Statement by Mr. MIKANAGI Tomohiro, Legal Advisor, Director General, International Legal Affairs Bureau, Ministry of Foreign Affairs, at the seventy-eighth session of the United Nations General Assembly, 20th plenary meeting on the Report of the International Court of Justice (Agenda Item 73)

Mr. President,
President of the International Court of Justice,
Distinguished Delegates,
 
I would first like to extend my sincere appreciation to President Donoghue for her dedicated leadership and informative report on the Court’s activities over the past year. Japan commends the Members of the Court and the Registry for their contributions to the effective and efficient functioning of the Court.
 
Mr. President,
 
In January this year, as President of the Security Council, Japan convened an open debate on the theme of “The rule of law among nations”. President Donoghue and Professor Akande of the University of Oxford, ILC Member, both kindly provided very insightful briefings relating to the role of the International Court of Justice (ICJ) in promotion of the rule of law among nations.
 
In her briefing in January, President Donoghue mentioned the 1970 Friendly Relations Declaration. This declaration was adopted by the General Assembly after long and difficult discussions among Member States in the 1960s. This was a time when many newly independent States joined the United Nations and the power balance in the Assembly changed dramatically. As President Donoghue pointed out in her briefing in January, a central objective for the Assembly in adopting this declaration was to “promot[e] the rule of law among nations and particularly the universal application of the principles embodied in the Charter.” The declaration also said: “the faithful observance of the principles of international law concerning friendly relations and co-operation among States and the fulfillment in good faith of the obligations assumed by States, in accordance with the Charter, is of the greatest importance for the maintenance of international peace and security”.
 
As the principal judicial organ of the United Nations, the ICJ can play a significant role in interpreting and applying the basic principles of the UN Charter which are essential for the maintenance of international peace and security. Such principles naturally include the prohibition of use of force under Article 2(4) of the Charter.
 
In the Wall Advisory Opinion, the ICJ found that the illegality of the acquisition of territory by force is a corollary of the prohibition of use of force incorporated in the UN Charter and it reflects customary international law. In view of recent developments in international relations, the ICJ’s role in the maintenance of international peace and security is particularly important in interpreting and applying rules relating to the acquisition of territory by force. As we all remember, before World War II, powerful States competed to acquire territory by force. Therefore, the prohibition of acquisition of territory by force provides an important safeguard against a return to rule by force.
 
Mr. President,
 
President Donoghue pointed out in her briefing in January that, at the international level, the concept of the rule of law is in a constant battle with competing tendencies, but she also rightly argued that “it is not a time for the rule of law to wave the white flag of surrender”. If we are not waving the white flag of surrender for the rule of law, we should discuss the ICJ’s role in interpreting and applying the basic principles of the UN Charter.
 
In considering the ICJ’s role for the maintenance of international peace and security, another important General Assembly resolution should be recalled. The “Manila Declaration on the Peaceful Settlement of International Disputes” was adopted in 1982. In adopting this declaration, the Assembly reaffirmed “the need to exert utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means and to avoid any military action and hostilities, which can only make more difficult the solution of those conflicts and disputes.” This declaration drew States’ attention to the role of the ICJ in the settlement of legal disputes.
 
Mr. President,
 
In his briefing in January, Professor Akande pointed out that only 73 out of 193 States had made declarations recognizing the compulsory jurisdiction of the ICJ and said that increased acceptance of the jurisdiction of the ICJ and other tribunals would mark an important advance in the rule of law and contribute to the maintenance of peace. In 2019, the Japanese Government cooperated with Oxford scholars in their study on States’ acceptance of ICJ jurisdiction. If you look at the list of cases brought before the ICJ, many rely on several rather familiar conventions. While these are all important cases, increased acceptance of the ICJ’s jurisdiction would strengthen its role and mark an important advance in the rule of law.
 
Japan also understands that this is easier said than done, as adverse judicial decisions often create heavy pressure at home. However, when international peace and security is seriously at stake, States should pause and give thought to the potential role of the ICJ. Japan sincerely hopes that Member States that have not made a declaration under Article 36, paragraph 2 of the ICJ Statute will consider doing so for the settlement of disputes not covered by other relevant dispute settlement mechanisms, in particular, in relation to issues that are likely to affect international peace and security.
 
A State accepting ICJ jurisdiction over relevant legal issues is unlikely to resort to forcible measures which are difficult to justify under international law in advancing its interests. Therefore, the acceptance of this legally binding dispute settlement mechanism works as a deterrent against unlawful forcible measures and contributes to the maintenance of international peace and security. On the other hand, if a State resorts to forcible measures difficult to justify under international law and rejects a legally binding dispute settlement, that State cannot claim to be a faithful observer of international law.
 
Even in the absence of existing ICJ jurisdiction based on the declaration under the ICJ Statute or treaties providing for the ICJ’s jurisdiction, the Security Council may recommend appropriate procedures or methods of adjustment, including the utilization of the ICJ, in accordance with Article 36 of the UN Charter. It should be remembered that this provision was used 76 years ago. In 1947, the Security Council made a recommendation to refer to the ICJ under Article 36 of the Charter in dealing with the Corfu Channel Case.

Mr. President,
 
In conclusion, I reiterate Japan’s steadfast support for the role of the Court in maintaining and strengthening the rule of law as the principal judicial organ of the United Nations. Japan is determined to continue its efforts to promote the rule of law among nations for the maintenance of international peace and security.
 
I thank you, Mr. President.