence the court's reading of domestic law as they would wish. This, in turn, can lead to a different outcome than had international law not been ignored.Footnote ¹²⁸ Therefore, the line between giving “concealed” indirect effect to an international rule and avoiding the international argument altogether may often be very fine.

The importance assigned to a reference to the international norm was noted recently when the Supreme Court of Japan for the first time in its history invoked the ICCPRFootnote ¹²⁹ and the Convention on the Rights of the Child (CRC).Footnote ¹³⁰ Although scholars have argued that international human rights provisions, which are deemed sufficiently precise, have domestic effect in Japan pursuant to Article 98(2) of the Constitution,Footnote ¹³¹ the Supreme Court, until recently, simply ignored claims based on international human rights treaties. This changed in 2008 in X v. Japan, where the Court was asked about the constitutionality of the Nationality Act, which drew a distinction between children born in and out of wedlock.Footnote ¹³² Referring in passing to the two treaties, it stated:

Finding the statutory provision unconstitutional, the Court set a precedent for indirect application of international human rights provisions in Japanese courts.Footnote ¹³⁴

Yet even before the principle of consistent interpretation was given any precedential value by the Supreme Court,Footnote ¹³⁵ lower Japanese courts declared themselves duty-bound to give international obligations of the state indirect effect. In Kayano et al. v. Hokkaido Expropriation Committee,Footnote ¹³⁶ the Sapporo District Court declared illegal the Japanese government's expropriation of the Ainu minority's land for the construction of a large-scale dam. The Court argued that the Constitution made it mandatory that all obligations undertaken by Japan had to be faithfully observed and required that domestic acts and legislation be read in accordance with ICCPR.Footnote ¹³⁷ In this context, the Court used the term sekimu,Footnote ¹³⁸ indicating that a responsibility which had been undertaken by the state had created a duty. When “the state or organization did not take the measures that it should have”, as was clearly established by a Japanese court in another case, this duty to ensure the compliance of the state's international obligations lay with domestic courts.Footnote ¹³⁹

Nevertheless, the question remains as to what a domestic court can do once it has found that an international obligation exists. What remedy can a domestic court provide if it finds the domestic and international norms in conflict? In Bortz v. Suzuki, for example, a plaintiff brought a claim against a jewellery shop owner who had not allowed a foreigner to enter his shop. The Court found that the foreigner had been discriminated against, and this was behaviour that violated the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).Footnote ¹⁴⁰ Although Japan had ratified but not incorporated the CERD, the Ministry of Foreign Affairs had maintained that “[n]ew legislative measures and budgetary measures are not needed to effectuate this treaty”. The Court, “assuming the opinion of the Ministry of Foreign Affairs—that no legislative measures are necessary”, found that “the text of CERD should be used as the interpretative standard”.Footnote ¹⁴¹ Giving effect to the intent of the Legislature, the Court awarded compensation to the plaintiff.

A similar conclusion was reached in Arudou v. Earth Cure, where a foreigner who was not allowed into the bathhouse that admitted only Japanese citizensFootnote ¹⁴² sued the bathhouse for discrimination. Reading domestic law in accordance with international law, the District Court found for the plaintiff, awarding him damages. Yet when in Arudou the plaintiff also filed a suit against the city of Otaru for failing to legislate against discrimination, the Court rejected the case. The plaintiff argued that the city of Otaru had a duty to pass an ordinance banning discrimination through the use of force and penalties under Articles 2 and 6 of CERD, which obligates Member States to end the uniform exclusion of foreigners.Footnote ¹⁴³ By failing to do so, it had acted illegally. The District Court disagreed:

The obligation undertaken by the state is therefore not to be interpreted as imposing a “clear and uniform obligation to prohibit and bring to an end specific acts of racial discrimination by enacting laws between individual citizens”.Footnote ¹⁴⁵ Instead, the District Court held that “issues such as which measures to take, and how to implement them, are properly left to the discretion of Otaru”.Footnote ¹⁴⁶ Since the city had taken various measures, such as holding meetings and advising public baths to desist from their exclusionary policies, the Court found that the city had not breached Japanese obligations under international law. This first instance decision was affirmed by the Sapporo High Court.Footnote ¹⁴⁷

In Arudou, Japanese courts revealed that in cases involving the principle of consistent interpretation, a distinction is drawn between private disputes and those involving the state. In private disputes, where the state is absent, courts can give indirect effect to international norms on the basis of declarations made by government officials on the basis that incorporation is not required. Even when such assurances are not provided, the courts can impute to the government the intent to comply with its international obligations and to enforce international rules against private individuals. In both situations, the absence of the state from proceedings means that courts can be assertive and award compensation or some other remedy to the affected party.

The situation is different in disputes where the government is a party to the proceedings, and where it has made its position, as well as the potential problems which can arise if the Judiciary involves itself in the matter, clear. In 1998, in the Ko Otsu Hei Incidents case, which involved the treatment of three “comfort women” from the Republic of Korea in relation to their forced prostitution during World War II, the Yamaguchi Lower Court ordered the Japanese government to pay 300,000 yen to each of the three women, finding that the acts in question constituted severe violations of human rights and human dignity.Footnote ¹⁴⁸ In the proceedings, the Japanese government had accepted its obligation to compensate, and the Court found that since it had failed to adopt legislation to compensate the victims, it was in breach of the Constitution.Footnote ¹⁴⁹ On appeal, however, the Hiroshima High Court in 2001 reversed the decision, finding that the Japanese Constitution did not oblige the state to apologize or introduce legislation to provide for compensation. Even though the government had acknowledged that it was liable to provide compensation, how this was to be achieved was “a policy decision within the discretionary power of the legislature”.Footnote ¹⁵⁰ Thus, even if domestic law is interpreted in accordance with the state's international obligations, Japanese courts are unwilling to dictate to the Executive how it should meet its obligations. Whilst the Court is willing to acknowledge and “understand [applicants’] dissatisfaction caused by the State's omission of legislation”,Footnote ¹⁵¹ it feels incompetent to award compensation directly on the basis of international law, or to order the Executive to pass legislation in order to enforce its international obligations domestically.

In Japan, therefore, in cases involving the state, international law can be used at most as a reminder to the government about the appropriate reading of domestic law. In Kang v. Governor of Osaka, the Osaka High Court was asked to read Article 14 of the Japanese ConstitutionFootnote ¹⁵² in accordance with the right to equality enshrined in the ICCPRFootnote ¹⁵³ and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).Footnote ¹⁵⁴ The Court stated that the exclusion of Korean residents, who do not possess Japanese citizenship, from various forms of social welfare and pension “may have violated” the Constitution, as well as the ICCPR, and that accordingly “the Diet is requested to take legislative measures to correct the legal treatment of these people”.Footnote ¹⁵⁵ The Court would therefore not legislate in the place of the law-makers; it would instead use passive language to urge the Legislature to act.Footnote ¹⁵⁶ Although the conclusion was not as tentative as in Kayano, where the Sapporo Court found the expropriation by the government illegal,Footnote ¹⁵⁷ the relief sought by the plaintiffs to revoke the government's expropriation orders and prevent the completion of the dam was not granted. Again, the Court did not interfere with the policy decisions made by the government; it merely pinpointed the appropriate reading of the law. In this context, whilst the plaintiffs were vindicated by the Court's declaration of illegality, the government did not suffer any losses. As noted by commentators, both sides declared victory in the case.Footnote ¹⁵⁸

The treatment of cases involving the state by Japanese courts can be contrasted with the approach adopted by Nepalese and Bangladeshi courts, whereby judges consider as their own the international obligations undertaken by the state, triggering a duty to internalize international law into domestic law.Footnote ¹⁵⁹ For example, in Pant v. Nepal, petitioners and representatives of organizations established for the protection of the interests and rights of LGBTI (lesbian, gay, bisexual, transgender, and intersex) individuals argued that the state had discriminated against Nepalese citizens with homosexual orientation and transgender identity, when it failed to provide for protection and promotion of their rights and interests under Nepalese law.Footnote ¹⁶⁰ Although there was no clear law criminalizing homosexuality, the petitioners argued that state mechanisms were discriminatory due to negative societal attitudes, the definition of unnatural coition that criminalized same-sex marriage, and the lack of legal acceptance. For third-gender identity people, for example, the domestic law concerning citizenship made no effort to recognize them, and they were therefore left without identity papers. In their petition, the representatives of the organizations sought legal provision for third-gender identity and for the protection of LGBTI people's fundamental rights. They insisted that such discrimination against citizens on grounds of sexual orientation and gender identity was incompatible with Nepal's international obligations under the ratified CERD, ICCPR, ICESCR,Footnote ¹⁶¹ and other treaties, and that Nepal had to internalize international practices concerning minority rights.Footnote ¹⁶²

In response, the Nepalese Supreme Court stated that once the state has signed and ratified international treaties and conventions, “the responsibility to implement the obligations created by [such] conventions [] vests in the Government of Nepal”.Footnote ¹⁶³ Yet in cases where the government has failed to make any efforts to provide for relevant legislation in domestic law and to ensure an appropriate environment for the protection and enjoyment of the rights and interests of these minorities, it was for domestic courts to act. If the Executive does not fulfil its constitutional responsibility, the Nepalese Constitution provides individuals with a right to a constitutional remedy and grants power to the Supreme Court to exercise extraordinary power for the enforcement of legal rights for which no other remedies have been ensured.Footnote ¹⁶⁴ It is in this context that the Supreme Court concludes: “We [] should internalize the international practices in regard to the enjoyment of the right of an individual … Otherwise, our commitment to the human rights will be questioned internationally.”Footnote ¹⁶⁵ It issued a directive order to the Nepal government, instructing it:

In relation to gay marriage, the Court also insisted that before any legislation is passed, the government has to conduct:

In its instructions to the government, the Supreme Court went so far as to dictate how the committee responsible for carrying out the study ought to be assembled (that it should include a medical doctor, a national human rights commission representative, police, etc.) and that the government should report to the Court with its findings.

In comparison to the Japanese courts, the Nepalese Supreme Court appears very assertive. Finding that the government is responsible for making international law operative domestically, the Supreme Court justices did not content themselves with reminding the government of its duties. Instead, they issued a directive order instructing it to legislate. Even more, in relation to gay marriage, the Court did not allow the government to develop its policy position through the usual process. Again, the Court went further. It dictated how this governmental policy decision ought to be drafted—by a neutral committee conducting a study of international instruments, practices, and values developed in the world. Any formulation of policy made by the government required the Executive to “keep in mind fundamental rights and directive principles and policies … of the Constitution and conventions relating to the human rights which are ratified by the country”.Footnote ¹⁶⁸

It may be argued that the Nepalese Supreme Court's approach is largely motivated by the explicit provision in the Constitution which allows it to enforce legal rights for which no other remedies have been provided by the state.Footnote ¹⁶⁹ This effectively invites the Court to create a legal remedy for a successful petitioner. Yet the weight of the decision can only be appreciated if we look beyond the constitutional mandate. Namely, before a legal remedy can be accorded under Article 107(2) of the Constitution,Footnote ¹⁷⁰ courts have to recognize that a particular legal right exists. Whilst Japanese courts refer to the provisions of international treaties as imposing political obligations but not creating individual rights (at least vis-à-vis the government),Footnote ¹⁷¹ the Nepalese Supreme Court accepts the legal nature of the rights contained in international agreements. It states this in no uncertain terms when finding the state responsible for ensuring “appropriate legal provisions for the enjoyment of those rights provided by national laws, the Constitution and international human rights instruments”.Footnote ¹⁷² Although it is unclear whether the Court is referring to itself or to the State of Nepal when it asserts “[w]e [] should internalize”, the sentiment expressed is clear—without legislation, the state has failed in its international commitments. If the government has failed to act, Nepalese commitments to the international community compel the Supreme Court to intervene. In the end, the constitutional mandate only permits the Court to be creative in giving force to an already existing legal right.

The responsibility to “internalize”, which the Court feels compelled to accept, is closely tied to the concern about the state's membership in the international community. If the Court fails to act, “our commitment to the human rights will be questioned internationally”.Footnote ¹⁷³ This outward-looking judicial perspective is not isolated to the Nepalese Supreme Court. The reactions of Bangladeshi courts are incredibly similar. In Nurul v. Bangladesh,Footnote ¹⁷⁴ the petitioner called upon the government of Bangladesh to enact legislation for the prohibition of all forms of tobacco advertisements. Amongst other arguments, Professor Nurul insisted that Bangladesh ought to comply with the World Health Organization (WHO) resolutions urging member countries to formulate national tobacco control strategies to create and develop effective machineries for co-ordinating and supervising programmes for the control and prevention of smoking. As a member of the WHO, he argued, Bangladesh was duty-bound to give effect to the organization's resolutions.

Disregarding the non-binding nature of WHO resolutions,Footnote ¹⁷⁵ the Supreme Court unanimously accepted the petitioner's argument. Reflecting on the constitutional obligation imposed upon the state to respect international law, the Court found that, as a Member State of the WHO, “Bangladesh is morally duty bound to give effect to its resolutions”.Footnote ¹⁷⁶ Yet previous attempts to legislate in the area had failed. Although the government promulgated an Ordinance prohibiting the advertisement of tobacco products,Footnote ¹⁷⁷ this was not placed before Parliament within the specified period to make it into law, and thus it lapsed. In the absence of specific domestic legislation giving effect to the international obligations, the Court could not remain blind to the government's failure to undertake preventive measures. Instead, it used international law “as a tool for imposing a duty upon the state to take prohibitive action”.Footnote ¹⁷⁸ In the operative part of the decision, it ordered the government to legislate in accordance with international law, outlining step by step the measures to be taken (how the production of tobacco leaves has to be stopped, the importation of cigarettes banned and the prohibitions in their advertising, and the appropriate authorities to be empowered to ensure compliance with the new rules).Footnote ¹⁷⁹

Like the Nepalese court, the Bangladesh Supreme Court felt compelled to act. Since the state was a member of the WHO,Footnote ¹⁸⁰ the Court insisted that it was morally bound by WHO resolutions. How the term “morally” affected Bangladesh's international obligations is unclear, but the Court failed to distinguish between binding and non-binding international law.Footnote ¹⁸¹ Instead, it put itself right at the heart of the matter (e.g. by using the term “we”) and criticized the government's failure to implement such necessary measures as the state's membership of the WHO required: “we are of the view that the government should have taken appropriate steps for banning/restricting advertisement and promotion of cigarettes.”Footnote ¹⁸² In the absence of governmental action, the Court had to intervene and order the government to take action.

The active intervention of the Court in Nurul could be, at least, partially attributed to the fact that the proposed legislation had lapsed before Parliament had the chance to turn it into law. Since the Legislature had failed to act, this allowed the Court to intervene and provide instructions on how the gap ought to be filled. Yet the same cannot be said of State v. Mondal, a case concerning the treatment of juveniles accused of offences for the infringement of penal laws. Under domestic legislation, Bangladesh provided for a high level of protection of minors even before signing up to the CRC.Footnote ¹⁸³ The Children Act 1974 stipulated that only the Juvenile Court could try offences committed by a child below the age of sixteen years, and that minors would be treated and kept separately from adults from the time of their apprehension, during the trial, and during confinement. Most of all, however, juveniles could not be sentenced to death.Footnote ¹⁸⁴

The case concerned a minor below the age of sixteen at the time of the framing of the charge, who had been convicted and sentenced to death by a Special Tribunal assuming the role of Juvenile Court. Applying domestic law, the Supreme Court held that the Tribunal had contravened the procedures of the Children Act 1974, and set aside its conviction. In the course of deliberations, however, the Court went further than was required for the resolution of the case. Although the parties had not explicitly relied on international treaties, the Court invoked them of its own volition, and considered especially the provisions of the CRC.Footnote ¹⁸⁵ It noted that:

As a signatory to the convention, the Court stated that Bangladesh was “duty bound to reflect” its provisions in national laws, and that “[w]e are of the view that the time is ripe for our legislature to enact laws in conformity with the UNCRC”.Footnote ¹⁸⁷ The Court then suggested that the decision be sent to the Minister so that he could consider proposing an enactment of a new law regulating the treatment of minors in criminal proceedings. In its instructions, the Court went as far as to suggest that the new law ought to give the existing Juvenile Court a more neutral name, e.g. Children's Justice Panel.Footnote ¹⁸⁸

What is striking about this decision is the fact that the domestic Court identified no conflict between the domestic and international law.Footnote ¹⁸⁹ In both Pant v. Nepal Footnote ¹⁹⁰ and Nurul v. Bangladesh Footnote ¹⁹¹ such a conflict was established, and the international norm was therefore relevant, if not crucial, to the plaintiff's case and the final outcome. In State v. Mondal the situation was different. Domestic authorities had violated domestic law and the plaintiffs limited their case exclusively to the protections accorded by domestic law. At first sight, the Court was therefore not compelled to deal with or even refer to the norms of international law. Yet it did so of its own volition. Identifying no inconsistencies between international and domestic law, it merely mentioned potential “difficulties” if domestic law continued to be applied without amendment in the light of the ratification of the CRC. In doing so, it went further than in Ershad, where the Court had defined its role as “to respect the national laws, but [to] draw the attention of the lawmakers to [] inconsistencies”Footnote ¹⁹² between international and national law. If this role has now extended to indicating “difficulties”, these could arguably be avoided through consistent interpretation as long as there is no direct conflict with the treaty. Does the Court, however, consider this principle of consistent interpretation sufficient?

The precise position of the Supreme Court vis-à-vis the CRC is clarified in State v. Metropolitan Police Commissioner,Footnote ¹⁹³ which revisited the failure of the Legislature to formulate a new law to give effect to the convention. Decided two years after State v. Mondal, it concerned the prosecution of a nine-year-old girl and the failure of the police to release her on bail to her parents in contravention of the Children Act 1974.Footnote ¹⁹⁴ The question before the Court was whether, given the failure of the Legislature to incorporate the CRC, and thus to allow children to be released on bail, the international norms can nevertheless apply. The Court found that the Children Act 1974 provided no beneficial protection accorded to children as required by the Convention to act in the best interest of the child. This discrepancy did not present a conflict between international and domestic law, therefore the gap in the law could be filled. The Court then proceeded to interpret the silence of the Legislature in accordance with the Convention, ruling in accordance with what was in the “best interest” of the child.Footnote ¹⁹⁵

The application of the principle of consistent interpretation achieved the same result as if the Legislature had enacted a law giving force to the CRC. For the Court, however, this was clearly not sufficient. As in State v. Mondal, it was not satisfied that Bangladesh had failed to implement the convention. It reiterated that the state “is bound to take steps for implementing” the international agreement, stating that “Bangladesh was one of the first signatories to the Convention … we cannot ignore, rather we should, so far as possible, implement the aims and goals of the UNCRC”.Footnote ¹⁹⁶ Going further than before, the Court provided in the operative part of the judgment strict instructions to the Legislature to consider amending the old law, or formulating new ones “giving effect to the provisions of the UNCRC, as is the mandate of that Convention upon the signatories”.Footnote ¹⁹⁷ Again using the term “we”, it reminded the state of its obligation to reflect the requirements of the Convention in domestic law.Footnote ¹⁹⁸