ILDC: Three Notable Cases
By Gregor Novak, ILDC Associate Editor, University of Vienna
Domestic court decisions dealing with international law are significant not only as potential authoritative determinations of international law but also because of what they tell us about a respective domestic legal system’s distinctive approach and relationship to international law. A quick survey of three cases from Canada, Germany and Japan will help illustrate this dual utility of a number of decisions featured in the ILDC database.
The case of Three Yemeni Citizens v Germany (ILDC 2447 (DE 2015), reported by Björn Schiffbauer) was brought by three Yemeni individuals concerned about drone strikes conducted by the US military against individuals affiliated with Al Qaeda on Yemeni territory since 2002, apparently with the consent of the Yemeni government. They sought to challenge the legality of these attacks by suing the German government for its alleged role in facilitating the drone operations through a satellite communications network that was reliant on a US air force base located in Ramstein, Germany. In the claimants’ view, Germany’s conduct constituted an unlawful interference with their right to life under Article 2(2) of the German Basic Law (the Grundgesetz). Shortly before the court issued its decision, the German weekly Der Spiegel and the website The Intercept published articles on the case and on the alleged role of the US air force base in Germany. The Administrative Court in Cologne rejected the claimants’ case on the merits but allowed an appeal to the Administrative Court, citing the significance of the issues involved in the case as demonstrated in the media coverage. In addition to the court’s discussion of the international law applicable to the underlying armed conflict, the decision deals with a number of related aspects of domestic law, such as the justiciability of foreign affairs powers under German law and the extraterritorial applicability of the Basic Law.
The Nationality Act Case (ILDC 1814 (JP 2008), reported by Hiromichi Matsuda) is another domestic case where the international law questions at issue only become truly meaningful when viewed through the lens of their domestic and constitutional context. The applicant in the case, the child of a Japanese father and a Philippine mother, had sought automatic conferral of Japanese nationality upon submitting the relevant notification to the Minister of Justice under Article 3(1) of the Nationality Act. However, that provision was inapplicable to a child who, like the applicant, had been born out of wedlock and had satisfied only the requirement of being acknowledged by a Japanese father after birth. The Supreme Court of Japan held that under the prevailing interpretation of the Act a child in the applicant’s situation was subject to “considerable discriminatory treatment” compared to other children who had at least one parent of Japanese nationality and gave the provision a construction compatible with the equal treatment required under Article 14, para. 1 of the Constitution of Japan. International and foreign law influenced the court’s reasoning in subtle ways. The decision was plainly based on Article 14, para. 1 of the Japanese Constitution and international and foreign sources were applied with restraint and for additional support only. Yet the clear division between the majority’s opinion and the joint dissenting opinion on the question of the relevance of international and foreign law sources in constitutional interpretation showed that such sources were indeed more significant to the Court’s reasoning than might appear at first sight (see paras. 15-16 and para. 54).
Kazemi Estate v Islamic Republic of Iran (ILDC 1721 (CA 2014), reported by Gillian MacNeil) is another case in which the relationship between international law and domestic law was in many ways the most notable aspect of the case. In 2003, Ms. Zahra Kazemi, a freelance photographer and journalist of Canadian nationality, was tortured, sexually assaulted, and died while detained by Iranian authorities. The impossibility of Ms. Kazemi’s family obtaining justice in Iran prompted her son, both on his behalf and on behalf of his mother’s estate, to seek damages before Canadian courts by suing Iran, its head of state, the Chief Public Prosecutor of Tehran, and the former Deputy Chief of Intelligence of Evin Prison where Ms. Kazemi was detained. In its decision, the Supreme Court of Canada upheld the judgment of the Quebec Court of Appeal, which had affirmed the immunity granted by the first instance court to all defendants. Because the Supreme Court’s decision in Kazemi mainly turned on the Court’s construction of the Sovereign Immunities Act (SIA), as well as the compatibility of the SIA with section 2(e) of the Canadian Bill of Rights and section 7 of the Canadian Charter of Rights and Freedoms, international law played a limited role. According to the Supreme Court, only where the SIA’s provisions “were genuinely ambiguous or required clarification … would [it] be appropriate for courts to look to … international law for guidance … to find new exceptions to state immunity.” (para. 63). The Court made certain findings on particular points of international law, by reference to numerous international and foreign sources – e.g. affirming both the jus cogens nature of the prohibition of torture and maintaining that state immunity is a norm of customary international law. Yet the judgment was particularly notable for its position on the relationship between international law and Canadian law and the Court’s view on how arguably conflicting obligations under the two should be reconciled (see para. 170; the sole dissenter, Judge Abella, departed from the majority’s opinion in finding the SIA inapplicable to the two defendants other than Iran and its head of State).
As the three cases canvassed here illustrate, decisions reported in the ILDC database can often say quite a lot about the international law applied in a particular case by a domestic court. Yet they can also serve as an efficient window into a domestic legal system and its relationship to international law. As such, they illustrate the distinctive approaches to the adjudication of international law cases taken by various domestic courts.