72
J. Tsuruta
2 of the Constitution of Japan,
21 if a lawsuit were filed despite the lack of criminal enforcement and judicial jurisdiction under international law, the suit would be
dismissed by judgment under Article 338, Item 1 of the Code of Criminal Procedure.
The domestic measures for implementing international treaties in Japan must refer
to the Constitution of Japan which takes the position that basically treaties shall be
approved by the Diet (Article 73, Item 3 of the Constitution of Japan). It also states
that approved treaties themselves are automatically promulgated by the Emperor
(Article 7, Item 1). Furthermore, Chapter X “Supreme Law” of the Constitution of
Japan states that “the treaties concluded by Japan and established laws of nations shall
be faithfully observed” (Article 98, Paragraph 2). Therefore, the treaties concluded by
Japan can be interpreted to be immediately incorporated into the Japanese domestic
legal system by their promulgation (i.e., adoption of the doctrine of incorporation).
For that reason, even if laws for implementing treaty rights and obligations are not
arranged, treaties promulgated have legal effect as domestic laws within the Japanese
legal system. In other words, since Japan has adopted the doctrine of incorporation,
there is no need to enact domestic laws corresponding to the rights and obligations
granted to Japan as a party of treaties. There is also no need to rewrite the contents
of treaties into such laws.
The arrangement of laws for implementing treaties within Japan is either a measure
for cases where administrative agencies and courts find it difficult to directly apply
and enforce treaty provisions, or as a supplement measure for reinforcing the implementation of the treaty concluded by Japan—even when they can directly apply and
enforce treaty provisions.
Consequently, the implementation of the UNCLOS in Japan requires some laws
for cases where administrative agencies exercise their authority over private persons.
If domestic laws were not prepared for the implementation of the UNCLOS, the
policing authorities of investigation, arrest, confiscation, custody, referral, and prosecution could not be exercised. Fundamentally, only administrative measures voluntarily accepted by the counterparties involved could be exercised within the range
permitted by the UNCLOS. Furthermore, they could only also be exercised within
the range permitted by the JCG Act, which is one of the laws providing legal grounds
for exercising jurisdiction at sea (This is explained further in the next section).
22
4.4 Japan’s Exercising Enforcement Jurisdiction at Sea
in Accordance with the UNCLOS
This section examines what kinds of differences arise in the feasibility and methods
of exercising jurisdiction at sea in cases where domestic laws have not been arranged
21 English translation of the Constitution of Japan is available at http://www.japaneselawtranslation.
go.jp/law/detail/?id=174&vm=04&re=01&new=1 (accessed on May 20, 2020).
22 See Tsuruta Jun, 2019b, A Side Reader on International Law, 2nd edition (in Japanese), Tokyo:
Seibundoh, pp. 83–92.
J. Tsuruta
2 of the Constitution of Japan,
21 if a lawsuit were filed despite the lack of criminal enforcement and judicial jurisdiction under international law, the suit would be
dismissed by judgment under Article 338, Item 1 of the Code of Criminal Procedure.
The domestic measures for implementing international treaties in Japan must refer
to the Constitution of Japan which takes the position that basically treaties shall be
approved by the Diet (Article 73, Item 3 of the Constitution of Japan). It also states
that approved treaties themselves are automatically promulgated by the Emperor
(Article 7, Item 1). Furthermore, Chapter X “Supreme Law” of the Constitution of
Japan states that “the treaties concluded by Japan and established laws of nations shall
be faithfully observed” (Article 98, Paragraph 2). Therefore, the treaties concluded by
Japan can be interpreted to be immediately incorporated into the Japanese domestic
legal system by their promulgation (i.e., adoption of the doctrine of incorporation).
For that reason, even if laws for implementing treaty rights and obligations are not
arranged, treaties promulgated have legal effect as domestic laws within the Japanese
legal system. In other words, since Japan has adopted the doctrine of incorporation,
there is no need to enact domestic laws corresponding to the rights and obligations
granted to Japan as a party of treaties. There is also no need to rewrite the contents
of treaties into such laws.
The arrangement of laws for implementing treaties within Japan is either a measure
for cases where administrative agencies and courts find it difficult to directly apply
and enforce treaty provisions, or as a supplement measure for reinforcing the implementation of the treaty concluded by Japan—even when they can directly apply and
enforce treaty provisions.
Consequently, the implementation of the UNCLOS in Japan requires some laws
for cases where administrative agencies exercise their authority over private persons.
If domestic laws were not prepared for the implementation of the UNCLOS, the
policing authorities of investigation, arrest, confiscation, custody, referral, and prosecution could not be exercised. Fundamentally, only administrative measures voluntarily accepted by the counterparties involved could be exercised within the range
permitted by the UNCLOS. Furthermore, they could only also be exercised within
the range permitted by the JCG Act, which is one of the laws providing legal grounds
for exercising jurisdiction at sea (This is explained further in the next section).
22
4.4 Japan’s Exercising Enforcement Jurisdiction at Sea
in Accordance with the UNCLOS
This section examines what kinds of differences arise in the feasibility and methods
of exercising jurisdiction at sea in cases where domestic laws have not been arranged
21 English translation of the Constitution of Japan is available at http://www.japaneselawtranslation.
go.jp/law/detail/?id=174&vm=04&re=01&new=1 (accessed on May 20, 2020).
22 See Tsuruta Jun, 2019b, A Side Reader on International Law, 2nd edition (in Japanese), Tokyo:
Seibundoh, pp. 83–92.