Encyclopedia of Public International Law in Asia Online
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Subject: Law
General Editor: Seokwoo Lee
Incorporating the work of numerous leading scholars, the Encyclopedia of Public International Law in Asia Online provides a detailed description of the practice and implementation of international law in various Asian states. The Encyclopedia covers the introduction of Western international law and the resulting shift from the older Asian order; the development of modern international law; and the impact that all of this has had on Asian states. Each jurisdiction included in the Encyclopedia follows a standard structure for the broadest comparative advantage and starts with a Country Snapshot (Date of Independence, Date of Admission to the United Nations, Geographical Size, Population, Demographic Information, Form of Government, System of Law), followed by a State Report Overview (Executive summary of state report, Key highlights of unique state practice).
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2. Recognition of Statehood & Governments | Japan
(4,454 words)
2.1 Understanding of StatehoodA State, as the Japanese government understands, is an entity with effective political authority to govern the population within a defined territory. Obviously, the principle of effectiveness underlies this understanding of statehood.However, it is to be noted that the Japanese government does not deny the relevance of the principle that an entity shall gain statehood in accordance with international law. In the “Written Statement of the Government of Japan” the government submitted to the Internati…
6. Relationship between International & Domestic Law | Bangladesh
(2,011 words)
6.1 Status of International Law in the Legal System of Bangladesh: Dualism vs. MonismRegarding the application of international law in a domestic legal system, there are two prominent theories: monism and dualism. Monism signifies treating international law as part of domestic law and the prevalence of international law in case of a conflict between the two. Dualism, on the other hand, considers the two laws as totally distinct and signifies the prevalence of domestic law in case of conflict between the two.There are two further doctrines which deal with the application and …
6. Relationship between International & Domestic Law | India
(3,011 words)
6.1 India and Customary International LawIndia’s engagement with customary international law (CIL), a primary source of international law, has been perpetual. However, its position in relation to the diverse aspects of CIL is most clear in its responses to the ILC’s work on the identification of CIL (See, statements of the Indian representatives at the Sixth Committee of the 68th–73rd sessions of the UNGA). Based on these responses, the following aspects of India’s practice may be mentioned.
First, India advocates for the two elements approach, i.e., state practice and
opinio juris, …
6. Relationship between International & Domestic Law | Indonesia
(3,467 words)
6.1 Theories of International & Domestic Law – Monism, DualismInternational law and state law are 2 (two) legal systems that have different characteristics. The incipience of these legal systems merged arguments between law experts. In a situation where these legal systems “encounter”, which system has a more substantial impact? This article aims to explain the theory that sets and clears the relation between state law and international law. The experiences of each country should be different. Indonesia is not an exception since it also has its policies regarding this matter.Before …
6. Relationship between International & Domestic Law | Japan
(1,993 words)
6.1 Theoretical DevelopmentJapan was a new entrant to the international society in the 1850s, after 2 centuries of a closed-door policy. The modern Japanese government established in 1868 was eager to incorporate international law with the national legal system to ensure the development of modern Japan into a civilized nation. In this sense, international law took precedence over modern Japanese law, not vice versa.For example, during the
Maria Luz incident (1872–1875), Peruvian traders criticized the Japanese government, saying that on the one hand, it freed Ch…
6. Relationship between International & Domestic Law | Korea
(533 words)
6.1 Theories of International & Domestic Law6.1.1 Status of International Law in Korea’s Domestic Legal SystemThe Constitution of Korea stipulates in Article 6, paragraph 1 that “treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” In accordance with this provision, international law has been generally accepted as Korean domestic law and incorporated into Korea’s domestic…
6. Relationship between International & Domestic Law | Singapore
(3,946 words)
6.1 Theories of International & Domestic LawThe Singapore courts adopt a dualist approach in treating international and domestic law as separate legal systems. This is distinct from monism, which was explicitly rejected by the Singapore Court of Appeal in
Yong Vui Kong v PP [2015] 2 SLR 1129 at [28], which views both as belonging to the same legal order.Treaties are not self-executing and cannot create independent rights, powers and obligations under Singapore law, unless and until legislatively enacted by Parliament. Singapore’s accession to the Conven…
6. Relationship between International & Domestic Laws | Philippines
(4,076 words)
6.1 Monism and Dualism under Philippine LawThe main distinction between jurisdictions which follow the monist as opposed to the dualist approach is whether or not it allows the direct application of international law in the domestic sphere as if it were national law without need of transformation. The monist allows this while the dualist does not. While the general consensus is that the Philippines follows the dualist rather than the monist approach, there are arguments for the latter based on how int…
6. Relationship between International & Domestic Law | Sri Lanka
(4,668 words)
6.1 Domestic Implementation of International Treaties in Sri LankaIt is widely accepted that though international law requires a State to carry out its international obligations, it does not govern the process and patterns of incorporating international law into municipal law. As a result, States follow different processes in incorporating international law into their domestic legal system. Popularly adopted ways of incorporating international law into domestic law are explained by two schools of law, n…
6. Relationship between International & Domestic Law | Taiwan
(909 words)
6.1 Relationship between International and Domestic Law – Taiwan’s PracticesAs a
sui generis entity, Taiwan’s practices regarding the relationship between international and domestic law is worthy of discussion. Taiwan’s Constitution (ROC Constitution, 1 January 1947) provides a basic legal framework for the distribution of the executive and legislative branch, which affects how international law can take effect domestically. In particular, Article 38 of the Constitution provides that “[t]he President shall….…
6. Relationship between International & Domestic Law | Thailand
(1,081 words)
6.1 Thailand’s Perspective on International Law and Domestic LawWhen we talk about international law, traditionally, the State will be bound after they have agreed and signed an international agreement, no matter what name it might be called. But when we are talking about international law, it is not limited to the treaty or convention as we have previously discussed, but also the general principles of law and customary international law which take part as important sources of international law. Especia…
6. Relationship between International Law & Domestic Law | Malaysia
(2,778 words)
6.1 Theories of International and Domestic Law – Monism, DualismAs a member of the United Nations, Malaysia is bound by customary international law in its relations with other States. If it commits a breach of its international obligations, it cannot absolve itself by pleading the condition of its domestic law and will incur liability in the international courts.However, in domestic courts proceedings, international law is not self-executing. In the jurisprudence of Malaysian courts, the monism versus dualism debate is generally in favour of the duali…