International law in Japanese Courts

Abstract

This chapter examines international law in Japanese courts in the context of separation of powers, treaty-making procedure, and transnational judicial dialogue under the Japanese Constitution. It analyzes international law in Japanese courts in the following four categories: (1) constitutional review of international law; (2) judicial application of international law; (3) consistent interpretation of statutory and constitutional law with international law; and (4) reliance on persuasive authority in constitutional interpretation. Although Japanese courts are reluctant to use international law as binding law, the Supreme Court of Japan recently began actively referring to foreign and international sources as persuasive authorities. Because of the practice of “implementing-legislation-perfectionism” and the relative lack of democratic legitimacy of international law, Japanese courts will probably continue to take a restrictive approach toward applying binding international norms. In contrast, the Supreme Court of Japan is expressing a positive attitude toward transnational dialogue. Japanese courts will probably expand and enhance transnational judicial dialogue in and out of the courtroom. This chapter concludes that Japanese courts have the potential to be one of the interesting benchmarks for whether any existing “global community of courts” can really be global and universal.