In September 2001, I was asked by the Waseda University Graduate School of Law to give a lecture to graduate students as a part-time lecturer. As the Director of the Legal Affairs Division of the Ministry of Foreign Affairs, I was working on everyday diplomatic issues from the perspective of international law, so giving a weekly lecture to graduate students of the leading private university in Japan was an extremely challenging invitation. At that time, I was in charge of “connecting the Ministry of Foreign Affairs and the International Law Society”, so there were many opportunities to exchange opinions with professors, like chairing the International Law Study Group at the Ministry of Foreign Affairs four times a year, and monthly international law study sessions with a limited number of professors. There were many heated arguments about diplomatic issues at such meetings. Still, those were discussions of international law practitioners facing daily diplomatic issues and differed from the scholar’s point of view conducting the theory and judicial precedent studies.

From the fall of that year to the next spring, and from the fall of the following year to the spring of 2003, I visited Waseda University every Saturday and organized a seminar with more than a dozen graduate students. At the seminar, I assigned each student a diplomatic issue that Japan was facing and asked them to present the case, the government’s judgment, its background, and their evaluation under international law while I was giving comments on the presentation. However, those discussions with graduate students turned out to be unexpectedly shocking to me. There is no problem if the evaluation of cases under international law and the student’s arguments are different from those of the government. Because that is the discussion that should be held in a free academic institution, and it is the only way to enhance each other. However, as a problem before such arguments, the students had no understanding at all of how the government perceived the issues under international law and what kind of logic it had created to handle the case.

Naturally, my initial reaction was, “Don’t young people these days study anything?” However, as the discussions continued, I was struck by the question of how graduate students could get to know the government’s thinking.

Introduction

On August 9, 2003, a commemorative reception was held at the Great Hall of the People to celebrate the 25th anniversary of the conclusion of the Japan-China Peace and Friendship Treaty in Beijing, China. Chief Cabinet Secretary Yasuo Fukuda visited China from Japan to attend the reception with the Chairman of the Standing Committee of the National People’s Congress Wu Bangguo. On the same day, Chief Cabinet Secretary Fukuda met with President Hu Jintao and Chairman Wu Bangguo, and on the following day, he met with Prime Minister Wen Jiabao. At this meeting, Prime Minister Wen called for the Japanese side to take appropriate measures in the case where more than 30 people were injured by the abandoned chemical weapons of the former Japanese army in Qiqihar City, Heilongjiang Province, China. In response to this statement, Chief Cabinet Secretary Fukuda replied that Japanese experts were currently investigating the incident and if the facts became clear, the Japanese Government would take appropriate measures.

On October 20, the Japan-China summit meeting was held in Bangkok, Thailand. In this meeting, about two months after the meeting in Beijing, President Hu Jintao told Prime Minister Junichiro Koizumi that the response to this incident was agreed between the office levels of both countries.

In this paper, I would like to clarify how the parties concerned in both countries acted in response to an unprecedented incident for both Japan and China, namely the occurrence of large-scale damage caused by the abandoned chemical weapons of the former Japanese Army, and what kind of understanding had brought the two sides to the final solution on this matter. The author was involved in the response to the accident and the discussions with the Chinese side as the director of the China Division, Asian and Oceanian Affairs Bureau of the Ministry of Foreign Affairs of Japan at the time of the accident. However, the views expressed in this paper do not represent the views of the government or the Ministry of Foreign Affairs, except for direct citations such as parliamentary responses and external announcements.

First appearance of the paper: “Poisonous gas accident in Qiqihar City, Heilongjiang Province”, Yushindo-kobunsha “Agenda for International Law in the 21st Century: Professor Ando Nisuke Jubilee Publishing”, July 2006.

Introduction

The terrorist attacks in the United States on September 11, 2001 clearly showed the existence of a “new threat” to the entire world and that the traditional idea of “deterrence” did not apply. The fact that a private group of terrorists managed to attack the political, economic, and defense centers of the United States at about the same time using multiple hijacked commercial airliners gave an opportunity to completely change the post-Cold War US strategy.

Approximately three hours after the incident, US President George W. Bush said at Barksdale Air Force Base in Louisiana that “the United States will hunt down and punish those responsible for these cowardly acts,” and announced the United States’ intention to take decisive action against the responsible terrorists. Eight hours after President Bush’s remarks, the Government of Japan held a Cabinet Security Council on September 12, at 9:30 a.m. Japan time. After that meeting, Prime Minister Koizumi held a press conference in the prime minister’s office and said, “We, Japan, strongly support the United States and are determined to spare no effort in the necessary assistance and cooperation.”

How did Japan understand the US intention in light of international law? That understanding has led to the decision of strongly supporting the United States at the initial stage, and later became the basis of the Act on Special Measures against Terrorism. In this paper, I would like to try to verify how the Japanese government tackled the proposition of exercising the right of self-defense against large-scale terrorist acts by non-state actors and how we organized the issues under international law.

As the director of the Legal Affairs Division of the Treaty Bureau at the Ministry of Foreign Affairs of Japan at the time of the 9/11 terrorist attacks, the author was directly involved in the evaluation of this situation under international law and the drafting of the bill for special measures against terrorism. However, the views expressed in this paper do not represent the views of the Government of Japan, except for the direct citations such as the official announcements or answers to the written questions at the Diet.

First appearance of the paper: “8 hours on September 11” in Law that transcends melting boundaries (2). Security and international crime, University of Tokyo Press, September 2005.

Introduction

On the afternoon of December 16, 1989, a hijacking incident occurred. A CAAC (Civil Aviation Administration of China) jumbo jet from Beijing was hijacked on the way to Shanghai and made an emergency landing at Fukuoka Airport. The injured criminal, Zhang Zhenhai, stated that he had participated in a demonstration in the Tiananmen Square Incident in June of the same year and he had decided to escape from the country after being arrested, claiming that it was a hijacking for political purposes. How should the Japanese government deal with the unprecedented situation of a hijacked foreign aircraft flying into Japan? What were the norms set by international law regarding the terrorist act of hijacking? How should we understand the relationship with domestic law that sets out the principle of non-extradition of political prisoners? As the case posed numerous challenges to the government, the people involved started to put all their efforts into reaching the best resolution. Mr. KOMATSU Ichiro, the director of the Legal Affairs Division of the Treaty Bureau of the Ministry of Foreign Affairs at that time, played a central role in the legal handling of the case.

First appearance of the paper: “Hijacking Incident of a Civil Aviation Administration of China Flight”, in: Shunji Yanai, Shinya Murase (eds), Putting International Law into Practice: In Memory of Ambassador Ichiro Komatsu, Shinzansha, June 2015.

• 1. Occurrence of an incident

• The second Tiananmen Square Incident that occurred in 1989 is still a mystery. Following the sudden death of the former General Secretary Hu Yaobang (April 15, 1989), who lost his position in 1987, a large number of young people, mainly students, held a memorial rally and gathered at Tiananmen Square. On the night of April 21, more than 100,000 students and citizens demonstrated at Tiananmen Square for democratization. The occupation of Tiananmen Square by students and citizens did not end even after the arrival of Gorbachev, General Secretary of the Communist Party of the Soviet Union in Beijing (May 15), who visited China to announce the end of the China-Russia conflict. The welcome ceremony at Tiananmen Square was canceled and several events were forced to change venues.

Introduction

“China detains North Koreans in Japanese Consulate-General?”, “Japanese side protests … requests hand over”, “China argues it complied with the convention”: headlines of articles that appeared in the newspapers dated May 9, 2002. The outbreak of the Shenyang Consulate- General incident was reported on TV with lively footage, and shocking photographs adorned newspapers and magazines. The government of Japan strongly protested the Chinese government over the application of international law (Vienna Convention on Consular Relations), and the diplomatic authorities of both countries were in sharp conflict. Nevertheless, the Ministry of Foreign Affairs and the Consulate-General received unforgiving criticism from within Japan, and the government’s response was taken up severely every day in the Diet.2 Eight years after this incident, in January 2010, the two foreign ministers exchanged instruments of ratification for the Japan-China Agreement on Consular Relations in Tokyo, which meant the first bilateral consular agreement for Japan in 43 years. In this paper, I will look back on the trajectory of the eight years since the occurrence of the Shenyang Consulate-General Incident, discuss the issues that the Japanese government had to tackle, and clarify what kind of conclusions the bilateral agreement had reached on the issues of international law.

The author was directly involved in the handling of the case, the launch of negotiations on international agreement, and the actual negotiations as the director of the Chinese Division of the Foreign Ministry of Japan at the time of the Shenyang incident and then as the minister of the Japanese embassy in Beijing. However, the views expressed in this paper do not represent the views of the government or the Ministry of Foreign Affairs, except for direct citations such as parliamentary statements and external announcements.

First appearance of the paper: “Japan-China Consular Agreement: Trajectory from the Shenyang Consulate-General Incident”, Yuuhikaku, Jurist, No. 1402, June, 2015.

Shenyang Consulate-General Incident and remaining issues

• 1 The Case

• Around 3:00 p.m. on May 8, 2002, armed police officers of China chased North Korean defectors (a total of five men and women, including infants) who tried to enter the Consulate-General of Japan in Shenyang, the capital of Liaoning Province, China. The incident occurred when the police officers entered the premises without obtaining the consent of the Consulate-General and took the North Koreans away.

It is a great honour to write the foreword to Ambassador Horinouchi’s book, which makes important contributions to international law.

I have known Ambassador Horinouchi for more than twenty years. When we first met, he was the Director of International Agreements in the Treaties Bureau of the Japanese Ministry of Foreign Affairs, and I was a professor of international law at the University of Tokyo. He took the excellent initiative to organise a group of Japanese scholars to study WTO cases, and I agreed to be its chair. The group had several successful meetings discussing and analysing international legal issues raised in WTO cases.

Ambassador Horinouchi graduated from the Faculty of Law of the University of Tokyo and entered the Ministry of Foreign Affairs in 1980. In the Ministry, he has held a number of key posts dealing with international legal affairs, including the Director of International Agreements, the Director of International Legal Affairs, and the Deputy Legal Advisor. He is thus a well-known specialist in international law in the Japanese Ministry of Foreign Affairs. In addition to the posts indicated above, he has served, among others, as the Minister Extraordinary and Plenipotentiary to China, the Consul General in Los Angeles, the Ambassador Extraordinary and Plenipotentiary to Cambodia, and the Ambassador Extraordinary and Plenipotentiary to the Netherlands. He is fluent in English and Chinese. Besides his regular duties for the Ministry, he has been very active in teaching international law to young people. He has held teaching positions at Waseda University, among others.

As a specialist in international law in the Japanese Ministry of Foreign Affairs, Ambassador Horinouchi has dealt with a number of international legal issues concerning Japan. This book is a collection of articles on selected international legal issues. Written in his personal capacity, the book does not necessarily represent his government’s view. The book addresses various issues, including self-defence, post-war legal issues, chemical weapons, the law of the sea, consular immunities, and hijacking . Ambassador Horinouchi analyses these issues from a practical point of view. He is a prominent practitioner, as well as a scholar, of international law. As a coherent whole, this book ably represents “Japan’s Practice of International Law” and remarkably portrays international law in action from a Japanese practitioner’s perspective.

Introduction

Japan announced its acceptance of the Potsdam Declaration on August 15, 1945, and signed “Instrument of Surrender by Japan” on September 2 aboard the United States Navy battleship USS Missouri. This instrument formally proclaimed Japan’s unconditional surrender and cease of hostilities; however, it took another 6 years for Japan to achieve peace with the Allied Powers. The “Treaty of Peace with Japan” was signed on September 8, 1951 in San Francisco and came into force on April 28, 1952.

The San Francisco Peace Treaty not only set the peace and the territory, it also included provisions on security, political and economic clauses, and, more than anything, claims and property. Article 14(a)2(I) of the Treaty gave the right to Allied Powers subject to jurisdiction to seize, retain and liquidate or otherwise dispose of all property, rights and interests of Japan and Japanese nationals. Article 16 further stated, “As an expression of its desire to indemnify those members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war of Japan, Japan will transfer its assets and those of its nationals in countries which were neutral during the war… to the International Committee of the Red Cross…” On the other hand, the Treaty provided for the waiver of all claims of the Allied Powers and their nationals. Article 14(b) wrote, “Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.”

However, from the late 1990s to the early 2000s, former US POWs and others filed a series of lawsuits in the United States against Japanese companies seeking monetary compensation for damages caused by Japanese acts during World War II. The reason for these series of litigations was a new California State Law. In July 1999, California enacted this new law, California Code, Code of Civil Procedure, Section 354.6.

Introduction

On March 6, 2002, at a press conference at the National People’s Congress in China, Foreign Minister Tang Jiaxuan raised his voice in response to a reporter’s question. “The Chinese side … expresses strong dissatisfaction with the Japanese side’s careless use of force in the exclusive economic zone of the Chinese side and the sinking of the vessel … We insist that Japan respects the rights and concerns of the Chinese side on this case, and will not take actions that may make the situation worse and more complicated”. This was the moment when it was revealed to the outside that China did not want “salvage”, which could lead to “a worse and more complicated situation”. However, in October of the same year, seven months after this statement, the “China Marine Bulletin” posted a commentary that highly evaluated the salvage. It reported that the salvage of the suspicious ship “had established an example for reasonably settling the dispute and dealing with a case that could occur in the exclusive economic zones”. During these seven months, the Japanese side, in order to elucidate the whole picture of the suspicious ship incident, conducted a manned diving survey from May 1 to 8 and carried out the hull’s salvage successfully from June 25 to September 14 with the cooperation of the Chinese side. Throughout 2002, this North Korean spy vessel incident was widely reported, with details on the large amount of weapons found, special hull structures, and various evidence including mobile phones. However, the successive talks be tween Japan and China, that had been held to gain the understanding and cooperation of the Chinese side regarding the salvage had not been widely reported. In this paper, I would like to look back on the handling of the suspicious ship incident, which was highly evaluated by the Chinese side, by giving an overview of the issues under international law discussed at the Japan-China talks.

The author was directly involved in the handling of the incident and the negotiations with China as the director of the Legal Affairs Division of the Treaty Bureau at the time of the suspicious ship incident, and as the director of the China Division, Asian and Oceanian Affairs Bureau of the Ministry of Foreign Affairs of Japan after April 2002.