International Law in the Courts of Asia Presentation

International Law in the Courts of Asia

1. A Framework for Analysis International Law in the Courts of Asia

2. Object To understand the judicial aspect of State Practice in the application of international law to domestic settings of the various Asian states.

3. assumptions There are few, if any, monist states in Asia. Most states adopt a dualist approach to the incorporation of international law norms in a domestic setting Courts are constitutionally the proper branch of government to determine the application of law – international or municipal In the process of deciding the extent to which international law is part of domestic law, courts invariably pronounce on what it (and hence the state) considers to be substantive rules of international law

4. Doctrine & practice TREATIES When states enter treaties, they do so in full knowledge of their existing domestic laws and situations and expected to honour their treaty obligations As such, substantive rules in treaties must become part of domestic law either by self-execution or transformation Challenge : Determining exactly what the treaty obligations are, and what the extent of the substantive rule of law sought to be incorporated is.

5. Doctrine & practice TREATIES Rules in international treaties to which the state is not a party may still be part of domestic law if it is customary international law or ergo omnes What are a state’s obligations to binding resolutions of the UN Security Council? To what extent do these resolutions form part and parcel of domestic law

6. Doctrine & practice CUSTOMARY INTERNATIONAL LAW Before deciding if a rule of customary international law applies, courts must first determine whether the rule sought to be applied is in fact a rule of CIL Does CIL apply as a matter of course or must it be held to apply by the courts? What happens if there is applicable and contradictory domestic legislation? What is the applicable ‘legal hierarchy’?

7. Doctrine & practice INTERNATIONAL SOFT LAW By definition, international soft law is not binding in any way, so the main questions are: How do courts treat soft law? How do courts use soft law How does soft law impact the way courts interpret local law?

8. Doctrine & practice SOME GENERAL QUESTIONS Why have courts been generally more willing to apply international law norms in relation to human rights cases? Do courts treat ‘regional’ international law norms differently from ‘global’ international law norms? If so, why? Is there any difference between the way common law courts and civil law courts treat international law? What are the current trends in judicial interpretation and where is this leading to? Are there ‘regional’ characteristics or patterns of judicial behaviour?