International law as 'soft power': an interview with former ICJ President Hisashi Owada

April 14, 2013


Q: Would it be realistic to say that power trumps the rule of law in the international community?

A: Obviously, some countries say that they protect their interests by their own power. To a certain degree, this issue runs through the debate over the importance of "soft power" in the world today. It is the notion that countries can make their presence felt not through brute force as symbolized by military power, but through its culture and its strengths as a whole. With this in mind, a value system that respects the rule of law has taken on greater significance.

In Japan's case, soft power is particularly important. In the world today, Japan's national interests cannot be protected by armed force alone. I believe that rather than taking a diplomatic stance that is reliant on military might, it is of more benefit to Japan's national interests to emphasize its willingness to adhere rigorously to international law. This way of thinking is gradually gaining ground within the international community.

Q: Did your own way of thinking change in any way upon becoming an ICJ judge after serving as a vice minister of foreign affairs tasked with protecting Japan's national interests?

A: My fundamental views did not change. Of course, diplomacy is about protecting national interests. That said, what exactly is the "nation" that we refer to when talking about "national interests"? Ordinarily, it is not the government but the country itself which has developed as a "nation state," a unified body comprised of each person who lives there.

Furthermore, the "interests" referred to in the term "national interests" include complicated matters. Do we choose the avoidance of losses in the immediate future, or the potential of greater gains 10 years down the road? There is no definitive answer. It could be said that nations must not focus solely only on short-term benefits, but incorporate a long-term view as well. When we make such decisions, it is important to have unchanging (or unchangeable) values, such as universality and principles.

Q: Is that an order based on international law?

A: International law is social order founded on agreements between the countries of the world. The idea that international law is for the benefit of powerless nations undeniably played a role in its emergence. However, in today's world, it is increasingly the case that powerful nations can no longer ignore the strictures of international law.

Recognition of the ICJ's fairness grew because issues are debated and investigated from various angles together by 15 judges who represent the world's major civilizations and legal systems. With that in mind, its judgements can be described as condensations of international public opinion. Therefore, countries have accepted even those that are unfavorable to them.

The ICJ has come to be tasked with not only classic political disputes between nations such as territorial issues, but also problems involving human rights and the environment. We now live in an era when human rights issues that were previously left to be dealt with by domestic legal controls are now matters of concern for the global community, subjected to the judgment of an international court as violations of international law and treaties pertaining to human rights protections.

Environmental issues such as Minamata disease and Yokkaichi asthma in Japan's past have been principally addressed as problems for domestic law. However, the situation today increasingly requires us to regard them as matters that also affect neighboring countries.

In recent years, environmental disputes between Uruguay and Argentina, and Ecuador and Columbia, have been brought to the ICJ.

In times when national sovereignty was absolute, domestic problems were entirely the dominion of sovereign states under the principle of nonintervention in a country's internal affairs, and international law was regarded as a legal structure for regulating relations between sovereign states.

If anything, in our present era we must consider universal standards that are common throughout the international community as a global society. The structures of international and domestic law, which were once two different things, are becoming unified as a global social order that is gradually being established.

Q: On the other hand, it is said that the number of people in Japan studying international law is dropping.

A: Perhaps that's because international law is not a central focus of law education in Japan. However, as the environment surrounding Japan becomes so globalized, it is actually getting to the point where judges and scholars cannot do their jobs without a knowledge of international law. I'd like Japanese legal specialists to address this present situation more seriously.

In September this year, the general assembly of the Institute of International Law, made up of the world's foremost authorities on international law, will be held in Japan. I hope it will provide an opportunity for the people of Japan to gain an understanding of how international law is closely connected to their daily lives. (Interviewer: Norito Kunisue)

* * *

Hisashi Owada

Born in 1932 in Niigata Prefecture. Joined the Ministry of Foreign Affairs and served in positions including director general of the Treaties Bureau, vice minister for foreign affairs, and Ambassador and Permanent Representative to the United Nations. Concurrently taught at Tokyo, Waseda, Harvard, and Toronto universities over a 30-year period. Elected as an ICJ judge in 2003 and re-elected in 2012 for another term of 9 years, served as ICJ president from 2009 to 2012. President of the Institute of International Law (l'Institut de Droit International).


My first time at the ICJ was in 1968, before I became a judge, when I was part of the defense counsel for West Germany in the North Sea Continental Shelf cases. It was extremely rare for a university professor from an Asian country to be asked to become involved in a dispute between European nations, and still is today. This occurred because I was known internationally as an expert in the law of the sea.

I was still in my 40s when I was asked to put my name forward to become a judge at the suggestion of Britain and the United States. The average age for judges was close to 70, so I never even dreamed of receiving such an opportunity so soon. Ultimately, I ran in the judges election in 1975, and was voted in. I was 51.

In my time as a judge, I spent every day reading through the vast volume of litigation documents submitted by countries bringing their cases to the court. At the time there were no assistants or research staff made available to judges, so I had to do everything myself. This is how each of the 15 judges created their own proposed judgements. Adding all of them together resulted in a formidable amount of documentation. This was passed around, and then a conference began once all of the judges had finished reading all of the opinions of their colleagues. English and French simultaneous interpreters were provided and we critiqued the opinions of other judges, or made counterarguments.

However, I wasn't so confident that I had the English ability to gain the full understanding of my colleagues for my assertions. I couldn't function on the same level as the Britons, Americans, or French, who were able to express themselves in their native tongues. Language ability was a considerable source of hardship for me. I served as vice president from 1991, and was subsequently asked to run for president, but it's difficult to preside over a court in a foreign language. I asked to be spared, and declined.

As a general rule, all 15 judges are present in the courtroom, but there have also been deliberations with a petty bench of five judges according to an agreement between the countries in dispute. I was named as a judge on a petty bench on two occasions. One was a case between the United States and Italy, and the other was a border dispute between Central American nations. It was demanding as I was required to work while other judges were on break, but I was there in accordance with the wishes of the countries in question, which was a great honor.

I participated in an on-site investigation only once. It was for a case in 1997 between Hungary and Slovakia regarding the construction of a dam on the Danube river. In order to give both countries equal treatment, I stayed for two nights in each, receiving explanations and making inspections. In both cases, I had dinner on one night with the prime minister, and attended the opera on the other; Tchaikovsky in Slovakia, and Wagner in Hungary. All judges were accompanied by their wives, and it was an enjoyable trip that felt like a work outing.

* * *

Shigeru Oda

Born in 1924 in Hokkaido. Worked as a professor at Tohoku University before being elected as an ICJ judge in 1976, and until 2003 was the longest serving at three terms, 27 years. He served as vice-president of the ICJ in 1991-1994. Known for writing many dissenting opinions. Recipient of the Order of Culture in 2012.

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Former ICJ President Hisashi Owada (Photo: Norito Kunisue)

Former ICJ President Hisashi Owada (Photo: Norito Kunisue)

  • Former ICJ President Hisashi Owada (Photo: Norito Kunisue)
  • Former judge Shigeru Oda (Photo: Naoatsu Aoyama)

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