Domestic Application of International Law: Focusing on Direct Applicability

344 Pages·2022·2.804 MB·English

by  Yuji Iwasawa

Domestic Application of International Law
International Law

in Japanese Perspective
Series Editor
Yuji Iwasawa
volume 15
The titles published in this series are listed at brill.com/iljp
Domestic Application

of International Law
Focusing on Direct Applicability
By
Yuji Iwasawa
LEIDEN | BOSTON
The Library of Congress Cataloging- in- Publication Data is available online at https://cata log.loc.gov
lc record available at https://lccn.loc.gov/2022914947
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-t ypeface.
issn 0929- 7111
isbn 978- 90- 04- 50986- 3 (hardback)
isbn 978- 90- 04- 52340- 1 (e- book)
Copyright 2023 by Koninklijke Brill nv, Leiden, The Netherlands.
Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink,
Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher. Requests for re- use and/ or translations must be
addressed to Koninklijke Brill nv via brill.com or copyright.com.
This book is printed on acid- free paper and produced in a sustainable manner.
Contents

P reface ix
A bbreviations xii
T able of Cases xiii
1 I ntroduction 1
A I ncreasing Importance of the Domestic Application of
International Law 1
B I ncorporation of International Law 3
C D ifferent Sources of the Concept of Direct Applicability 8
2 C oncept of Direct Applicability: The International Approach 12
A A dvisory Opinion of the Permanent Court of International Justice
on Jurisdiction of the Courts of Danzig 12
B T he International Approach 15
1 T he International Covenant on Civil and Political Rights 17
2 T he International Covenant on Economic, Social and Cultural
Rights 22
3 T he European Convention on Human Rights 28
4 T he American Convention on Human Rights 34
5 T he Genocide Convention 36
6 T he European Social Charter 37
7 T he ilo Conventions 41
8 T he Paris Convention for the Protection of Industrial
Property 45
C P roblems of the International Approach 47
3 T he Doctrine of Self- Executing Treaties in the United States 50
A C oncept 50
1 D irectly Applicable and Executed without Legislation 50
2 D irect Applicability and Domestic Legal Force of
International Law 54
(a) D istinguishing Direct Applicability and Domestic Legal
Force 54
(b) R elationship between Direct Applicability and Domestic
Legal Force 54
3 C reation of Individual Rights 56
B Q uestion of Domestic Law 60
vi Contents
C C riteria 62
1 S ubjective Criteria 62
(a) I ntent of the Parties 62
(b) E xecutive Intent 71
(c) L egislative Intent 72
(d) D eclarations 74
2 O bjective Criteria 76
(a) P recision 76
(b) S ubject Matter 78
(c) L egal Obligations 80
(d) P olitical Treaties 80
(e) I nternational Procedures for Enforcement 82
(f) F ormal Addressee 83
(g) L anguage of Contract 83
D R elative Approach 84
4 D irect Effect of European Union Law 90
A C oncept 90
1 O rigin of the Concept 90
2 D irect Effect and Direct Applicability 92
3 C reation of Individual Rights 94
B Q uestion of EU Law 96
C C riteria 98
1 S pirit, General Scheme, and Wording 98
2 P recision 100
3 A bsence of Discretion 101
4 U nconditionality 103
5 O ther Criteria 104
(a) P rovisions Calling for Implementation 104
(b) F ormal Addressee 105
(c) I nternational Procedures for Enforcement 106
(d) L egal Obligations 107
D R egulations, Decisions, Directives, and International
Agreements 107
1 R egulations, Decisions, and Directives 107
2 I nternational Agreements 109
E R elative Approach 118
1 C ontextual Determination of Direct Applicability 118
2 T he Review of Legality of Member States’ Administrative or
Legislative Actions 120
Contents vii
3 E xclusion Effect and Substitution Effect 125
4 E xclusion Effect and Direct Effect 127
5 P rimacy and Direct Effect 132
6 O ther Effects 133
F D irect Applicability in EU Law and International Law 137
5 D omestic Application of International Law: A Framework of
Analysis 143
A C oncept of Direct Applicability of International Law 143
1 C onfusion of Concept 143
2 D irect Applicability and Domestic Legal Force of
International Law 148
(a) D istinguishing Direct Applicability from Domestic Legal
Force 148
(b) R elationship between Direct Applicability and Domestic
Legal Force 150
3 C reation of Individual Rights 154
4 D istinguishing Directly Applicable International Law from Law-
Making Treaties 159
B Q uestion of Domestic Law 160
C C riteria of the Direct Applicability of International Law 167
1 S ubjective Criteria 168
(a) I ntent of the Parties 168
(b) I ntent of the Executive and the Legislature 178
2 O bjective Criteria 182
(a) P recision 182
(b) S ubject Matter 188
(c) L egal Obligations 189
(d) P olitical Treaties 189
(e) I nternational Procedures for Enforcement 190
(f) R eciprocity 194
(g) F ormal Addressee 195
D R elative Approach 196
1 C ontextual Determination of Direct Applicability 196
2 P ositive Application and Negative Application of
International Law 200
3 E xclusion Effect 203
4 S tandstill Effect 206
5 R eview of the Legality of National Measures 208
viii Contents
6 O ther Effects 213
7 A dvantages of the Relative Approach 224
6 C ustomary International Law and Acts of International
Organizations 226
A D irect Applicability of Customary International Law 226
B D irect Applicability of Acts of International Organizations 231
1 D omestic Legal Force 231
2 D irect Applicability 236
3 O ther Effects 238
7 J udgments of International Courts 240
A D omestic Enforcement of International Decisions 240
1 I nternational Arbitral Awards 241
2 E uropean Court of Justice 241
3 E uropean Court of Human Rights 242
4 I nternational Court of Justice 246
5 W orld Trade Organization 256
B D irect Enforceability 260
C A cts of International Supervisory Bodies 262
1 I nternational Labour Organization 262
2 U nited Nations Human Rights Treaty Bodies 263
D E ffects Other Than Direct Enforceability 267
E Authentic Interpretation and Authoritative Interpretation 271
Conclusion 275
B ibliography 281
I ndex 308
Preface

This book analyses the application of international law in domestic law, with
a particular focus on the concept of direct applicability. It is a revised and
expanded version of the article I published in the Collected Courses of The
Hague Academy of International Law: “Domestic Application of International
Law”, 378 r.c.a.d.i. 9– 261 (2015). The article was based on the lecture I had
given at The Academy in 2002. Due to my university professorships and the
various positions I held at the United Nations and other international organ-
izations, including as a member and Chairperson of the Human Rights
Committee under the International Covenant on Civil and Political Rights,
I was unable to publish the lecture earlier.
The lecture and the article were based on my previous work, in particular
the book I had published in Japanese: Domestic Applicability of Treaties: What
Are “Self-E xecuting” Treaties? (Tokyo: Yuhikaku, 1985). The book was a mono-
graph I wrote as a Research Associate at the Faculty of Law in the University
of Tokyo. At the beginning of my academic career, I was interested in the ques-
tion of whether and how human rights treaties, in particular the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, can be applied by domestic courts. In
conducting research on this topic, I realised that the doctrine of self- executing
treaties was in a state of confusion and in great need of clarification and ref-
ormation. This realisation inspired me to conduct a comprehensive study on
the domestic applicability of treaties, and to attempt to reconstruct the theory
of direct applicability and put forward a renewed framework of analysis. The
work culminated in the above- mentioned book.
In 1986, I presented the basic theses of the book in an article published
in English: “The Doctrine of Self- Executing Treaties in the United States: A
Critical Analysis”, 26 Va. J. Int’l L. 627 (1986). The article focused on the doc-
trine of self- executing treaties in the United States and criticized it from the
perspectives I had advanced in my 1985 book. Then, in 1998, I analysed the
impact of international law on Japanese law in another book published in
English: International Law, Human Rights, and Japanese Law: The Impact of
International Law on Japanese Law (Oxford: Clarendon Press, 1998). In this
book, I partly applied the framework I had put forward in the 1985 book.
While the 2015 article relied on my previous work, it was comprehensively
rewritten and updated to incorporate the developments in jurisprudence and
literature that had taken place in the 30 years since the publication of the 1985
book. Whereas the 1985 book analysed the domestic applicability of treaties,
x Preface
the 2015 article dealt with the domestic application of international law more
generally. Thus, new chapters on customary international law, acts of interna-
tional organizations, and judgments of international courts were added to the
article.
The article was up to date as of 2015, even though it was completed some
years after the lecture had been given. In this book, I have substantially
revised it to reflect the developments since 2015. In particular, I extensively
revised Chapter 5 “Domestic Application of International Law: A Framework
of Analysis” and refined the framework I had hitherto put forward. In addi-
tion, I expanded Section B of Chapter 2 “Concept of Direct Applicability: The
International Approach”. Whereas the article analysed only two treaties—
namely the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights— Section B
analyses more treaties in six additional sections.
As a result of the update, many of the cases referred to in this book date
from the period since 1985. The notions of self- executing treaties in the United
States and direct effect of European Union law are analysed in detail in sep-
arate chapters. Consequently, many domestic cases addressed in this book
are from the United States. Cases from other States are discussed only when
they are relevant to the issues addressed. These include a number of illustra-
tive cases from Japan. Due to the limited accessibility of certain materials, the
other examples that I use come mostly from European States.
I was pleased and honoured that the late Professor Benedetto Conforti cited
my 1986 article favourably in his general course at The Hague Academy of
International Law in 1988, and then invited me to a conference in 1993, which
eventually produced a book: B. Conforti & F. Francioni (eds.), The Enforcement
of International Human Rights by Domestic Courts (The Hague: Kluwer Law
International, 1997).
I am grateful to The Hague Academy of International Law for inviting me
to give the lecture and for giving me an opportunity to present in English the
framework which I had advanced in 1985 in Japanese and which was therefore
not well-k nown outside Japan, except through the limited exposure of the arti-
cles and books I had published in English. I am pleased that I can now deliver
a revised and expanded version of the article as a book in English. I thank The
Academy for giving me permission to publish it in this form.
I acknowledge with appreciation the research and editorial assistance of
the following persons in the preparation of this book: Christopher Bello, Anna
Diamessis, Christine Griffiths, Marcos Kotlik, McCoy Pitt, Dean Rosenberg,
and Christie Wilson. I am indebted to the librarians at the International Court