International Law Before English and Asian Courts: Finding the Judicial Role in the Separation of Powers

Abstract

This article questions the idea that the role of domestic courts in relation to international law is triggered only when international law is incorporated into domestic law by the other branches of government. It argues that domestic courts have extensive powers in defining their role vis-à-vis international law and influencing the relationship between domestic and international law. By going beyond the typical monist-dualist discussions, the first part of the article presents how English and American courts, by giving different meanings to the term “part”, reveal how they perceive their relationships with the other government branches and their role in relation to international law. The article then investigates whether similar judicial techniques can be identified in Asian courts’ treatment of international law. In showcasing the approaches of some Asian courts, the article provides snapshots of how these judges actively shape their role vis-à-vis international law and how they construct their relationships with the Legislature and the Executive.