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 an essential cornerstone of a fair and just society within a country. At the same time, it contributes to peace and stability in the international community and constitutes the basis of the international order that consists of friendly and equitable relations between states. In the international community, under the rule of law, we must not allow rule by force, all countries must observe international law in good faith, and there must be no unilateral attempts to change the status quo by force or coercion. Japan promotes strengthening the rule of law as one of the pillars of its foreign policy, and promotes rule-making in various fields as well as ensuring their proper implementation.

(1) Japan's Diplomacy to Strengthen the Rule of Law

Japan makes use of various opportunities, including international conferences, to affirm with each country the importance of a free and open international order based on the rule of law. In addition, it participates actively in rule-making in various sectors, contributing to the formation and development of a new international legal order. In order to promote the peaceful settlement of disputes and the maintenance of legal order, Japan also actively cooperates with judicial organizations to strengthen their functions via both human resource and financial resource contributions, and works proactively on international cooperation in relation to the rule of law, such as by supporting the improvement of legal systems and organizing events on international law.

With the very foundation of the international order being shaken as a result of Russia's aggression against Ukraine, it is becoming even more important to strengthen the rule of law. In his statement at the General Debate of the UN General Assembly held in September, Prime Minister Kishida emphasized the importance of the following three principles based on “The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States” (Friendly Relations Declaration) adopted at the UN General Assembly in 1970: (1) break away from “rule by force” and pursue “rule of law” through observing international law in good faith; (2) in this regard, do not allow any attempts to change the status quo of territories and areas by force or coercion; and, (3) cooperate with one another against serious violations of the principles of the UN Charter. He also expressed Japan's strong resolve toward realizing a UN that promotes the rule of law in the international community.

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 jurisdiction⁴⁷ of the International Court of Justice (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. For example, Japan is the largest financial contributor to the International Criminal Court (ICC) and the Permanent Court of Arbitration (PCA) (as of December 31, 2022 for the PCA). In terms of human resources, a number of Japanese judges serve on international judicial bodies as of 2022, including ICJ Judge IWASAWA Yuji (incumbent since 2018), Judge YANAI Shunji to the International Tribunal for the Law of the Sea (ITLOS) (incumbent since 2005), 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 (see the Column on page 253). With the aim of fostering people who can play an active role in international litigations in the future, Japan provides active support to Japanese nationals including those who intern at international judicial organizations through the Support Program for Internships at International Courts and other International Organizations.

At the same time, in order to further strengthen the capacity in dealing with international litigations, Japan is engaged in efforts to enhance expertise on international judicial proceedings, and to create a strong organization that can perform well in international trials by strengthening relationships with lawyers and law firms in and outside Japan, that are mainly active in the field of international justice. In the field of economy, the importance of dispute settlements based on World Trade Organization (WTO) agreements, Economic Partnership Agreements (EPA), and investment agreements has been growing in recent years. Against this backdrop, in the handling of dispute settlements under the WTO agreements and others, Japan engages in litigation work, such as preparation of written submissions, handling of evidence, and preparation and participation in oral proceedings, in close cooperation with the relevant ministries and agencies as well as academic experts and practitioners specializing in international economic law both in Japan and abroad. It also advances initiatives such as analyzing of case law and academic theories, and engages in dispute prevention. In these ways, Japan strives to strengthen the capacity for strategic and effective dispute settlement.

• 47 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 (as of February 28, 2023).

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, 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.” In this role, he has long been contributing to the development of international law by participating in deliberations in the ILC, including guiding draft guidelines of the said topic through to adoption. From 2023, ASADA Masahiko, Professor of Doshisha University and Professor Emeritus of Kyoto University, will serve as a member of the ILC (for the term from 2023 to 2027). Japan also sends Government representatives to various meetings of the HCCH, UNCITRAL and UNIDROIT, taking an active lead in the discussions. For example, 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 proposing and realizing the enlargement of the membership of UNCITRAL as well as projects in the field of dispute settlement.

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 23rd Asia Cup was held in 2022). Japan also participates in constructive discussions and engages 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. Therefore, Japan has consistently advocated for 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. For example, at the 16th East Asia Summit (EAS), held in October 2021, Prime Minister Kishida pointed out that it is in our common interest to make the Indo-Pacific a free and open sea.

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.

To achieve the objectives of UNCLOS, several international organizations have been established based on UNCLOS. The International Tribunal for the Law of the Sea (ITLOS) was established in 1996 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 (term ends at the end of September 2023)). The Commission on the Limits of the Continental Shelf (CLCS) plays an important role in the operation of the system for establishing the outer limits of the continental shelf. Since its establishment, 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 is Professor YAMAZAKI Toshitsugu from the University of Tokyo (term ends on June 15, 2028)). In the International Seabed Authority (ISA) established for the primary purpose of administering deep sea-bed mineral resources, during three parts of the Council's Session held in 2022, deliberations were held on regulations concerning the exploitation of deep sea-bed mineral resources, and work was also carried out to formulate the relevant standards and guidelines. Japan participates actively in negotiations to ensure that its position is reflected in the regulations. Since before, Japan has also supported developing countries in capacity building for deep sea-bed technologies, and takes the lead in the creation of rules governing the deep sea-bed. Since 2018, an intergovernmental conference (GC) has been convened to formulate a new international agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Japan has continued to participate actively in these discussions, including in the 5th conference held in August 2022.

The author

International relations regarding the seas and oceans are regulated by the United Nations Convention on the Law of the Sea (UNCLOS), which was adopted in 1982 and is also known as the “Constitution for the Oceans.” This convention has expanded the maritime areas of states, establishing the width of the territorial sea of a state up to a limit not exceeding 12 nautical miles while creating an exclusive economic zone (EEZ) of 200 nautical miles and granting wide continental shelves to coastal states. On the other hand, it stipulates the international management of the deep seabed that extends beyond the limits of national jurisdiction, and the mineral resources on such seabed, as the “common heritage of mankind.” As disputes over the delimitation of EEZ and continental shelves, as well as over marine resources and navigation, were expected to arise frequently under this convention, the International Tribunal for the Law of the Sea (ITLOS), which specializes in the law of the sea, was established in Hamburg (Germany) in addition to the existing International Court of Justice and arbitral procedures.

In 2005, I assumed office as a Judge of ITLOS and the second Japanese Judge in the Tribunal after the late Judge YAMAMOTO Soji. I have now served in the Tribunal for close to 18 years, including three years as its President. ITLOS has handled 31 cases of maritime disputes over the quarter century since its establishment, and it contributes not only to the peaceful settlement of international disputes and to the rule of law at sea, but also to the progressive development of the Law of the Sea through its jurisprudence. ITLOS has also provided advisory opinions to clarify the interpretations of provisions of UNCLOS in relation to the deep seabed and fishery. The dispute between Bangladesh and Myanmar over the delimitation of the maritime boundary is an example of an ITLOS judgement that was particularly welcomed by the parties of a dispute. More than 30 years of negotiations between the two countries had not led to a successful conclusion, but ITLOS settled the dispute in about two years and three months.

There are two matters that I feel strongly about in my experience as a Judge of ITLOS. The first is the sense of solidarity and common purpose among the 21 Judges. When hearing cases, various opinions are put forward in the beginning and the situation may appear to be out of control. However, as deliberations proceed, a majority view emerges. I believe this is because the Judges are in accord with one another on their desire to come up with the best solution for the dispute before them, even when there is a wide range of opinions.

Another matter is that we share a common logic and way of thinking about the law. The 21 Judges all come from different countries and have different backgrounds, including cultures, languages, and legal systems. In spite of such differences, as long as the legal opinion is logically clear, these differences do not hinder mutual communication at all.

I think that it is very important for the international community to make greater use of institutions such as ITLOS to settle disputes peacefully, and to establish the rule of law at sea.

Oral proceedings in ITLOS (the author is second from the top left)

(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 January, Japan signed the New Special Measures Agreement on HNS (“Host Nation Support”) with the U.S., and this Agreement entered into force in April with approval from the National Diet. In January, Japan also signed the Japan-Australia Reciprocal Access Agreement, which establishes procedures between Japan and Australia for the cooperative activities conducted by defence forces of one country while visiting the other country, and defines the status of the visiting force. In January 2023, Japan signed a Reciprocal Access Agreement with the UK. Japan advanced efforts to conclude Exchange of Notes and Agreements concerning the Transfer of Defence Equipment and Technology, which set out provisions on the handling of defense 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. With regard to the defense equipment and technologies to be transferred, Japan signed and exchanged notes with Ukraine on March 8 (entry into force on the same day) for the grant of equipment and goods of the Japan Self Defense Forces (JSDF) to Ukraine. It also signed an Agreement concerning the Transfer of Defense Equipment and Technology with Thailand on May 2 (entry into force on the same day). In the nuclear sector, in order to enable the reprocessing, in France, of spent fuel generated in research reactors owned by the Japan Atomic Energy Agency, Japan signed and exchanged notes with France on June 15 (entry into force on the same day) on the transportation and reprocessing of spent fuel and the return of radioactive waste.

(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 remain 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 2022 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.

With regard to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP), Japan, as the chair of the Accession Working Group, actively advanced negotiations toward the UK acceding to the CPTPP. As for the Japan-EU EPA (Economic Partnership Agreement), formal negotiations with the EU commenced in October to include provisions on the free flow of data into the EPA. The Protocol Amending the Trade Agreement between Japan and the United States of America was signed in June and entered into force in January 2023.

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, health, labor and postal affairs, 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 labor sector, Japan ratified the Convention Concerning the Abolition of Forced Labour (Convention 105) in July. In the postal field, Japan concluded in June 2022 related documents including Additional Protocols to the Constitution of the Universal Postal Union (UPU) drawn up by the Universal Postal Union in 2018 and 2021.

(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 15% of the entire assessed contributions to the Court as of 2022. Moreover, Japan has consistently produced judges since its accession to the ICC. As of 2022, 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, is serving as a judge. Japan also cooperates on the activities of the ICC in the aspect of human resources, with 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. In March, from the perspective of expressing clear support for the ICC investigation of the situation in Ukraine, Japan, as the only Asian country, referred the situation in Ukraine to the ICC (see the Special Feature Russia's Aggression Against Ukraine and Japan's Response on page 26). Furthermore, in the face of an increase of cross-border crimes in recent years, Japan is further working on ensuring judicial cooperation in the criminal sector, such as the mutual submission of necessary evidence 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),⁴⁸ the Treaty on Extradition,⁴⁹ and the Treaty on the Transfer of Sentenced Persons.⁵⁰ In May, Japan signed the Second Additional Protocol to the Convention on Cybercrime, which is a multilateral framework related to international cooperation, and in August, the Treaty between Japan and the Socialist Republic of Viet Nam on Mutual Legal Assistance in Criminal Matters entered into force.

• 48 A legal framework that allows for efficient and prompt cooperation with legal authorities of other countries in investigations, prosecution, and other criminal procedures.
• 49 A legal framework having comprehensive and detailed provisions regarding the extradition of criminals to enable more effective cooperation for repressing crime.
• 50 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.