Unrecognized States and Treaty Obligations: Japanese Supreme Court on North Korean Copyrights and the Berne Convention

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read
Unrecognized States and Treaty Obligations: Japanese Supreme Court on North Korean Copyrights and the Berne Convention

Date of Judgment: December 8, 2011
Supreme Court of Japan, First Petty Bench

The realm of international law is built upon the interactions between states. However, complex legal questions arise when an entity that is not formally recognized as a state by a particular country accedes to a multilateral treaty to which that country is already a party. Does this accession automatically create treaty obligations between the recognizing state and the unrecognized entity? A Japanese Supreme Court decision on December 8, 2011, often referred to as the "Berne Convention Case," addressed this intricate issue in the context of copyright protection for North Korean films in Japan.

The Factual Background: North Korean Films and Alleged Infringement in Japan

The case involved the following parties:

  • X1 (Plaintiff): A Japanese corporation.
  • X2 (Plaintiff): An administrative agency under the Ministry of Culture of the Democratic People's Republic of Korea (North Korea).
  • Y (Defendant): A Japanese broadcasting company.
  • A (Another Defendant): Also involved in the broadcast.

X2, the North Korean state agency, claimed to hold copyrights under North Korean law for several films ("the Works"). X1 had been granted exclusive rights by X2 to screen, broadcast, and license these films in Japan. Y and A broadcasted portions of one of these films in a TV news program in Japan without obtaining permission from either X1 or X2.

Consequently, X2 sued Y and A for copyright infringement (specifically, infringement of the public transmission right), seeking an injunction and damages. X1 also sued for damages based on the infringement of its exclusive license.

The legal basis for claiming copyright protection in Japan for these North Korean films hinged on Article 6 of the Japanese Copyright Act. This article extends protection to: (1) works of Japanese nationals, (2) works first published in Japan, and critically for this case, (3) "works which Japan has an obligation to protect under an international treaty." Both Japan (since 1975) and North Korea (since 2003) are parties to the Berne Convention for the Protection of Literary and Artistic Works. Article 3(1)(a) of the Berne Convention generally obligates member states of the "Berne Union" to protect the works of authors who are nationals of other Union countries.

The core dispute was whether Japan, which does not formally recognize North Korea as a state, was obligated under the Berne Convention to protect the copyrights of North Korean nationals (or state entities like X2). The Tokyo District Court and the Intellectual Property High Court both dismissed X1 and X2's copyright claims on the grounds that Japan had no such treaty obligation towards works from an unrecognized state. The case then proceeded to the Supreme Court.

The central issue was whether North Korea's accession to the Berne Convention automatically created treaty-based rights and obligations between Japan and North Korea, thereby obligating Japan to protect North Korean copyrighted works under its domestic copyright law.

The Supreme Court's Ruling: No Automatic Treaty Relationship with Unrecognized States

The Supreme Court dismissed the appeal by X1 and X2 regarding the copyright protection claims, affirming the lower courts' conclusions but providing its own distinct reasoning:

1. General Principle on an Unrecognized State Joining a Multilateral Treaty:
The Supreme Court laid down a general principle:

"Generally, when an unrecognized state subsequently accedes to a multilateral treaty that is already in force for Japan, it cannot be construed that treaty-based rights and obligations immediately arise between Japan and the unrecognized state, unless the obligations imposed on contracting states by said treaty are of a universal valueを有する一般国際法上の義務であるときなどは格別 (having universal value derived from general international law)."

The Court further stated:

"我が国は、当該未承認国との間における当該条約に基づく権利義務関係を発生させるか否かを選択することができるものと解するのが相当である (It is appropriate to construe that Japan is able to choose whether or not to bring into effect treaty-based rights and obligations with said unrecognized state under said treaty)."

2. Nature of the Berne Convention:
The Court then analyzed the nature of the Berne Convention itself:

  • It protects works of authors who are nationals of Union countries (Article 3(1)(a)).
  • For authors from non-Union countries, protection is limited (e.g., if first published in a Union country, Article 3(1)(b)).
  • The Convention is thus structured around the framework of a "Union" of states and aims to achieve copyright protection on that basis.
  • Consequently, the Berne Convention does not impose on contracting states obligations of universal value derived from general international law in the same way that, for example, fundamental human rights treaties might.

3. Japan's Manifested Intent Regarding North Korea and the Berne Convention:
The Supreme Court then looked at Japan's actions and official position concerning North Korea's accession to the Berne Convention:

  • When North Korea acceded to the Convention, Japan did not issue an official public notice (告示 - kokuji) declaring that the treaty had entered into force for North Korea with respect to Japan. (Japan typically issues such notices for treaty accessions by other countries).
  • Relevant Japanese government ministries (the Ministry of Foreign Affairs and the Ministry of Education, Culture, Sports, Science and Technology) had expressed the official view that Japan does not consider itself obligated under the Berne Convention to protect the works of North Korean nationals as if they were works of nationals of a Berne Union country.
  • Conclusion on Intent: These factors indicated that Japan had chosen not to bring into effect treaty-based rights and obligations with North Korea under the Berne Convention, despite North Korea's formal accession to the treaty.

Outcome for the Copyright Claim:
Based on this reasoning, the Supreme Court concluded that Japan was not obligated under Article 3(1)(a) of the Berne Convention to protect the North Korean films in question. Therefore, these films did not qualify as works that Japan must protect under Article 6(iii) of its Copyright Act. As a result, X2's claim for copyright infringement was dismissed. (X1's alternative claim for damages based on tort law principles for interference with business interests was handled separately by the Court and allowed to proceed for further examination, but that aspect is beyond the scope of this international law summary).

Significance and Commentary Insights

This Supreme Court decision is significant for its clarification of Japan's stance on treaty relations with states it does not formally recognize:

  • State Recognition and Treaty Law: The ruling navigates the delicate interface between the political act of state recognition (or non-recognition) and the legal consequences of an unrecognized entity joining multilateral treaties.
  • Impliedly Declaratory View of Statehood, but Choice in Treaty Relations: Professor Nishimura's commentary suggests that the Supreme Court's approach is likely compatible with the "declaratory theory" of state recognition, which is the dominant view in modern international law. This theory holds that an entity is a state if it meets the criteria of statehood (defined territory, permanent population, effective government, capacity to enter into relations with other states), irrespective of whether other states have formally recognized it. Recognition is merely a political acknowledgment of an existing legal fact.
    However, the Supreme Court's decision indicates that even if an unrecognized entity might possess statehood under international law, other states retain the sovereign discretion to choose whether or not to enter into specific treaty relationships with it under a multilateral convention. This is particularly so for treaties that do not embody obligations of universal value derived from general international law.
  • Importance of Manifested State Intent: The Supreme Court placed considerable weight on the consistent actions and official pronouncements of the Japanese government (the absence of a public notice regarding the treaty's effect with North Korea, and the stated views of relevant ministries) as evidence of Japan's exercise of its choice not to activate treaty obligations under the Berne Convention vis-à-vis North Korea.
  • Exception for Obligations of Universal Value: The Court did leave open the possibility that if a treaty imposes obligations of "universal value derived from general international law" (e.g., core human rights norms, principles of jus cogens, or erga omnes obligations), an unrecognized state's accession might create obligations for Japan even without explicit acceptance of treaty relations. However, the Berne Convention was not found to fall into this category.

Conclusion

The 2011 "Berne Convention Case" is a key Japanese Supreme Court ruling on the complex issue of treaty relations with unrecognized states. It establishes that for multilateral treaties not embodying obligations of universal general international law, an unrecognized state's accession does not automatically create treaty-based rights and obligations for Japan. Instead, Japan retains the sovereign discretion to determine whether it will enter into such specific treaty relations with the unrecognized entity. The government's manifested intent, through official notices and statements, plays a crucial role in evidencing this choice. This decision provides important clarity for understanding how Japan navigates its international legal obligations in politically sensitive situations involving unrecognized entities.