6 The Rule of Law in the International Community

The rule of law is, generally, 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 maintenance 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 supporting the improvement of legal systems, participating in international conferences, exchanging 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, 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 maintenance 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 accepts the compulsory jurisdiction of the ICJ,³⁴ 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 ICJ Judge Iwasawa Yuji (incumbent since 2018, ICJ's fourth Japanese judge to date), Judge Yanai Shunji to the ITLOS (incumbent since 2005, the President of the ITLOS from October 2011 to September 2014), and Judge Akane Tomoko to the ICC (incumbent since March 2018). 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 litigations in the future. Through this project, active support is provided to Japanese interns at international judicial organizations.

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, the 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 World Trade Organization (WTO) agreements, Economic Partnership Agreements (EPA) 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 Economic Dispute Settlement Division was established in August 2020. In the handling of dispute settlements under the WTO agreements and other agreements, 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.

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

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, whose term is from 2009 to 2022), 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 (see Column on page 239). At the ILC elections held in November, Professor Asada Masahiko, Professor of Doshisha University and Professor Emeritus of Kyoto University, was elected (for the term from 2023 to 2027, making him the sixth Japanese member of the ILC to date). 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, chairs the Digital Assets and Private Law working group in UNIDROIT, and contributes to leading-edge discussions on digital finance. Japan has also been showing its presence as a member state of UNCITRAL since the founding of the commission, such as by leading discussions and realizing the enlargement of the membership of UNCITRAL, and proposing new projects in the field of dispute settlement.

The author

The International Law Commission (ILC) of the United Nations was established in 1947 with the mission of promoting the codification and the progressive development of international law. It is a unique commission in the United Nations in that its members (34 members) sit in their individual capacity, and the members are not to take instructions from any States.

When I decided to specialize in international law at graduate school in 1967, I became interested in the activities of the ILC. Later, I started teaching at university, and I participated in the International Law Seminar organized by the ILC in 1975, and became involved in the work of the ILC as a Legal Officer of the UN Secretariat from 1980 to 1982. I continued to receive ILC documents from the Secretariat after that. I was elected as a member of the ILC in 2009, and my term will finally end at the end of 2022. Thus, I have been watching the ILC, from outside and inside, for more than half a century.

Shortly after I assumed office as an ILC member, I proposed that the ILC should work on the topic “Protection of the atmosphere,” with a view to developing international law on air pollution and climate change, and this proposal was adopted. Initially, I faced strong opposition from the members of the five major powers, and I felt indignant that I had never been more humiliated in my life. However, my effort and perseverance were rewarded, and the guidelines were adopted in the 2021 session. Although it may take years, I hope that a comprehensive “Convention on the Protection of the atmosphere” comparable to the UN Convention on the Law of the Sea will be enacted based on these guidelines.

As members sit on the Commission in their individual capacity, intense clashes of egos sometimes occur among the members at the ILC. It is said that once the members from the United Kingdom and France became so aggravated that they nearly came to blows. As such a reserved person, I did not feel equal to the task; however, I think I have become considerably well-trained as I continue to serve on the Commission. Apart from “Protection of the atmosphere,” the ILC also has seven to eight items on its programme of work, and I always make myself be the first to speak. While it takes much preparation and courage to be the first to speak, I do so because it can have a certain impact on the flow of discussions in the Commission. When other members make unreasonable arguments, I exercise my right of reply and criticize immediately and severely. Having learned how to engage in legal arguments in seminars at Harvard Law School when I was young is helping me tremendously.

Meeting at the ILC; the author is second from the left in the front (center of the front screen)

The most important thing in the international community is the establishment of “the rule of law.” In order to establish this, it is first of all necessary to clearly formulate laws of the international community, that is, international law. International law before the Second World War mostly consisted of unwritten customary international law and often lacked certainty, which frequently led them to be a source of dispute between States. The role of the ILC has been to codify this customary law and systematize it into multilateral treaties as clear written law. At the same time, it is also necessary to promote the “progressive development” of international law based on the direction in which the international community should be heading. Thus, the ILC has adopted numerous multilateral conventions to date.

The international community still needs international lawmaking in various areas, and Japan's contribution is highly expected. To meet these expectations, it is desirable that not only the Ministry of Foreign Affairs and the Japanese Society of International Law, but Japan as a whole makes a collective effort to develop human resources who can take on the role.

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 22nd Asia Cup was held in 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” to be followed by every nation: (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. The 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 the Convention that concern areas such as territorial sea 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 the Convention is widely shared among the international community. As problems concerning the oceans and seas grow more complex and diverse, it is important to preserve and strengthen the maritime order based on the 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 (currently Judge Yanai Shunji (as of December 31, 2021)).

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 delineating 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 (as of December 31, 2021)). In the International Seabed Authority (ISA), which was established pursuant to the UNCLOS for the primary purpose of managing deep sea-bed mineral resources, work such as the formulation of the relevant standards and guidelines concerning the exploitation of deep sea-bed mineral resources progressed even during the COVID-19 pandemic. Japan works actively to ensure that its standpoint is reflected in these documents, 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 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. 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's ACSA with India entered into force in July, while Japan signed Agreements concerning the Transfer of Defense Equipment and Technology with Indonesia in March and with Viet Nam in September (entered into force on the same day). Japan also signed an Agreement on the Security of Information with Germany in March (entered into force on the same day). In the area of nuclear energy, the Protocol Amending the Japan-UK Nuclear Cooperation Agreement signed between Japan and the UK in December 2020 in light of the UK's withdrawal from the European Atomic Energy Community (EURATOM), entered into force in September.

(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 2021 include tax conventions, investment treaties, and social security agreements with various countries and regions. Furthermore, Japan also engaged actively in negotiations on EPAs and other agreements, with the aim of expanding free and fair economic spheres and strengthening wide-ranging economic relationships.

The Japan-UK Comprehensive Economic Partnership Agreement (Japan-UK EPA), signed in October 2020, entered into force in January 2021. The Regional Comprehensive Economic Partnership (RCEP) Agreement, signed in November 2020, entered into force in January 2022.

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 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 Agreement on Civil Aviation Safety between Japan and the European Union in June. In the field of maritime affairs, Japan concluded the Convention on the International Organization for Marine Aids to Navigation in July. In the fisheries sector, Japan concluded the Protocol to amend the International Convention for the Conservation of Atlantic Tunas in July.

(5) Initiatives in the Field of Criminal Justice

The ICC is the first-ever permanent international criminal court to prosecute and punish, 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% of the entire assessed contributions to the Court as of 2021. 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, with Ms. Harimoto Yukiko serving on the Committee on Budget and Finance, among others. 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),³⁵ the Treaty on Extradition,³⁶ and the Treaty on the Transfer of Sentenced Persons.³⁷ In November, Japan and Viet Nam signed a Treaty on Mutual Legal Assistance in Criminal Matters.

• 35 A legal framework that allows for efficient and prompt cooperation with legal authorities of other countries in investigations, prosecution, and other criminal 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 sentenced persons by giving them the opportunity to serve their sentences in their own countries.