6 The Rule of Law in the International Community

The rule of law is the concept that recognizes the superiority of the law over all forms of power; it is the basis of the international order that consists of friendly and equitable relations between states, as well as an essential cornerstone of a fair and just society within a country. The rule of law is also an important factor in ensuring the peaceful settlement of disputes between states and in promoting “good governance” in each state. Based on this view, Japan promotes the bilateral and multilateral rule-making and proper implementation of these rules in various fields, such as security, economic and social affairs, and criminal justice. Furthermore, in order to promote the peaceful settlement of disputes and the preservation of international legal order, Japan actively cooperates with international judicial organizations such as the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the International Criminal Court (ICC), to strengthen their functions via contributions both in terms of human and financial resources. In addition, Japan has been working to enhance the rule of law in the international community including Asian countries via provision of legal technical assistance, participation in international conferences, exchanges of views with various countries, and hosting of events on international law.

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

Strengthening the rule of law is one of the pillars 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 preservation and enhancement 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 Charlevoix Summit (Canada) held in June and the ASEAN-related Summit Meetings (Singapore) in November, the leaders reaffirmed their commitment to maintaining the rules-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 accepts²⁸ the compulsory jurisdiction of the ICJ, which is the principal judicial organ of the United Nations, and constructively contributes toward the establishment of the rule of law in the international community, via cooperation in terms of human and financial resources to numerous international courts. For example, Japan is the biggest financial contributor to ITLOS, the ICC, and the Permanent Court of Arbitration (PCA). In terms of human resources, there have been a number of Japanese judges serving on international judicial bodies, such as Judge Shunji Yanai to ITLOS (incumbent since 2005, President of ITLOS from October 2011 to September 2014) and Judge Kuniko Ozaki to the ICC (incumbent since 2010, Second Vice-President of the Court from March 2015 to March 2018) along with Judge Tomoko Akane (appointed in December 2017, incumbent since March 2018). With regard to the ICJ, following the retirement of Judge Hisashi Owada (who served from February 2003 until June 2018, including a term as President of the ICJ from March 2009 until June 2012), Japanese candidate Yuji Iwasawa, Professor of the University of Tokyo, was elected at the by-election of an ICJ judge in June 2018. He thus became the fourth Japanese ICJ judge to assume its duties. 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.

• 28 A declaration that states parties to the Statute of the ICJ recognize the jurisdiction of the ICJ as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, 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 principles and views in cross-sectoral initiatives in the UN, etc., and to realize the development of international laws. Specifically, Japan has been actively involved in the rule-making processes within various international frameworks including the codification work in the field of public international law 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 of guidelines 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 was re-elected at the governing council member election in December at UNIDROIT. Furthermore, at the election of member states of UNCITRAL held that same month, Japan was once again elected as a member state since the establishment of the commission. In addition to this, Japan also cooperates with the Asian-African Legal Consultative Organization (AALCO), the only intergovernmental body in the Asian-African regions on the international law, by providing human and financial resources. In particular, Japan hosted the 57th Annual Session of AALCO in Tokyo in October 2018, and representatives from Japan actively led the discussion on important topics such as peaceful settlement of disputes and the law of the sea from the perspective of international law experts.

Side Event of the Annual Session of the AALCO (October 10, Tokyo Prince Hotel)

Prof. Dr. Kennedy Gastorn
Secretary General
Asian-African Legal Consultative Organization

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From October 8 to 12, 2018, I have had the honour to organize the 57th Annual Session of the Asian-African Legal Consultative Organization (AALCO) in Tokyo, Japan. It was my second Annual Session to organize in my capacity as Secretary General of AALCO, while it was the fifth time that AALCO's Annual Session was hosted by Japan, following the last one in 1994.

AALCO started in 1956 to serve as an advisory body to Member States in the field of international law and as a forum for Asian-African cooperation in legal matters of common concern. Headquartered in New Delhi, India, and being a sole intergovernmental organization in international law that covers both Asia and Africa, its activities have been gradually broadened to keep pace with the needs and requirements of its Member States. The membership of the Organization has grown from a mere seven countries to the current 47, and nowadays the role of the Organization has become increasingly important, especially in promoting the rule of law in these two regions. As one of the founding members of AALCO, Japan has supported the activities of the Organization since its creation. The Annual Session was highly attended by almost 200 representatives from 38 out of 47 current Member States, 6 Non-Member States and 6 International Organizations, as well as 4 AALCO Regional Commercial Arbitration Centres.

The Chief Guests of the Annual Session, H.E. Mr. Taro Kono, Minister for Foreign Affairs of Japan, and H.E. Mr. Takashi Yamashita, Minister of Justice of Japan, recalled the contributions of AALCO towards the progressive development of international law and highlighted Japan's proactive engagement in the Organization since its establishment. Also, H.E. Mr. Shinzo Abe, Prime Minister of Japan, received a courtesy call from high-level delegations participating in the Annual Session.

For this Annual Session, Japan, in coordination with the AALCO Secretariat, carefully provided a platform for Member States to deliberate on important topics of international law such as the law of the sea, peaceful settlement of international disputes, international trade and investment law, selected items on the agenda of the International Law Commission, international law in cyberspace and international legal issues related to the question of Palestine. In addition, a number of side events were hosted by the Government of Japan on such topics as the Law of the Sea and the 20th anniversary of the Rome Statute on the International Criminal Court (hosted by the Ministry of Foreign Affairs of Japan) as well as the 14th United Nations Congress on Crime Prevention and Criminal Justice in 2020 (hosted by the Ministry of Justice of Japan).

The deliberations on the substantive agenda items were focused and rich in content, and included insights and experiences shared by Member States. It is noteworthy that a new agenda item of “Peaceful Settlement of Disputes” was introduced for the first time to the agenda of an Annual Session of AALCO at the proposal of Japan. The inclusion of this new topic was highly appreciated in light of the current international trend and will provide a new thrust to the Organization. The Session was also path breaking as it gave the mandate to the Secretary-General, by virtue of recommendations adopted by Member States, to implement the Organization's annual work plan with greater flexibility so that it can better meet the evolving needs of the Member States.

Also noteworthy is that, as a new initiative for this Annual Session, prominent scholars and practitioners in the field of international law were invited as expert speakers to facilitate deliberations. The speakers included, among others, Mr. Miguel de Serpa Soares, United Nations Under-Secretary General for Legal Affairs.

Amongst other notable developments, AALCO signed a Memorandum of Understanding with the International Sea Bed Authority (ISA). Also, the Government of Japan announced that it would launch a new programme starting next year to support the capacity building of AALCO Member States in the area of international law. I welcome these developments as they directly respond to the capacity building needs of the Member States.

This year's Annual Session was a remarkable one in that it introduced many aforementioned initiatives to engage the Member States in active discussions on international legal issues of great relevance to them. I believe this has been an important milestone in the path of AALCO realizing its full potential as a sole advisory body in international law in Asia and Africa, and look forward to supporting the Member States.

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 legal systems especially in 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. The occasion of its 20th session in 2018 recorded participation from 65 universities in 19 countries. Here, university students from 15 countries (Japan, Bangladesh, China, India, Indonesia, the ROK, Malaysia, Mongolia, Nepal, Pakistan, the Philippines, Russia, Singapore, Thailand, and Viet Nam) took part in oral proceedings round held in Tokyo. They competed in written and oral pleadings in English on the themes of fictional international disputes on exercising the right of self-defense versus non-nation-state actors and the law of the sea.

International law moot court competition, “2018 Asia Cup” (August, Tokyo, Ministry of Foreign Affairs)

(2) Initiatives in the Maritime Sector

For Japan, as a maritime nation, maintaining and strengthening maritime order based on the rule of law is an issue of the utmost importance. In his keynote address at the 13th Asia Security Summit (Shangri-La Dialogue) in May 2014, Prime Minister Abe proposed the “Three Principles of the Rule of Law at Sea” ((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). Ever since then, Japan has consistently advocated these principles. For example, at the 13th East Asia Summit (EAS) in November 2018, Prime Minister Abe emphasized that a free and open maritime order based on the rule of law forms the cornerstone for peace and prosperity in the Indo-Pacific region.

UNCLOS serves as a foundation for the rule of law in the seas. This Convention has been concluded by 167 countries, including Japan (as well as some regions not officially recognized as nations by Japan), and the EU. The Convention comprehensively provides principles governing the sea, including the freedom of navigation and overflight over the high seas. It also stipulates the rights and obligations under international law on the development of marine resources and so on. In particular, the provisions of this Convention related to areas such as territorial waters and exclusive economic zones are widely accepted as established customary international law. In addition, the recognition that activities conducted on the seas ought to be carried out according to the provisions of this convention is widely shared among the international community. As this indicates, the Convention provides a comprehensive foundation for the stability and development of maritime order.

Under UNCLOS, the International Tribunal for the Law of the Sea (ITLOS) was established in 1996 in Hamburg, Germany for the peaceful settlement of maritime disputes and maintenance and development of the legal order at sea. The ITLOS deals with a wide range of cases, including the delimitation of maritime boundaries in recent years in particular, and the importance of the Tribunal has been growing. Japan attaches importance to the role played by the ITLOS, and since its establishment it has dispatched two Japanese judges successively to the Tribunal and has also been the largest financial contributor.

The Commission on the Limits of the Continental Shelf (CLCS) established pursuant to UNCLOS also plays an important role in the operation of the system for defining the outer limits of the continental shelf. Since the establishment of the CLCS, Japan has continued to cooperate with the Commission in terms of both human and financial resources, such as by continuously sending members (Japan's current member of the Commission is Professor Toshitsugu Yamazaki from the University of Tokyo). Another recent development was the deliberation for formulating fair rules on exploitation started in 2018 under the International Seabed Authority (ISA), which was also established pursuant to UNCLOS for the primary purpose of managing deep sea-bed mineral resources. Japan actively takes part in negotiations in order to reflect its standpoint in these rules. It has also traditionally provided support for capacity building to developing countries with deep sea-bed related technologies, and has been appreciated as a leading country in rule-making in deep sea-bed. Japan organized “Forefront of deep sea-bed resources development technology” as a side event to the AALCO Annual Meeting in October 2018. Prominent scholars of international law and practitioners were invited from overseas to the event, and technologies for exploration of the deep sea-bed resources or environmental impact assessments developed by Japan were exhibited to other member states.

Moreover, the decision was made to convene an intergovernmental conference (IGC) to elaborate the text of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ), which was adopted via resolution 72/249 of the UN General Assembly in December 2017. The first meeting of the IGC was held in September 2018. The Government of Japan actively takes part in discussions in order to ensure that Japan's perspective is reflected in a new international agreement by putting its emphasis on striking a balance between the dual aspects of conservation and sustainable use of the BBNJ.

(3) Initiatives in the Political and Security Fields

Acquisition and Cross-Serving Agreements (ACSA), 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 signed with Canada and France. Furthermore, in order to develop a foundation for promoting international cooperation in the field of security, Japan is advancing efforts to negotiate agreements concerning the transfer of defense equipment and technologies, which set out provisions on the handling of defense equipment and technologies to be transferred, as well as agreements on measures for the protection of information that will form the basis for the sharing of classified information on security with the relevant countries. Japan has also concluded the Strategic Partnership Agreement (SPA) with the EU and EU member states to serve as the legal foundation for future cooperation in political and security fields among others. Japan is also continuing negotiations toward the conclusion of a peace treaty with Russia, which is a key issue.

(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 2018 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), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP11 Agreement) was signed by 11 countries in November, and entered into force in December. Moreover, the Japan-EU EPA was signed in July, and following an exchange of diplomatic notes in December, the agreement entered into force in February 2019.

Furthermore, with a view to protecting and enhancing the livelihoods and activities of Japanese citizens and companies, Japan is working on the proper implementation of existing international agreements as well as utilizing the dispute settlement system of the World Trade Organization (WTO).

In social fields such as human rights, environment, fisheries, maritime affairs, aviation, labor and social security, which are closely linked with the daily lives of the people, Japan actively participates in negotiations of international agreements to ensure that Japan's positions are reflected and also concludes such agreements. For example, in the fisheries field, Japan signed the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean in October. In addition, in the field of environment, Japan concluded the Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer in December.

(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 the ICC's activities and cooperated with the Court in various ways. Fiscally, Japan is the largest contributor to the ICC, accounting for approximately 16.5% of the entire assessed contributions to the Court as of 2018. 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 have demonstrated 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 Points (Contact Point) for non-cooperation issues.

Besides the aforementioned efforts related to the ICC, in the face of an increase of cross-border crimes in recent years, Japan is further working on ensuring the mutual submission of necessary proof with 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 such as the Treaty on Mutual Legal Assistance in Criminal Matters (MLAT)²⁹, the Treaty on Extradition³⁰ and the Treaty on the Transfer of Sentenced Persons³¹.

• 29 A legal framework that allows for an efficient and prompt cooperation with legal authorities of other countries in criminal investigation and procedures.
• 30 A legal framework having comprehensive and detailed provisions regarding the extradition of criminals to enable more effective cooperation for repressing crime.
• 31 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.