Diplomatic Bluebook 2016
Japan’s Foreign Policy to Promote National and Worldwide Interests
6.The Rule of Law in the International Community
(1) Strengthening of the Rule of Law for the Diplomacy of Japan
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. The rule of law is also an important factor for promoting “Good Governance” in each country, as well as ensuring the peaceful settlement of disputes. 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 to affirm the importance of peaceful settlement of disputes based on international law, rather than force or coercion. 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 legal technical assistance.
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, those currently in service include Judge Hisashi Owada at the International Court of Justice (ICJ) (President of the ICJ from March 2009 to February 2012), Judge Shunji Yanai at the International Tribunal for the Law of the Sea (ITLOS; see (2)) (President of the ITLOS from October 2011 to September 2014), and Judge Kuniko Ozaki at the International Criminal Court (ICC; stated later in detail) (Second Vice-President from March 2015 to February 2018). 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.
In April 2015, International Judicial Proceedings Division was established in the International Legal Affairs Bureau of the Ministry of Foreign Affairs. This Division aims at accumulating knowledge on judicial proceedings in the ICJ and other bodies, and further strengthening the structure of the Ministry for dealing with international litigations.
- 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 Article36, paragraph 2 of its Statute. Only 72 countries including Japan have deposited such a declaration to date.
B. International Rule-making
International rule-making that responds to issues the global community faces is one of the important efforts to strengthen the rule of law. In developing these international rules, Japan has actively participated in rule-making process since the planning phase in order to reflect Japan’s own principles and opinions and ensure the appropriate development of laws. Specifically, Japan has been actively involved in the rule-making process within various international frameworks including the codification work being undertaken by the International Law Commission (ILC) and the 6th Committee of the United Nations General Assembly, as well as the preparation of conventions and model laws in the field of private international law at fora such as the Hague Conference on Private International Law (HCCH) and the United Nations Commission on International Trade Law (UNCITRAL), and the International Institute for the Unification of Private Law (UNIDROIT). In the ILC, Dr. Shinya Murase (Professor Emeritus of Sophia University) serves as Special Rapporteur on the topic “Protection of the Atmosphere” since 2014, and is contributing to the development of international law through deliberations on the draft articles and guidelines prepared by the ILC. Japan also dispatches representatives to various meetings of the HCCH and the UNCITRAL, vigorously participating in discussions. Professor of Law at the University of Tokyo, Hideki Kanda, serves as a board member of the UNIDROIT. Japan also contributes to the Asian-African Legal Consultative Organization (AALCO), a regional forum on international law, by 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. For example, in August 2015, the Ministry of Foreign Affairs and the Japanese Society of International Law co-hosted the “Asia Cup” international law moot court competition with the participation of university students from Asian countries. Japan is striving to develop human resources with certain understanding of international law for the next generation and to enhance communication among them, such as through sharing the importance of peaceful settlement of dispute in Asia with participants from Asian countries.
(2) Initiatives for the Rule of Law at Sea
In recent years, there are an increasing number of cases of international friction and tension taking place in the seas of Asia, attracting significant concern from international society. Against this backdrop, Prime Minister Abe advocated the “Three Principles of the Rule of Law at Sea” at the Shangri-La Dialogue in May 2014, which are (1) making and clarifying claims based on international law, (2) not using force or coercion in trying to drive their claims, and (3) seeking to settle disputes by peaceful means.
The UN Convention on the Law of the Sea (UNCLOS) plays an important role in the rule of law at sea. UNCLOS established ITLOS for the peaceful settlement of maritime disputes and maintenance and development of the legal order at sea. Japan, promoting the rule of law at sea, attaches importance to the role played by ITLOS. Japan has contributed in personnel to the Tribunal by producing two Japanese judges in succession, and has also been the largest financial contributor ever since the foundation of the ITLOS.
Likewise, the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA) also play important roles in operation of the system for defining the outer limits of a continental shelf, and management of deep sea-bed mineral resources. Japan continues to contribute to these organizations in both the human and financial resources (see 1-1 (2), 2-1-2 (1), 2-1-6 and 3-1-3 (4)).
Aiming at fostering common understanding about the rule of law at sea among countries, the Ministry of Foreign Affairs held an international symposium on the Law of the Sea in February 2015. Against the backdrop of increasing tension in the seas of Asia, the symposium entitled “The Rule of Law in the Seas of Asia: A Navigational Chart for Peace and Stability” was held, with a vigorous discussion among experts from home and abroad on the issues, including obligations of self-restraint and cooperation of coastal states in maritime areas pending delimitation.
(3) Initiatives in the fields of politics and security
It remains vital to ensure the smooth and effective operation of the Japan-U.S. Security Treaty, in order to bolster the foundations of Japan’s foreign policy and security. The new “Guidelines for Japan-U.S. Defense Cooperation” aimed at enhancing the deterrence and response capabilities for Japan-U.S. Alliance was announced in April. With the purpose of promoting cooperation between Japan and the U.S. in the field of environmental stewardship, the Agreement on Cooperation in the Field of Environmental Stewardship Supplementary to the Japan-U.S. Status of Forces Agreement was concluded in September (see 3-1-2).
In efforts to more proactively promote international cooperation in the field of management of defense equipment, Japan signed Agreements with France in March, and with India in December, concerning the Transfer of Defense Equipment and Technology. These Agreements aim at establishing a legal framework for defense equipment and technology to be transferred between the countries.
Japan also continues to undertake negotiations towards the conclusion of a peace treaty with Russia, which is a key issue.
In addition, Japan has been working on establishing a legal framework for information security that may serve as an improved foundation for sharing of classified information related to national security with relevant countries. Following the U.S., NATO, France, Australia and the UK, Japan agreed in principle on the Agreement on the Security of Information with Italy when Prime Minister Renzi visited Japan in August, and signed the Agreement concerning Security Measures for the Protection of Classified Military Information with India in December.
In the field of nuclear energy, Japan deposited an instrument of acceptance of the Convention on Supplementary Compensation for Nuclear Damage (CSC) with the Secretary-General of the International Atomic Energy Agency (IAEA) in January, by which the CSC entered into force in April. With regards to the ongoing negotiations of bilateral nuclear cooperation agreements, Japan achieved an agreement with India when Prime Minister Abe visited India in December.
(4) Initiatives in the fields of the economy and society
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 as well as people-to-people exchanges, and to 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 2015 include tax conventions, investment treaties, social security agreements, and air services agreements.Japan also worked on negotiations with the Asia-Pacific region and Europe for Economic Partnership Agreements (EPAs), actively promoting negotiations on broader regional economic partnership such as the Free Trade Agreement (FTA) among Japan, China and the ROK, the Regional Comprehensive Economic Partnership (RCEP) and the Japan-EU EPA. Regarding the Trans-Pacific Partnership (TPP) Agreement, the participants reached an agreement in principle on major elements in October and signed the Agreement in February 2016. In the field of bilateral EPAs, the EPA between Japan and Australia came into effect in January, and Japan signed an EPA with Mongolia in February. Under the World Trade Organization (WTO) systems, Japan contributed to further development of the multilateral trade system through the conclusion of the Trade Facilitation Agreement in June. In the field of intellectual property protection, the Patent Law Treaty and the Singapore Treaty on the Law of Trademarks were approved by the Diet in June, and were concluded in March 2016. In addition, Japan accepted the Agreement Establishing ASEAN+3 Macroeconomic Research Office (AMRO) in June. With a view to protecting and enhancing the livelihoods and activities of Japanese citizens and companies, Japan is working on the appropriate implementation of existing international agreements as well as utilizing the dispute settlement system of the WTO.
In social fields such as human rights, fisheries, maritime affairs, aviation and labor, which have a major influence on the livelihoods of the people, Japan is actively participating in negotiations to ensure that Japan’s stance is reflected in international agreements. For example, with regards to the environmental area, the Minamata Convention on Mercury was approved by the Diet in May, and was concluded in February 2016. In December 2015, Japan contributed to the adoption of the Paris Agreement at the 21st session of the Conference of the Parties to the UN Framework Convention on Climate Change (COP21).
(5) Initiatives in the field of criminal justice
The ICC is the first-ever permanent international criminal court for prosecuting and sentencing 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.
Financially, Japan is the largest contributor to the ICC, accounting for approximately 17.2% as of 2015. As regards human resources, Japan has consistently produced judges since its accession to the ICC (Judge Kuniko Ozaki currently in service). Furthermore, at the Assembly of States Parties to the ICC Rome Statute held in November 2015, Mr. Hiroshi Fukuda, Member of the Advisory Committee on nominations of judges (ACN), and Mr. Motoo Noguchi, Member of the Board of the Directors of the Trust Fund for Victims (TFV), were re-elected to their respective positions. These developments demonstrate Japan’s active contribution to the activities of the ICC. As the ICC evolves as a full-fledged international criminal justice institution, it is imperative to secure cooperation with the ICC, establish the principle of complementarity, and to ensure the efficiency and effectiveness of its judicial procedures. At the Assembly of States Parties in November 2015, Japan contributed to the vigorous discussions among States Parties by emphasizing the importance of these issues as it did in previous years.
In the face of an increase in cross-border crime in recent years, Japan is further working on ensuring the submission of required proof from other countries. Japan is also proactive in strengthening international cooperation in the field of criminal justice by improving legal frameworks. Japan has been working on negotiating and concluding such international agreements as the Treaty on Mutual Legal Assistance in Criminal Matters (MLAT)2, the Treaty on Extradition3, and the Treaty on the Transfer of Sentenced Persons4.
- 2 In the aspects of criminal investigation and procedures, the legal framework that allows more efficient and prompt cooperation with authorities of other countries.
- 3 A legal framework having comprehensive and detailed provisions regarding extradition of criminals, to enable more effective cooperation for repressing crime.
- 4 A legal framework aiming to facilitate the social rehabilitation of foreign prisoners by giving them the possibility of serving their sentences in their own countries.