Diplomatic Bluebook 2015
Japan’s Foreign Policy to Promote National and Worldwide Interests
7.The Rule of Law in the International Community
A. What is the Rule of Law?
The rule of law is the concept that acknowledges the superiority of the law over all other forms of power; it is the basis of friendly and impartial relations between states as well as being an essential cornerstone of a fair and just domestic society. Japan regards efforts to strengthen the rule of law in the international community as one of the pillars of its foreign policy and has taken various opportunities, including the Shangri-La Dialogue in May, to affirm the importance of peaceful settlement of disputes based on international law, rather than force or coercion. In this light, MOFA will host an international symposium on the law of the sea in February 2015, entitled “The Rule of Law in the Seas of Asia: Navigational Chart for Peace and Stability.” It is anticipated that this symposium will promote lively discussions among domestic and foreign experts in the field of the law of the sea. In addition, Japan has been contributing to the making of new rules in international law and to the strengthening of the rule of law within various countries through such endeavors as the development of legislation.
(a) Peaceful settlement of disputes
In order to encourage the peaceful settlement of disputes via international judicial institutions, Japan accepts the compulsory jurisdiction of the International Court of Justice (ICJ)1 and strives to comply faithfully with international law, while contributing to international courts and tribunals in various ways, such as providing human and financial resources. Notably, Judge Hisashi Owada at the ICJ, Judge Shunji Yanai at the International Tribunal for the Law of the Sea (ITLOS) who served as President of the Tribunal from October 2011 until September 2014, and Judge Kuniko Ozaki at the International Criminal Court (ICC) are currently in service. In addition, Japan is the largest financial contributor to the ITLOS and the ICC. Through these contributions, Japan is endeavoring to improve the efficacy and universality of international courts and tribunals.
- 1 A declaration that the state party to the Statute of the ICJ recognizes as compulsory, ipso facto and without special agreement, in relation to any other states accepting the same obligation, the jurisdiction of the ICJ, in accordance with Article 36, paragraph 2 of its Statute. Only 71 countries including Japan have deposited such a declaration to date.
On the subject of the case concerning Whaling in the Antarctic instituted by Australia against Japan in May 2010, following written proceedings (until March 2012) and oral proceedings (June to July 2013), the ICJ rendered its Judgment in March. The ICJ ruled that the special permit issued by Japan for the Second Phase of Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) did not fall within the scope of the provisions of Article VIII, paragraph 1 of the International Convention for the Regulation of Whaling. The Court ordered Japan to revoke the existing permit for JARPA II and to refrain from issuing any permits for the activities in question in future. Japan announced that, while being disappointed and regretful of the Judgment of the Court, it would abide by the Judgment as a State that places a great importance on the international legal order and the rule of law as a basis of the international community, and consequently, it canceled JARPA II.
Japan actively participates in international rule-making carried out as part of the process of strengthening the rule of law in the international community, seeking to be involved from the conceptual stage in order to ensure that Japan’s own principles and opinions are correctly reflected and that the law develops appropriately. Specifically, Japan has been actively involved in the rule-making process within various international frameworks, including the codification of international law by the International Law Commission (ILC) of the UN and the UN General Assembly Sixth Committee, as well as the preparation of conventions and model laws in the field of private international law as part of the Hague Conference on Private International Law and the UN Commission on International Trade Law (UNCITRAL). In the ILC, Dr. Shinya Murase (Professor Emeritus, Sophia University) serves as Special Rapporteur on the topic “Protection of the Atmosphere,” and contributes to the development of international law through deliberations on the draft articles and other instruments prepared by the ILC. As a member of the Governing Council of the International Institute for the Unification of Private Law (UNIDROIT), Mr. Hideki Kanda (Professor, University of Tokyo) contributes to the preparation of uniform legal treaties and model laws in the field of private law. Japan also contributes to a regional forum on international law in the form of the Asian-African Legal Consultative Organization (AALCO), providing personnel and financial support.
(c) Domestic legislation and other matters
Not only does Japan take steps to appropriately improve its own national laws so as to comply with international law, but it also actively supports the development of legislation of Asian countries in particular and undertakes international cooperation related to the rule of law, in order to further develop the rule of law within each country. In addition, MOFA seeks to deepen understanding of international law within the region by hosting and supporting international law moot courts and symposiums focused on international law, among other initiatives. For example, in August, MOFA and the Japanese Society of International Law co-hosted the Asia Cup, an international law moot court competition with the participation of university students from Asia countries.
B. Initiatives in the fields of politics and security
It remains vital to ensure the smooth and effective operation of the Japan–US Security Treaty, in order to bolster the foundations of Japan’s foreign policy and security. With regard to the realignment of US forces in Japan, in May, Japan and the US concluded the Protocol to amend the Guam International Agreement, in order to maintain the deterrent effect of the Japan-US Alliance, while promptly alleviating the burden on Okinawa (for further details, see Chapter 3 1. 2) “The Japan-US Security Arrangement”).
Moreover, in order to become more actively involved in the field of managing defense equipment under the Three Principles on Transfer of Defense Equipment adopted in April, Japan signed the Agreement concerning the Transfer of Defence Equipment and Technology, which sets out the legal framework for the handling of defense equipment and technology transferred between Japan and Australia; the Agreement entered into force in December.
Japan also continues to undertake negotiations regarding the conclusion of a peace treaty with Russia, which is a key issue.
In addition, to promote disarmament and nonproliferation, in May, Japan deposited the instrument of acceptance of the Arms Trade Treaty, the first universal treaty regulating international trade in conventional arms, while in June it deposited the instrument of acceptance of the Amendment to the Convention on the Physical Protection of Nuclear Material, which expands the focus of protection measures and the scope of actions that should be criminalized (the Arms Trade Treaty entered into force in December). In May and June, Japan also concluded nuclear cooperation agreements with Turkey and the United Arab Emirates, respectively. These Agreements provide the necessary legal framework for the realization of cooperation in the field of the peaceful uses of nuclear energy. Furthermore, Japan deposited its instrument of acceptance of the Convention on Supplementary Compensation for Nuclear Damage (CSC) in January. The CSC will help to enhance swift and fair redress and compensation to the victims of nuclear accidents and increase the legal predictability thereof (for further details, see Chapter 3 1. 4) “Disarmament, Nonproliferation, and the Peaceful Use of Nuclear Energy”).
C. Initiatives in the fields of the economy and society (for further details, see Chapter 3 3. “Economic Diplomacy”)
The conclusion and implementation of international agreements that bring legal discipline to cooperative relationships with other countries in the economic sphere is becoming increasingly important in order to promote the liberalization of trade and investment, people-to-people exchanges, and strengthen the foundations for the overseas activities of Japanese citizens and companies. The agreements that Japan signed or concluded with various countries and regions in 2014 include tax conventions, investment agreements, social security agreements, and air services agreements. In addition, Japan engaged in negotiations regarding economic partnership agreements (EPAs) with countries in the Asia-Pacific region, East Asia, and Europe, and actively advanced negotiations concerning broader regional economic partnerships such as the Trans-Pacific Partnership (TPP) Agreement, the Japan-China-ROK Free Trade Agreement (FTA), the Regional Comprehensive Economic Partnership (RCEP), and the Japan-EU EPA. In the arena of bilateral EPAs, in July, Japan and Australia signed the EPA that they had been negotiating for many years. Under the World Trade Organization (WTO), in March, Japan concluded the Protocol Amending the Agreement on Government Procurement, expanding the scope of government procurement in other countries in which Japanese companies could become involved. In the field of intellectual property protection, in June, Japan concluded the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs. With a view to protecting and enhancing the livelihoods and activities of Japanese citizens and companies, Japan is striving to ensure the appropriate implementation of existing international agreements as well as utilizing the WTO’s dispute settlement mechanism.
In what might be termed “social” fields, such as human rights, the fisheries industry, maritime affairs, aviation, and labor, which have a great influence on the livelihoods of the people, Japan is actively participating in negotiations, to ensure that Japan’s stance is reflected in international agreements. In January, Japan concluded treaties in the fields of human rights and private international law, specifically the Convention on the Rights of Persons with Disabilities and the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), respectively. Japan also concluded the South Indian Ocean Fisheries Agreement in June, while in October it concluded the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004, which was adopted by the International Maritime Organization (IMO).
D. Initiatives in the field of criminal justice
The ICC is the world’s first permanent international criminal court that prosecutes and punishes individuals who have committed the most serious crimes of concern to the international community in accordance with international law. Since becoming a State Party to the ICC Rome Statute in October 2007, Japan has consistently supported the ICC’s activities, contributing in various ways. Japan is the largest financial contributor to the ICC. Moreover, in terms of personnel, Japan has provided several judges to the Court since becoming its State Party (the current Japanese judge is Judge Kuniko Ozaki). Former Justice of the Supreme Court Hiroshi Fukuda contributes to the activities of the ICC as a member of the Advisory Committee on nominations of ICC judges and Mr. Motoo Noguchi, former International Judge of the Extraordinary Chambers in the Courts of Cambodia, serves as Chair of the Board of Directors of the ICC’s Trust Fund for Victims.
After more than a decade since the entry into force of the Rome Statute, the treaty which established the ICC, it is now becoming a full-fledged international criminal justice institution. As such, as well as the need for further efforts to secure cooperation with the ICC and to establish the principle of complementarity, the protection of witnesses and the prompt establishment of procedures for the participation of victims in proceedings are tasks that must be addressed. These matters were topics on the agenda at the Assembly of States Parties in December 2014, when Japan and other countries emphasized their importance, resulting in the adoption of relevant resolutions.
In addition to such ICC-related initiatives, Japan is responding to the recent increase in transnational crimes by striving to ensure that the necessary evidence is provided between countries without fail. Moreover, it is actively striving to develop a legal framework for promoting international cooperation in the field of criminal justice. More specifically, Japan is working on the conclusion of mutual legal assistance treaties2, extradition treaties3, and treaties on the transfer of sentenced persons4. Most recently, in June 2014, the Diet approved the Treaty Between Japan and the Federative Republic of Brazil on the Transfer of Sentenced Persons and the Japan-US Agreement on Preventing and Combating Serious Crime.
- 2 A legal framework that expedites and promotes greater efficiency in cooperation with other countries in investigating criminal cases and undertaking relevant procedures.
- 3 A legal framework with comprehensive, detailed provisions concerning the extradition of criminals, enhancing the effectiveness of cooperation aimed at curbing crime.
- 4 A legal framework that gives persons sentenced in another country as result of their commission of a criminal offence an opportunity to serve their sentence within their own country, thereby facilitating their social rehabilitation.