• • • • chemical pollutants – Australia, Palestine, the Philippines; oil spills – the Philippines; energy efficiency – New Zealand; and the application and use of genetically engineered technology – India. Are international treaties and customary international law recognised as a source of law by APF Member States? The domestic application of international treaties and customary international law is dealt with differently throughout the Asia Pacific region. Some states accept treaties and customary international law as directly binding in their domestic arenas. Other states require international treaties and customary international law to be incorporated in domestic legislation before they are binding at the domestic level. Amongst these states, international treaties and customary international law that have not been incorporated into domestic law may be accorded different status: for example, they may or may not have persuasive force before domestic courts. In Australia,123 Malaysia124 and Thailand,125 treaties and customary international law are not automatically incorporated into domestic law and are enforceable only when they are incorporated into domestic legislation. In Thailand, treaties may also be implemented domestically, if they are approved by the National Assembly. Unincorporated treaties and customary international law may influence the interpretation of Australian law. 126 By contrast, the Philippines sits at the other end of the spectrum. Customary international law, general principles of international law, and international jurisprudence are sources of law, and are incorporated into domestic law via the Constitution.127 This would also appear to be the case in Afghanistan, where the Constitution provides that the state shall abide by Afghanistan’s international law obligations – ‘the UN Charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights’. 128 Between these two positions sit New Zealand, India, the Republic of Korea and Afghanistan. New Zealand has a similar approach to Australia and Malaysia, except that, apart from holding persuasive value, customary international law may be applied directly by courts. 129 So too does India, where the Supreme Court has held that an accepted customary law principle can be accepted as part of domestic law. Conversely, in the Republic of Korea, international law is subordinate to the Constitution, but has the same status as domestic law. International customary law, however, has not been used as a basis for a judicial decision, and the Constitutional Court has denied the use of customary international law in certain circumstances (e.g., as a basis for reparation claims). 123 Asia Pacific Forum, above n 4, p. 94. Ibid 123. 125 Ibid 176. See also Thai Constitution 2007 (informal English translation) arts 186. 126 Ibid 94. 127 Ibid 157. 128 Constitution of Afghanistan 1382 art 7. 129 Asia Pacific Forum, above n 4, p. 137. 124 - 38 -