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, and 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 of 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 other States the importance of a free and open international order based on the rule of law. In addition, Japan 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 contributions, and works proactively on international cooperation in relation to the rule of law 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 that the principles of the UN Charter, such as sovereign equality, respect for territorial integrity, and the prohibition of the use of force, are fundamental principles of international law and provide the basis of the rule of law. He also advocated that international law exists for the benefit of weaker states, and declared Japan's resolve to protect the right of vulnerable nations and peoples to live in peace under the rule of law.

In January 2024, Foreign Minister Kamikawa held meetings with Judge Joan E. Donoghue, President of the International Court of Justice (ICJ); Judge Piotr Hofmański, President of the International Criminal Court (ICC); and Mr. Karim A. A. Khan KC, Prosecutor of the ICC in The Hague (Netherlands). She also met with Judge Tomas Heidar, President of the International Tribunal for the Law of the Sea (ITLOS) in Hamburg (Germany). In addition to sharing a sense of crisis on the current situation in the international community with its deepening divisions and confrontations, Foreign Minister Kamikawa expressed Japan's unwavering support for the role that international courts play for the rule of law and human dignity, and stated that Japan will advance diplomacy comprehensively based on dialogues and cooperation, so as to strengthen the rule of law in the international community.

Foreign Minister Kamikawa meeting with President Donoghue of the ICJ (January 11, 2024, Hague, Netherlands)

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 jurisdiction⁴⁸ 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. For example, Japan is the largest financial contributor to the ICC and the Permanent Court of Arbitration (PCA). In terms of human resources, a number of Japanese judges serve on international judicial bodies as of 2023, including ICJ Judge IWASAWA Yuji (incumbent since 2018), Judge HORINOUCHI Hidehisa to the ITLOS (incumbent since 2023), and Judge AKANE Tomoko to the ICC (incumbent since 2018 and elected as the President of ICC in March 2024). Through these contributions, Japan strives to enhance the effectiveness and universality of international courts and tribunals. With the aim of fostering human resources capable of playing an active role in international litigations in the future, Japan provides active support to Japanese nationals interning at international judicial organizations and other related organizations through the Support Program for Internships at International Courts and other International Organizations.

At the same time, in order to further strengthen its 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 litigation by strengthening relationships with legal experts and law firms in and outside Japan, that are mainly active in proceedings at major international courts and tribunals. 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 case law and academic theories, and engages in dispute prevention. In these ways, Japan strives to strengthen its capacity for strategic and effective dispute settlement.

• 48 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 (as of February 28, 2024).

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, including the codification 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, ASADA Masahiko, Professor of Doshisha University and Professor Emeritus of Kyoto University, serves as a member (incumbent from 2023) and is contributing to the development of international law by participating in the debates on draft articles. Japan also sends government representatives to various meetings of the HCCH, UNCITRAL and UNIDROIT, taking an active lead in the discussions. In particular, Japan has been showing its presence as a member state of UNCITRAL since the founding of the commission, such as by acceding to the United Nations Convention on International Settlement Agreements Resulting from Mediation negotiated at UNCITRAL in 2023, and proposing and realizing the enlargement of the membership of UNCITRAL as well as projects in the field of dispute settlement to date. In UNIDROIT, Dr. KANDA Hideki, Professor of Gakushuin University as well as Professor Emeritus of the University of Tokyo serves as chair of the Digital Assets and Private Law working group (incumbent from 2014), and contributes to leading-edge discussions on digital finance.

C International Cooperation and Human Resource Development

Japan is also actively engaged in international cooperation on the rule of law, not only to promote the rule of law in the international community, but also to strengthen it within various countries. For example, to further develop the rule of law, Japan provides support for the development of legal systems, especially in Asian countries. It also participates constructively in the discussions and provides human and financial cooperation to the Asian-African Legal Consultative Organization (AALCO), the only inter-governmental organization in the Asia/Africa region on issues related to international law. In addition, Japan participates actively as an observer in the Committee of Legal Advisers on Public International Law (CAHDI), which examine questions related to public international law under the Council of Europe (CoE). In August, with the aim of fostering professionals in the field of international law, Japan organized the first Tokyo International Law Seminar, a practical training program in the field of international law for officials and legal experts from the Indo-Pacific region, as well as Japanese lawyers and international law scholars. As part of the Tokyo International Law Seminar, the 24th Asia Cup, an international law moot court competition for students in Asia including Japan, was also held, which aims to raise awareness of the importance of the peaceful settlement of disputes and to nurture future international lawyers and enhance exchanges among them (See the Special Feature on page 258).

In August, the Ministry of Foreign Affairs (MOFA) organized the first Tokyo International Law Seminar, an international law training program for officials and legal experts, at the United Nations University, Tokyo.

The Seminar aims to contribute to peace guided by the rule of law by expanding the common knowledge of international law and promoting exchanges among officials and legal experts from Asia and Africa, and also to foster international law capacity building in Japan by welcoming the participation of Japanese lawyers and young international law scholars.

The Seminar provided lectures on various areas of international law of particular practical importance, such as the use of force, the law of the sea, immunity, international humanitarian law, international criminal law, international economic law, and international environmental law, as well as on new areas such as cyber-related international law, and also offered practical lectures on dispute resolution practices in international justice and international arbitration. For the lecturers, MOFA invited internationally prominent world-leading international law experts from abroad, such as Dapo Akande, Professor of University of Oxford, Paul Reichler, international lawyer at 11 KBW, and Gary Born, partner at WilmerHale, and leading Japanese experts including IWASAWA Yuji, Judge of International Court of Justice (ICJ) also joined the Seminar as the lecturers.

In addition, “Asia Cup,” an international law moot court competition for students in Asia that has been held annually in Japan since 1999, was held as a part of the Tokyo International Law Seminar. Student teams from 14 countries that had been selected on the basis of the preliminary examination of written pleadings competed in the oral rounds held in Japan and deepened mutual exchanges.

Consequently, the first Tokyo International Law Seminar provided an invaluable opportunity for international law experts and practitioners, as well as future international lawyers from Japan and abroad, to gather in Japan to learn together about the important aspects of international law, and to foster friendship and build a network. This “Japan originated” initiative, which was achieved with the cooperation of various legal professionals in Japan, including the Japan Federation of Bar Associations, Japanese Society of International Law, and Japanese law firms, received a high reputation from many participants.

Amid the growing importance of maintaining and strengthening an international order based on the rule of law in recent years, in 2023, Japan put effort into leading international discussions on the pursuance of the rule of law through observing international law in good faith. These efforts include calling for unity under the rule of law at the UN Security Council and appealing to strengthen the free and open international order based on the rule of law as President of the G7. The Tokyo International Law Seminar is one of the initiatives under the new plan for a “Free and Open Indo-Pacific (FOIP)” announced by Prime Minister Kishida in March, and MOFA intends to further expand this Seminar in the future.

Professor Akande giving a lecture (August, Tokyo)

Commemorative photograph of the Seminar participants (August, 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. Therefore, Japan has consistently advocated for the “Three Principles of the Rule of Law at Sea” to be followed by every nation ((a) making and clarifying claims based on international law; (b) not using force or coercion in trying to drive their claims; and (c) seeking to settle disputes by peaceful means). Prime Minister Kishida reiterated these principles in his policy speech related to the New Plan for a “Free and Open Indo-Pacific (FOIP),” delivered in March.

The United Nations Convention on the Law of the Sea (UNCLOS) serves as a foundation for such rule of law at sea. The Convention has been ratified by 168 countries, including Japan (including some regions not officially recognized as nations by Japan; as of December 2023) 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 (EEZ) are widely accepted among the international community, and the recognition that activities conducted on the seas ought to be carried out according to the provisions of the Convention is widely shared. 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), established in 1996, fulfills an important role in 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 and the protection of the marine environment 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 Japanese judges to the Tribunal since its establishment. In the election of members of ITLOS held at the UN in June, Ambassador for UNCLOS HORINOUCHI Hidehisa was newly elected as a judge (nine-year term starting from October 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 mineral resources in the Area (international deep seabed zone), during three parts of the Council's Session held in 2023, deliberations were held on regulations concerning the exploitation of mineral resources in the Area. Japan participates actively in negotiations to ensure that its position is reflected in the regulations.

In response to growing interest from the international community on the conservation and sustainable use of marine biological diversity in the high seas and the Area, the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) whose discussions on this Agreement commenced in the UN in 2004 and whose articles have been under negotiations since 2018, was adopted at the UN Headquarters in New York on June 19. Japan participated actively in the negotiations for this Agreement from the position of emphasizing the balance between conservation and sustainable use (See the Special Feature on page 260).

The United Nations Convention on the Law of the Sea (UNCLOS), adopted by the UN in 1982 and also known as the “Constitution for the Oceans,” comprehensively stipulates rights and obligations related to maritime activities under international law. On the other hand, climate change and the advancement of technology have resulted in the diversification of challenges to the oceans that the international community has been confronted with in recent years. Among these are issues that had not been anticipated during the drafting of UNCLOS, and discussions are ongoing within the international community on how to address these new challenges under the UNCLOS framework. From the perspective of the marine environment, this Special Feature introduces “sea level rise” and “marine biological diversity of areas beyond national jurisdiction” as new issues in maritime law that the international community is working to address.

●Impact of rising sea levels on baselines

Climate change is attracting much attention as a pressing issue that the international community faces. When sea levels rise due to climate change, coastlines may regress, resulting in changes to the outer edges of territorial waters for countries that are surrounded by the ocean in particular. This has serious repercussions. For this reason, within the field of international law, discussions are taking place in fora including the United Nations International Law Commission (ILC) on whether countries are permitted to continue recognizing existing territorial baselines and maritime zones without changing them, while placing emphasis on legal stability.

The problem of sea-level rise is also of great importance to Japan as the maritime nation, and Japan is working to strengthen cooperation with other countries including the Pacific Island countries. In February, Foreign Minister Hayashi conveyed to the Delegation of the Pacific Islands Forum (PIF) that Japan has decided to take the position that it is permissible to preserve the existing baselines and maritime zones established in accordance with UNCLOS, notwithstanding the regression of coastlines due to climate-change-related sea-level rise. Furthermore, Prime Minister Kishida also expressed this position to the world in his address at the General Debate during the High-Level Week of the UN General Assembly in September, and took the lead in discussions within the international community.

●Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ)

Adoption of the BBNJ Agreement in the UN (June, U.S. Photo: UN Photo/Eskinder Debebe)

The international community also has strong interest in the conservation and sustainable use of marine biological diversity and is advancing initiatives in this area. With regard to the conservation of the biological diversity of maritime zones over which coastal states can exercise their jurisdiction (territorial sea, exclusive economic zone (EEZ), and continental shelf), there is the Convention on Biological Diversity which entered into force in 1993. However, in response to growing international recognition of the need for similar rules to other maritime zones (the high seas and the Area (international deep seabed zone)), the “Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement)” was adopted in June 2023. Discussions on this matter commenced at the UN in 2004, and Japan has been participating actively in negotiations to ensure that the resulting agreement strikes a balance between “conservation” and “sustainable use,” and is an effective and universal agreement that many countries will participate in. Discussions and negotiations spanning close to 20 years eventually came to fruition, and Japan welcomes the progress in rule-making for the conservation and sustainable use of marine biological diversity in the high seas and the Area.

While the international community is confronted by new challenges with the oceans, Japan has been leading discussions within the international community and striving to maintain and strengthen maritime order based on UNCLOS.

(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 field. For instance, Reciprocal Access Agreements (RAA) establish procedures for the cooperative activities conducted by the defense force of one country while visiting another country, and define a status of the visiting force. The RAA between Japan and Australia entered into force in August and that between Japan and the UK in October respectively. Japan also commenced negotiations on a RAA with the Philippines in November. On December 24, Japan and Djibouti signed an Exchange of Notes (entered into force on the same date) to apply, mutatis mutandis, the provisions of the Notes exchanged between the Government of Japan and the Government of the Republic of Djibouti in 2009, to the activities which are mutually determined by the two governments. This is aimed at securing the status of the Self-Defense Forces to undertake measures to protect and transport Japanese nationals overseas, etc. and to improve temporary preparedness in anticipation of that possibility. With regard to Agreements concerning Reciprocal Provision of Supplies and Services (“Acquisition and Cross-Servicing Agreement,” or ACSA), which establishes a framework such as the settlement procedures for the reciprocal provision of supplies and services between the Self-Defense Forces and the military forces of other countries, Japan commenced negotiations with Germany in September and signed an agreement in January 2024. In addition to these, Japan has also further advanced efforts to conclude Agreements concerning the Transfer of Defense Equipment and Technology, which set out provisions on the handling of defense equipment and technologies to be transferred, as well as Agreements on the Security of Information, which serve as the basis for sharing classified information on security with the relevant countries. With regard to Agreements concerning the Transfer of Defense Equipment and Technology, Japan signed an agreement with the United Arab Emirates in May (entered into force in January 2024), and with Singapore on June 3 (entered into force on the same date).

(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 2023 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), the signing of the Protocol on the Accession of the UK to the CPTPP took place in July, and the Diet of Japan granted approval for its conclusion in December. As for the Japan-EU EPA, Japan and the EU took the opportunity of the Japan-EU High-level Economic Dialogue held in October to announce that they had reached an agreement in principle on negotiations to include provisions on the free flow of data.

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, labor, the environment, health, fisheries, maritime affairs, aviation, space, 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 space sector, the Framework Agreement between Japan and the United States of America for Cooperation in the Exploration and Use of Outer Space was concluded in June, and in the aviation sector, the Japan-EU Agreement on Bilateral Agreements between Japan and the Member States of the EU for Air Services was concluded 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 15% of the entire assessed contributions to the Court as of 2023. Moreover, Japan has consistently produced judges since its accession to the ICC. 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 serves as a judge (elected as President of the ICC in March 2024). Japan also cooperates on the activities of the ICC in the aspect of human resources, with YAMADA Jun, Deputy Secretary-General of the Asian African Legal Consultative Organization (AALCO) newly elected as a member of 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.

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)⁴⁹, the Treaty on Extradition,⁵⁰ and the Treaty on the Transfer of Sentenced Persons.⁵¹ In August, Japan concluded the Second Additional Protocol to the Convention on Cybercrime, which is a multilateral framework related to international cooperation. In June, Japan and Brazil reached an agreement in principle on the Treaty on Mutual Legal Assistance in Criminal Matters, and signed it in January 2024.

• 49 A legal framework that allows for efficient and prompt cooperation with legal authorities of other countries in investigations, prosecution, and other criminal procedures.
• 50 A legal framework having comprehensive and detailed provisions regarding the extradition of criminals to enable more effective cooperation for repressing crime.
• 51 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.