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 peaceful settlement of disputes between states and in promoting “good governance” in each state. Based on this view, Japan promotes bilateral and multilateral rule-making and the proper implementation of these rules in various fields that include 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 both human and financial resource contributions. In addition, Japan has been working to enhance the rule of law in the international community, including Asian countries, through provision of legal technical assistance, participation in international conferences, exchanges of views with various countries, and hosting events on international law.

(1) Japan's Diplomacy to Strengthen 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, and initiatives to promote, 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. With a view to 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, the 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 accepts³⁴ the compulsory jurisdiction of the ICJ, the principal judicial organ of the UN, and constructively contributes to establishing the rule of law in the international community via cooperation in providing human and financial resources to numerous international courts. For example, Japan is the largest financial contributor to 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, including Judge Yanai Shunji to ITLOS (incumbent since 2005, President of ITLOS from October 2011 to September 2014) and Judge Akane Tomoko to the ICC (incumbent since March 2018). With regard to the ICJ, following the retirement of Judge Owada Hisashi (who served from February 2003 until June 2018, including a term as President of the ICJ from March 2009 until June 2012), Japanese candidate Iwasawa Yuji, Professor of the University of Tokyo, was elected at the ICJ judge by-election in June 2018. Professor Iwasawa is ICJ's fourth-ever Japanese judge (see the Column on page 223). Through these contributions, Japan strives to enhance the effectiveness and universality of international courts and tribunals. To further strengthen the capability 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 2015.

• 34 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 74 countries, including Japan, have made such declaration to date.

Iwasawa Yuji

At the Great Hall of Justice of the Peace Palace

I have been serving as a judge at the International Court of Justice (ICJ) since June 2018. The ICJ is an international court for settlement of inter-state disputes located in The Hague, Netherlands. It is the “principal judicial organ” of the United Nations. It contributes not only to settling international disputes but also to the clarification and development of international law through its interpretation and application, and thus can be described as the most authoritative international court in the international community. Many important concepts and legal principles of international law have been pronounced by the ICJ and accepted by states. An example is the concept of “obligations erga omnes,” namely, obligations owed by states to the international community as a whole. The ICJ is composed of 15 judges of different nationalities, elected by the UN General Assembly and Security Council. I am the fourth Japanese judge at the ICJ, following my predecessors Dr. Tanaka Kotaro (former Chief Justice of the Supreme Court), Dr. Oda Shigeru (former Professor of Tohoku University), and Mr. Owada Hisashi (former Vice-Minister for Foreign Affairs and Permanent Representative to the UN). Actually, I am the seventh if we include Dr. Oda Yorozu (former Professor of Kyoto University), Dr. Adachi Mineichiro (former Ambassador to France), and Dr. Nagaoka Harukazu (former Ambassador to France), who served on the Permanent Court of International Justice, which preceded the ICJ.

The ICJ has many pending cases at present (17 cases as of December 2019). This is to be welcomed as proof of confidence in the Court that cases are brought to it successively. Many observers and reporters crowd into the courtroom for oral proceedings and for the delivery of judgments in cases attracting public attention. In recent years, oral proceedings and delivery of judgments have been broadcast through the Internet, and thus are watched closely by a considerable number of people around the world.

In the approximately one and a half years since my appointment as a judge, I have sat in eight cases. The ICJ finalizes judgments after numerous deliberations. While it is an honor to participate in preparing judgments in important cases, I have felt a sobering sense of responsibility at the same time. Before I was appointed as a judge, I had lectured on international law at the Faculty of Law, the University of Tokyo. My experience in research and teaching in the field of international law for more than 40 years has given me a strong grounding in fulfilling my duties as a judge. I have previously studied and conducted research abroad, including three years in the U.S., three and a half years in the UK, and one year in France. In addition, I have practical experiences in international law, serving for three years as a member of the United Nations Permanent Forum on Indigenous Issues, nine years as a judge on the Asian Development Bank Administrative Tribunal (including three years as Vice-President), and eleven and a half years as a member of the United Nations Human Rights Committee (including three and a half years as Chairperson). These experiences are also very helpful in my present work.

At the Peace Palace where the International Court of Justice is located

Although the ICJ hears about six cases per year in recent years, the total number of staff including 15 judges is just over 100. People are often surprised that the ICJ has consistently delivered important judgments with such limited human resources.

I live within walking distance to the Court and usually walk to work. At universities where I used to work, when I had no lectures, I often conducted research at home. Similarly, at the ICJ, I frequently work from home. I am leading a very busy life, conducting research between working for the ICJ. The Hague is a nice and quiet city full of greenery. When I have time, I would like to enjoy my life in The Hague more, such as by taking walks around the area.

B International Rule-making

International rule-making to respond to issues the global community faces is one of the important efforts toward strengthening the rule of law. Along with actively promoting the conclusion of bilateral and multilateral treaties aimed at building a legal foundation for achieving goals it shares with other countries, Japan is demonstrating initiative starting at the planning phase in creating rules for developing international laws that reflect its ideals and positions in cross-sectoral efforts in the framework of the UN and other fora. Specifically, Japan has been actively involved in the rule-making processes within various international frameworks that include codification work in the field of public international law at the International Law Commission (ILC) and the sixth Committee of the UN 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), the UN Commission on International Trade Law (UNCITRAL), and the International Institute for the Unification of Private Law (UNIDROIT). In the ILC, Dr. Murase Shinya, Professor Emeritus of Sophia University, serves as a Special Rapporteur on the topic of “Protection of the Atmosphere,” contributing to the development of international law through the deliberations in the ILC, especially those on the draft guidelines of the said topic. Japan also sends Government representatives to various meetings of the HCCH, UNCITRAL, and UNIDROIT, taking an active lead in the discussions. In addition, Dr. Kanda Hideki, Professor of Gakushuin University, contributes to the development of the work plan at UNIDROIT. Japan has also been showing its presence as a member nation of UNCITRAL since the founding of the commission.

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, while cooperating internationally on efforts related to further developing 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. The Asia Cup is an international law moot court competition for students, which aims to raise awareness about the importance of the peaceful settlement of disputes, nurture future generations in the field of international law, and strengthen exchange and communication among them. The 21st Asia Cup held in 2019 recorded participation from 73 universities in 17 countries. Here, university students from 15 countries (Japan, Bangladesh, China, India, Indonesia, the ROK, Malaysia, Myanmar, Nepal, Pakistan, the Philippines, Russia, Singapore, Thailand, and Viet Nam) were selected to take part in the oral round (the main event). They competed in the written and oral proceedings in English on given fictional inter-state disputes concerning the law of the sea and the exemption of government officials from another country's criminal jurisdiction. Japan is also engaging in cooperation concerning human resources and finances with the Asian-African Legal Consultative Organization (AALCO), the only inter-governmental organization in the Asia/Africa region that is engaged in international law.

Final round of the 2019 Asia Cup (August 7, Tokyo)

(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 14th East Asia Summit (EAS), held in November 2019, Prime Minister Abe emphasized that a free and open maritime order based on the rule of law forms the cornerstone of peace and prosperity in the Indo-Pacific region.

The United Nations Convention on the Law of the Sea (UNCLOS) serves as a foundation for the rule of law at sea. This convention has been ratified by 167 countries, including Japan (including some regions not officially recognized as nations by Japan), and the EU. The convention comprehensively provides for principles governing the sea, including the freedom of navigation and overflight of the high seas. It also stipulates rights and obligations under international law on the development of marine resources, among other things. The provisions of this convention that concern 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 problems concerning the oceans and seas grow more complex and diverse, it will be important to preserve and strengthen the maritime order based on this convention, which serves as a comprehensive and universal legal framework.

Under the 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 the preservation and advancement of law and 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 has successively dispatched two Japanese judges to the tribunal since its establishment.

The Commission on the Limits of the Continental Shelf (CLCS) established pursuant to the 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 through means such as continuously producing members (Japan's current member of the Commission is Professor Yamazaki Toshitsugu from the University of Tokyo). Another recent development has been the continued formulation of fair rules on exploitation of deep sea-bed mineral resources that began in 2018 under the International Seabed Authority (ISA), which was established pursuant to the UNCLOS for the primary purpose of managing deep sea-bed mineral resources. Japan actively takes part in negotiations in order to reflect its standpoint on 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 the creation of rules governing the deep sea-bed.

The decision was made to convene an intergovernmental conference (IGC) to formulate a new international agreement under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ), which was adopted by resolution 72/249 of the UN General Assembly in December 2017. Three meetings of the IGC were held by August 2019. The Government of Japan actively takes part in discussions in order to ensure that Japan's perspective is reflected in the 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

In order to strengthen its legal basis for diplomatic activities, Japan is actively engaged in concluding international agreements concerning political and security fields. In the field of security, Japan advanced efforts to conclude the Acquisition and Cross-Servicing Agreement (ACSA), which sets out the settlement procedures and other matters on the mutual provision of supplies and services between the JSDF and foreign armed forces, the Agreement concerning the Transfer of Defence Equipment and Technology, which sets out provisions on the handling of defence equipment and technologies to be transferred, and the Agreement on the Security of Information, which serves as the basis for the sharing of classified information on security with the relevant countries. ACSAs with France and with Canada entered into force in June and July respectively, while an Agreement concerning the Transfer of Defence Equipment and Technology with Italy entered into force in April. Japan also reached an agreement in principle with Germany in February toward concluding an Agreement on the Security of Information. In addition, the Strategic Partnership Agreement (SPA) with the EU and EU member states, which serves as the legal foundation for future cooperation in political, security and other fields, provisionally went into effect in February. 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 for promoting the liberalization of trade and investment, as well as people-to-people exchanges, and for strengthening the foundations for the overseas activities of Japanese citizens and companies. The agreements that Japan signed or concluded include tax conventions, investment treaties, and social security agreements with various countries and regions in 2019. 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). In addition, the Japan-EU EPA was signed in July 2018 and entered into force in February 2019. The Japan-U.S. Trade Agreement and Japan-U.S. Digital Trade Agreement were signed in October 2019 and entered into force in January 2020 following a written notification to this effect issued in December 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 areas such as human rights, environment, fisheries, maritime affairs, aviation, labor and social security, which are closely linked to 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. In the fisheries field, for example, Japan concluded the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean in July. In the field of maritime affairs, Japan concluded the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (the Hong Kong Convention) in March.

(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 15.7% of the entire assessed contributions to the Court as of 2019. With regards to human resources, Japan has consistently produced judges since its accession to the ICC. The current judge, Ms. Akane Tomoko, former Ambassador for International Judicial Cooperation and Public Prosecutor of Supreme Public Prosecutors Office of Japan, began serving her nine-year term in March 2018. In addition, Mr. Noguchi Motoo, Ambassador for International Judicial Cooperation at the Ministry of Foreign Affairs and Public Prosecutor at the Supreme Public Prosecutors Office, serves as an independent expert, while Mr. Kozaki Hitoshi of the Committee on Budget and Finance serves as Committee Chair. As the ICC evolves into 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 in its judicial procedures. Japan engages in addressing these challenges through its participation in the Assembly of States Parties, including continuing to serve as Co-chair for the Study Group on Governance.

Along with these efforts, 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. Specifically, as efforts to improve 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),³⁵ the Treaty on Extradition,³⁶ and the Treaty on the Transfer of Sentenced Persons.³⁷ Additionally, the Agreement between the Government of Japan and the Government of the United States of America on Enhancing Cooperation in Preventing and Combating Serious Crime entered into force in January. In July, Japan signed the Treaty between Japan and the Socialist Republic of Viet Nam on the Transfer of Sentenced Persons.

• 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 to serve their sentences in their own countries.