International Law, Human Rights, and Japanese Law: The Impact of International Law on Japanese Law

By Yuji Iwasawa | Go to book overview

III. The Status of International Law in Japan

In this chapter, the status of international law in Japan's legal order is examined. Section A confirms that treaties and customary international law have the force of law in Japan. Thus, litigants can invoke international law before Japanese courts. Section B examines how Japanese courts deal with the arguments made in reliance on international law and make findings. While international law has the force of law in Japan, international instruments that are not binding under international law, such as declarations on human rights, have no legal force. That subject is addressed in Section C. Some human rights treaties, even though binding under international law, only establish an objective which is to be achieved progressively, and their enforcement in domestic law is often thwarted. This is an issue addressed in Section D. In Section E, the oft-confusing doctrine of self-executing character or direct applicability of international law is analysed in detail. Even if an international rule cannot be directly applied, it may be applied indirectly. Such indirect application of international human rights law can actually be very effective. We examine how this technique is used by Japanese courts in Section F. Domestic courts may evaluate the human rights situations of a foreign country, refusing to extradite a criminal to the country or to apply the law of the country for the reason that it would be contrary to international human rights law. Section G deals with such 'external' application of international human rights law. In Section H, the rank of international law in Japan's legal order is analysed. A related issue of whether treaties are subject to judicial review is examined in Section I. Finally, in Section J, legal effect of acts of international organizations in domestic law, an issue which has often been neglected by scholars, is addressed.


A. Domestic Legal Force of International Law

According to the prevailing view, treaties concluded by Japan and published in the Kanpō have the force of law (Geltung) in Japan. Under the Meiji Constitution of 1889, scholarly opinion was divided on the question as to whether treaties acquired domestic legal force in Japan as soon as they were ratified and promulgated, because there was no express provision in the Constitution on the domestic effect of treaties. However, the Government and the courts took the view that treaties had the force

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