6 The Rule of Law in the International Community

(1) Japan's Diplomacy Strengthening the Rule of Law

Strengthening the rule of law is a pillar of Japan's foreign policy. Japan opposes unilateral attempts to change the status quo by force or coercion, and strives to maintain its territorial integrity, secure its maritime and economic interests, and protect its citizens. Examples of Japan's efforts in this regard include the consistent affirmation of the maintenance and strengthening of a free and open international order based on the rule of law at various fora, including international conferences such as the UN General Assembly and meetings with relevant states, to promote the rule of law in the international community. At the G7 Taormina Summit (Italy) in May 2017, the leaders of the G7 reaffirmed their commitment to maintaining the rule-based order in the maritime domain based on the principles of international law, including as reflected in the United Nations Convention on the Law of the Sea (UNCLOS), and to the peaceful settlement of disputes including arbitration. From the perspective of promoting the rule of law in the international community, Japan has been contributing to the peaceful settlement of inter-state disputes based on international law, formation and development of a new international legal order, and the development of legal systems and human resources in various countries.

A Peaceful Settlement of Disputes

In order to encourage peaceful settlement of disputes via international judicial institutions while striving to comply faithfully with international law, Japan accepts the compulsory jurisdiction of the International Court of Justice (ICJ), which is the principal judicial organ of the United Nations³⁴, and constructively contributes towards the establishment of the rule of law in the international community, via the provision of human and financial resources. Japan has delivered judges to international judicial bodies such as 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 3-1-6 (2)), President of the ITLOS from October 2011 to September 2014, and Judge Kuniko Ozaki at the International Criminal Court (ICC; see 3-1-6 (5)), Second Vice-President of the Court from March 2015 to March 2018. With regards to the ICC, at the election held in December 2017, Japanese candidate Tomoko Akane, Ambassador for International Judicial Cooperation and Public Prosecutor of Supreme Public Prosecutors Office of Japan, was elected as a new Judge. Japan is also the largest financial contributor to the ITLOS and the ICC. Through these contributions, Japan strives to enhance the effectiveness and universality of international courts and tribunals. To further strengthen the structure of the Ministry of Foreign Affairs in dealing with international litigations, efforts are ongoing to enhance expertise on international judicial proceedings as well as to build up strengthened networks with lawyers in and outside Japan, especially by the International Judicial Proceedings Division established in the International Legal Affairs Bureau in April 2015.

• 34 A declaration that states parties to the Statute of the ICJ recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the ICJ, in accordance with Article 36, paragraph 2 of its Statute. Only 73 countries, including Japan, have deposited such declaration to date.

B International Rule-making

International rule-making to respond to the issues the global community faces is one of the important efforts to strengthen the rule of law. In developing international rules, Japan has participated actively in negotiations in specific fields and has taken initiatives in rule-making processes from the planning phase, in order to reflect Japan's own ideas and views in cross-sectoral initiatives in the UN, etc., and to realize the appropriate development of international laws. Specifically, Japan has been actively involved in the rule-making process within various international frameworks including the codification work at 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 forums such as the Hague Conference on Private International Law (HCCH), 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 a Special Rapporteur on the topic of “Protection of the Atmosphere,” contributing greatly to the development of international law through the deliberation of draft texts and other documentation. Japan also dispatches government representatives to various meetings of the HCCH, UNCITRAL, and UNIDROIT, taking an active lead in discussions. In addition, Professor Hideki Kanda from Gakushuin University serves as a board member of UNIDROIT. Japan also cooperates with the Asian-African Legal Consultative Organization (AALCO), a regional forum on international law, by providing personnel and financial support.

C Development of Domestic Legislation and Other Matters

Japan not only takes steps to appropriately improve its own national laws so as to comply with international law, but also actively supports the development of domestic legislation of Asian countries, and undertakes international cooperation related to the rule of law in order to further develop the rule of law. For example, the Ministry of Foreign Affairs and the Japanese Society of International Law, supported by the Nippon Foundation, co-organize the “Asia Cup,” an international law moot court competition for students from Asia with the aim of raising awareness about the importance of the peaceful settlement of disputes, nurturing future generations in the field of international law, and strengthening exchange and communication among them. On the occasion of its 19th session in 2017, university students from 11 countries in Asia (Japan, India, Indonesia, Singapore, Thailand, China, Nepal, the Philippines, Viet Nam, Malaysia, and Pakistan) competed in written and oral pleadings on the theme of a fictional international dispute on the Law of the Sea.

International law moot court competition, “2017 Asia Cup” (August, Tokyo, Ministry of Foreign Affairs; Photo: Executive Committee of the 2017 Asia Cup)

With respect to Japan's international judicial cooperation in the area of the rule of law, including support for the establishment of legal systems in Asia and human resource development in the field of criminal justice for the entire region, Japan actively promoted such cooperation in an event held on the sidelines of the AALCO Annual Session following the previous year.

(2) Initiatives in the Maritime Sector

In recent years, there has been an increasing number of cases of friction and tension between states taking place in the seas of Asia, attracting significant concern from the international community. 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. Based on these Three Principles, Japan is actively engaged in the maintenance and development of open and stable seas. Specifically, at the G7 Taormina Summit (Italy) held in May 2017, Prime Minister Abe led discussions on maritime security. The leaders of the G7 shared the view on the importance of rules-based order in the maritime domain, and they reaffirmed their commitment to the peaceful settlement of maritime disputes, including arbitration. Furthermore, at the East Asia Summit (EAS) held in November, Prime Minister Abe announced Japan's intention to move forward efforts to maintain and strengthen a free and open maritime order in the Indo-Pacific based on the rule of law, and shared the importance of promoting such efforts, with the participating countries.

The UN Convention on the Law of the Sea (UNCLOS) plays an important role in the rule of law at sea. UNCLOS established the International Tribunal for the Law of the Sea (ITLOS) for the peaceful settlement of maritime disputes and maintenance and development of the legal order at sea. Japan, while promoting the rule of law at sea, attaches importance to the role played by ITLOS and has provided personnel to the Tribunal by producing two Japanese judges successively and has also been the largest financial contributor since the establishment of ITLOS.

Likewise, the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA) also play important roles in the operation of the system for defining the outer limits of the continental shelf and management of deep sea-bed mineral resources respectively. Japan continues to cooperate with these organizations in terms of both human and financial resources (see 3-1-3 (4)).

Aiming to foster common understanding about the rule of law at sea, the Ministry of Foreign Affairs held the International Symposium on the Law of the Sea in February and December. Renowned scholars of international law, lawyers, ITLOS judges, and CLCS members from Japan and overseas were invited, where they engaged in vigorous exchanges of opinions on issues related to the Law of the Sea.

International Symposium on the Law of the Sea (February 2 – 3, Mita Kaigisho, Tokyo)

(3) Initiatives in the Fields of Politics and Security

In order to contribute more actively towards international peace and security based on the Legislation for Peace and Security, enacted in 2015 against the background of the severe security environment surrounding Japan, the scope of the provision of supplies and services by the JSDF to foreign armed forces was expanded. Following the enactment of the legislation, the Acquisition and Cross-Serving Agreements, which set out the settlement procedures and other matters on the mutual provision of supplies and services between the JSDF and foreign armed forces, were developed, and new agreements entered into force with the U.S. in April 2017, with the UK in August 2017, and with Australia in September 2017. Furthermore, in order to develop a foundation for promoting international cooperation in the field of security, Japan is keeping up with efforts to negotiate agreements concerning the transfer of the defence equipment and technologies, which set out provisions on the handling of defense equipment and technologies to be transferred, as well as measures for the protection of information that will form the basis for the sharing of classified information on security with the relevant countries. Japan also continues negotiations towards the conclusion of a peace treaty with Russia, which is a key issue.

In the field of peaceful uses of nuclear energy, the agreement with India entered into force in July.

(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 2017 include tax conventions, investment treaties, and social security agreements. Japan also worked on negotiations with the Asia-Pacific region and Europe for Economic Partnership Agreements (EPAs), actively advancing negotiations on broader regional economic partnership such as the Free Trade Agreement (FTA) among Japan, China, and the ROK, and the Regional Comprehensive Economic Partnership (RCEP). Regarding the Trans-Pacific Partnership (TPP) Agreement, an agreement at the ministerial level on the TPP was confirmed by 11 countries in November. In December, negotiations on the Japan-EU EPA were concluded with an agreement.

Furthermore, with a view of 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, labor and social security, which are closely linked with the livelihoods of the people, Japan actively participates in negotiations to ensure that Japan's position is reflected in international agreements. In addition, in the field of environment, Japan concluded the Nagoya Protocol and the Nagoya-Kuala Lumpur Supplementary Protocol　in May and December, respectively.

(5) Initiatives in the Field of Criminal Justice

The ICC is the first-ever permanent international criminal court for prosecuting and sentencing, in accordance with international law, individuals who have committed the most serious crimes of concern to the international community. Since becoming a State Party to the ICC Rome Statute in October 2007, Japan has consistently supported and cooperated with the ICC's activities in various ways. Fiscally, Japan is the largest contributor to the ICC, accounting for approximately 16.5% of the entire contributions to the Court as of 2017. With regards to human resources, Japan has consistently produced judges since its accession to the ICC. Japan's candidate in the election of ICC judges held in December 2017, Tomoko Akane, Ambassador for International Judicial Cooperation and Public Prosecutor of Supreme Public Prosecutors Office of Japan, was elected. In addition, Hitoshi Kozaki of the Committee on Budget and Finance was re-elected, Motoo Noguchi continued to serve as the Chair of the Board of Directors of the Trust Fund for Victims, and Hiroshi Fukuda continued to serve on the Advisory Committee on Nominations of Judges. These developments demonstrate Japan's active cooperation for 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 efficiency and effectiveness of its judicial procedures. Japan engages in addressing these challenges through its participation in Assembly of States Parties, including continuing to serve as Co-chair for the Study Group on Governance and Focal Point on for non-cooperation issues.

Besides the aforementioned efforts related to the ICC, in the face of an increase in cross-border crime in recent years, Japan is further working on ensuring the submission of necessary proof from other countries. Japan is also actively engaged in improving legal frameworks for promoting international cooperation in the field of criminal justice. Japan has been working on negotiations toward concluding international agreements as the Treaty on Mutual Legal Assistance in Criminal Matters (MLAT)³⁵, the Treaty on Extradition³⁶ and the Treaty on the Transfer of Sentenced Persons³⁷.

• 35 A legal framework that allows for an efficient and prompt cooperation with legal authorities of other countries in criminal investigation and procedures.
• 36 A legal framework having comprehensive and detailed provisions regarding the extradition of criminals to enable more effective cooperation for repressing crime.
• 37 A legal framework aiming to facilitate the social rehabilitation of foreign prisoners by giving them the opportunity of serving their sentences in their own countries.