6 The Rule of Law in the International Community

Establishing the rule of law in the international community is of great significance in stabilizing relations between countries and realizing the peaceful settlement of disputes. 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 accepts³² 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, ICJ Judge Iwasawa Yuji (incumbent since 2018, ICJ's fourth-ever Japanese judge) was re-elected at the ICJ judges elections in November 2020. Through these contributions, Japan strives to enhance the effectiveness and universality of international courts and tribunals. In 2020, the Support Program for Internships at International Courts and other International Organizations was launched with the aim of developing human resources who can play an active role in international courts in the future. Through this project, active support is provided to Japanese interns at international judicial organizations (see the Column on page 265).

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 2015) and the Economic Dispute Settlement Division (established in 2020). To win in an international litigation, it is vital to have full knowledge of the context of the trial and its specific legal proceedings. The procedural laws that are applicable to trials in courts such as the ICJ, ITLOS, and the PCA are not necessarily stipulated clearly in writing, and there are also norms that have been accumulated through judicial precedents. In addition, procedural laws are also developing alongside the growing complexity of the facts that are disputed in international trials. The International Judicial Proceedings Division captures information on the trends and developments in law firms and among lawyers who are active in major international trials, and also works together with these lawyers to create an organization that can perform well in international trials. When it comes to addressing disputes of economic nature, the increasing importance of dispute settlements based on international agreements (the WTO agreements, Economic Partnership Agreements and investment agreements) has resulted in growing demand for strengthening MOFA's capability to achieve more strategic and effective resolution of the disputes. To this end, with the view to consolidating the legal experts versed in economic dispute settlement, the International Trade and Investment Economic Dispute Settlement Division under the Economic Affairs Bureau was newly rebuilt into the Economic Dispute Settlement Division and incorporated into the International Legal Affairs Bureau in August 2020. The division engages in litigation work (preparation of written submissions, handling of evidence, preparation and participation in oral proceedings, etc.), analysis of case law and academic theories, and also engages in dispute prevention. All those works are carried out in close collaboration with the relevant ministries and agencies, as well as with private law firms and academic experts and practitioners specializing in international economic law both in Japan and abroad ( see the Special Feature on page 267).

• 32 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.

1. About the Hague Conference on Private International Law (HCCH)

For about two months from September 2020, I participated in an internship at the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in The Hague (the Netherlands), with support from the Ministry of Foreign Affairs' Support Program for Internships at International Courts and other International Organizations.

The HCCH began with its first session held in 1893. Thereafter, it became a permanent organization in 1955 with the aim of coordinating among the civil laws and civil procedure laws of different countries, so as to facilitate the smooth resolution of conflicts and problems related to international relations between individuals. It is a small organization with about 30 staff members, but it has to date drawn up about 40 conventions related to private international law and international civil procedure laws. Japan has ratified seven of these, including the Hague Convention (the Convention on the Civil Aspects of International Child Abduction), which it ratified in 2014.

2. Tasks at HCCH

Building where the HCCH office is located
(The Hague, the Netherlands)

The internship at HCCH did not simply involve an experience of the workplace; instead, I was entrusted with various tasks to contribute immediately to the team. Specifically, I carried out research on the digitization of the international transmission of legal documents, as well as comparative research on the electronic signature laws of each country. With the increasing use of IT in judiciary in recent years, the aim of this work was to make it easier to utilize conventions on mutual legal assistance that were drawn up before the widespread use of the Internet. In addition to this, I was also given the opportunity to attend expert meetings on the topic of surrogate births, and meetings on the utilization of electronic signatures. It was stimulating and exciting to gain exposure to the forefront of the legal field.

Furthermore, as the majority of the staff were bilingual, there was no better environment to improve the English and French that I have been learning for many years, and to maintain my motivation for my linguistic studies. I believe my linguistic skills improved significantly in this environment. At the beginning, it took me a long time just to write one business e-mail, but I gradually became accustomed to it and was eventually entrusted to write letters to other international organizations.

3. Life in The Hague

Streets of The Hague: The Peace Palace that houses the International Court of Justice

The Hague is a city with rich international character. It is safe and very comfortable to live in. My heart skipped with delight on my daily commute on the bicycle, as I passed by rows of adorable brick houses along the canal, the beautiful Peace Palace, and the horse-mounted police patrolling around the city at a leisurely pace. After work and on the weekends, I spent time becoming acquainted with other interns and members of the staff. It was a very enriching and fulfilling time for me.

4. Participating in the Support Program

This Support Program allowed me to focus on the internship without having to face any financial difficulties, and made it possible for me to gain many invaluable experiences that cannot be covered in this column. I had hoped to take advantage of the linguistic skills and knowledge of Japanese law that I have cultivated so far to play an active role as an international lawyer in the future, but had been completely at a loss as to how I could harness my own strengths. Through this internship, I was able to experience for myself the potential and appeal of working as a member of an international organization, or as a lawyer involved in international trials in The Hague. I had the precious opportunity to consider my future career plans carefully. After my legal apprenticeship in Japan, I plan to work in a law firm as a corporate lawyer in the future. I shall never forget this experience and the enjoyment of working in an international organization, and aim to become a lawyer who can contribute to international trials that concern state parties.

Securing Japan's national interests through well-organized litigation work

In recent years, Japan has been involved in a number of complicated disputes with major countries/neighboring countries based on economic agreements. In light of this situation, the “Economic Dispute Settlement Division” was established in August 2020 under the auspices of the International Legal Affairs Bureau as a major effort to further strengthen MOFA's capability to engage in international adjudication and quasi-judicial proceedings, with the aim of achieving more strategic and effective resolution of economic disputes.

The mission of the Division is to carry out well-organized and high-quality litigation work in relation to economic disputes, based on international agreements such as the World Trade Organization (WTO) agreements, Economic Partnership Agreements (EPA), and investment agreements, and at the same time, to take measures necessary to prevent disputes from arising, thereby seeking to secure Japan's national interests in international economic disputes.

One of the notable latest trends in international economic disputes is that the WTO's dispute settlement mechanism is being actively utilized, with 598 cases (an average of about 24 cases a year) filed in the 25-year period since the WTO's establishment in 1995. However, the dysfunction of the WTO Appellate Body since the end of 2019 has become a serious issue that places the system itself at risk. Furthermore, there is a growing number of complex economic disputes that are closely linked to security concerns, such as the increase of tariffs against imports from China by the U.S. based on Section 301 of the Trade Act of 1974, and the measures taken by Saudi Arabia and other Gulf countries against Qatar. In light of the various trends related to economic policies having security implications in each country, the number of economic disputes is expected to increase worldwide, with a further increase in cases that are difficult to resolve.

As for investment agreements, more than 1,000 cases worldwide have been referred to international arbitration to date, by invoking the investor-state dispute settlement (ISDS) provisions. Of these, States lost in 30% of the cases. In this regard, the smallest amount of awards that a State was ordered to pay in 2019 was 7.9 million US dollars, and the largest amount was 8.4 billion US dollars*. As ISDS procedures are provided for in almost all of the investment agreements concluded by Japan, there needs to be a robust preparedness to respond to a potential claim.

Against this backdrop, to further promote the rule of law, which is one of the cornerstones of Japan's diplomatic policies, it is important to resolve economic problems between States using legal and technical means, preventing them from becoming diplomatic issues. It is fair to say that the economic dispute settlement system plays a major role to that end. It also contributes to the creation of a business environment that enables Japanese companies and corporations to conduct global economic activities in a much more transparent and predictable manner.

To enable a robust engagement in economic disputes with unified teamwork, the Economic Dispute Settlement Division promotes close cooperation with the relevant ministries and agencies, private law firms both in Japan and abroad, as well as academic experts and practitioners specializing in international law including international economic law.

With this new Division at the core of its efforts, MOFA will further strengthen its capability to proactively engage in international economic dispute settlement.

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• *UNCTAD: Investment Policy Hub, Investment Dispute Settlement Navigator (https://investmentpolicy.unctad.org/investment-dispute-settlement)
  

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, such as through its recommendations on enlargement of the membership of UNCITRAL and new projects.

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 in Asia including Japan, 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 was held in 2019, but not in 2020 due to the impact of the COVID-19 pandemic. There are plans to continue holding it from 2021. 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.

(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 15th East Asia Summit (EAS), held in November 2020, Prime Minister Suga 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 and regulation 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 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. 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 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 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 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). In the International Seabed Authority (ISA), which was established pursuant to UNCLOS for the primary purpose of managing deep sea-bed mineral resources, regulations on exploitation of deep sea-bed mineral resources were considered at the meeting of the Council held in February 2020 and work on the formulation of the relevant standards and guidelines was carried out. 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 taking the lead 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 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. Although the fourth meeting had been scheduled for March 2020, it was postponed due to the COVID-19 pandemic. 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 in the political and security fields. In the field of security, Japan advanced efforts to conclude Acquisition and Cross-Servicing 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, Agreements concerning the Transfer of Defence Equipment and Technology, which set out provisions on the handling of defence equipment and technologies to be transferred, and Agreements on the Security of Information, which serve as the basis for the sharing of classified information on security with the relevant countries. Japan signed an ACSA with India in September, and reached an agreement in principle with Viet Nam in October on an Agreement concerning the Transfer of Defense Equipment and Technology. Japan is also continuing negotiations including toward the conclusion of a peace treaty with Russia, which is a key issue. In the area of nuclear energy, in light of the UK's withdrawal from the European Atomic Energy Community (Euratom), Japan signed the Protocol Amending the Japan-UK Nuclear Cooperation Agreement 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 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 negotiated and signed or concluded in 2020 include tax conventions, investment treaties, and social security agreements with various countries and regions. Furthermore, Japan also engaged actively in negotiations on Economic Partnership Agreements (EPAs) and other agreements, with the aim of expanding free and fair economic spheres and strengthening wide-ranging economic relationships.

The Japan-U.S. Trade Agreement and the Japan-U.S. Digital Trade Agreement were signed in October 2019 and entered into force in January 2020. The Japan-UK Comprehensive Economic Partnership Agreement (Japan-UK EPA) was signed in October 2020 and entered into force in January 2021. The Regional Comprehensive Economic Partnership (RCEP) Agreement was signed in November 2020.

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, the 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. For example, in the aviation sector, Japan signed the Japan-EU Bilateral Aviation Safety Agreement in June. In the field of maritime affairs, Japan concluded the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Convention) and the Nairobi International Convention on the Removal of Wrecks (Nairobi Convention) in July.

(5) Initiatives in the Field of Criminal Justice

The ICC is the first-ever permanent international criminal court for prosecution and punishment, 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 2020. With regard 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 at the Ministry of Foreign Affairs and Public Prosecutor at the Supreme Public Prosecutors Office of Japan, began serving her nine-year term in March 2018. In addition, Japan has cooperated with activities of the ICC from various positions. Mr. Noguchi Motoo, former Ambassador for International Judicial Cooperation and Public Prosecutor of Supreme Public Prosecutors Office of Japan, served as an independent expert of the panel of experts to assist the Committee on the Election of the Prosecutor, while Mr. Kozaki Hitoshi served on the Committee on Budget and Finance. 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 actively engages in addressing these challenges, such as through its participation in the working groups of the Assembly of States Parties.

Along with these efforts, in the face of an increase of cross-border crimes in recent years, Japan is further working on ensuring judicial cooperation, such as the mutual submission of necessary evidence. 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)³³, the Treaty on Extradition³⁴, and the Treaty on the Transfer of Sentenced Persons³⁵. In August, the Treaty between Japan and the Socialist Republic of Viet Nam on the Transfer of the Sentenced Persons entered into force.

• 33 A legal framework that allows for efficient and prompt cooperation with legal authorities of other countries in criminal investigations and procedures.
• 34 A legal framework having comprehensive and detailed provisions regarding the extradition of criminals to enable more effective cooperation for repressing crime.
• 35 A legal framework aiming to facilitate the social rehabilitation of sentenced persons by giving them the opportunity to serve their sentences in their own countries.