After sixteen years of service as a judge (from 2003 to 2018) and a three-year term as president (2009 to 2012) of the International Court of Justice (icj) in The Hague, Judge Owada returned to Tokyo in 2018. His early resignation (by two years) from the icj was due to the fact that his daughter Masako would be enthroned as the Empress of the Emperor Maruhito, who ascended to the Chrysanthemum Throne on 1st May 2019. In 2021, a Festschrift entitled International Relations and Rule of Law in commemoration of his retirement from the International Court of Justice was published in Japanese by Judge Owada’s Japanese friends from both academic and diplomatic circles. The fifty-seven essays make up a big volume of 1446 pages. However, most foreign intellectuals are unable to read these creative essays in Japanese. As soon as I received a copy of the book from Judge Owada, my intuition came up with the thought of editing an English-language Festschrift for him, exhibiting his outstanding contributions to the development of international law for English-speaking intelligentsia.
Another reason I was inspired to edit the Festschrift is that we share the common ideals of promoting international law in Asia and transforming ‘Europeanized international law’ into a new and balanced multi-cultural law of nations. Judge Owada first mentioned to me about his plan to establish an Asian Society of International Law in 2004 in the Hague after I told him that Judge Shi Jiuyong, then President of the icj and myself initiated the idea of creating an Asian Academy of International Law as the counterpart of The Hague Academy of International Law in Asia located in the city of Xiamen, China. The Asian Xiamen Academy was formally established after the first meeting of the Curatorium held in the icj meeting room of the Peace Palace on 12 July 2005, in The Hague; Judge Shi was elected as the President of the Curatorium and I was nominated as Secretary-General of the Curatorium. Judge Owada was invited as a founding member thereof. Afterwards, Judge Owada and Prof. Yasuaki Onuma created the Asian Society of International Law in Singapore in 2007. He was invited to serve as the founding President of that Society.
Ordinarily, editing a Festschrift in honor of an eminent scholar of international law is rather a work that is simple and straightforward because we have so many colleagues specializing in international law and we know each other’s specialization pretty well. It is easy to designate the title and the themes of chapters of a Festschrift and also easy to invite friendly supporters to contribute their essays thereto. Nevertheless, editing the Festschrift for Judge Owada demanded hard work, tenacity and patience because his life-long
At this moment of time, international law and relations are diametrically opposed in terms of numerous principles of the international legal order between Western and socialist countries, between geopolitical groups, and between developed and developing countries. It is not the same as the ideological conflicts of the “Cold War” before 1991. At present, it is ‘a transitional period’ moving towards a “New International Legal Order” which is to emerge with new normative values of international law within the framework of the world’s multi-polarity. International law no longer regulates international peace and security, but it is called upon by the third world to transform itself into the wider range of new Jus Gentium of international peace and human security. Humanism has become the basis of the new international legal order, characterized, for example, by a restrictive interpretation of ‘self defense’ in light of the Israel-Hamas conflict, and with the urgent request to solve the triple planetary crisis (climate change, pollution, and sustainable development goals) which is threatening human existence. However, international law is not ready to fill the vacuum of such threats and it needs urgently and thoroughly to reform the existing order and to re-formulate new rules of international law to comply with humanism. Equally important is the duty of individual States to comply with international humanitarian law as obligations erga omnes. This is the reason why we have designated the title of the Festschrift as New Trends in International Law. Under this title, the book is divided into five chapters to analyze such trends.
So far as the invitation of contributors is concerned, my first priority was to invite a few old colleagues of Judge Owada from the icj to contribute their essays. In this regard, once again, I have to express my deep gratitude to Judge and President Joe Donoghue (U.S.A.), who agreed to write the Foreword to the book, representing all of the judges of the icj. Gratitude also goes to Judge and President Rosalyn Higgins (U.K.), Judge and President Ronny Abraham (France), Judge and President Peter Tomka (Slovakia), Judge and President Abdulqawi Ahmed Yusuf (Somalia), Judge Georgios Caja (Italy) and Judge Sir Ken Keith (New Zealand) for their contributions to the Festschrift, despite the fact that they were fully engaged in their deliberations of several Court cases and that the retired judges were also fully occupied with their important academic teaching and research. For instance, Judge Higgins had already
The next priority was to invite Judge Owada’s friends and our common friends from the academic world who were willing to contribute essays within the scope of the themes designated in the five parts of the Festschrift and within half a year’s time to submit those essays to the publisher. Judge Owada and myself did not intend to compile the Festschrift solely for honorary purposes. Rather we sought to bring together a range of new ideas from various realms of international law. With the contributors’ understanding and collaboration, that purpose has been achieved. This Festschrift is a superbly authoritative reference work.
Lastly, I had to take into consideration the geographical distribution of the invited contributors. Because of their wide-ranging political, social and cultural backgrounds, they were capable of representing different views on how to solve new problems and re-formulate new rules of international law. I decided that we should invite at least one representative scholar from Western, Central and Eastern Europe, North America, South, East and Southeast Asia, Africa, and Australasia. We would have had a judge and a scholar from Latin America. If Professor António Augusto Cançado Trindade from Brazil, Judge of the icj, had not passed away untimely in 2022, he would have been one of our outstanding contributors. In our last meeting in the Hague in February 2020, he pointed out to me that international law should be regarded as the law of humanism. Besides, the former Judge and President of the icj, Shi Jiuyong, had he not been laid to rest in Beijing in 2022, would also have been one of our contributors. President Shi was the first Chinese president of the icj, serving from 2003 to 2005, and he was also a great humanist possessed of the Chinese traditional virtues of peace and ren (benevolence). President Shi and Judge Cançado Trindade were both old friends of Judge Owada. Even though they were ad absentia from this Festschrift, remembrance of them lives on.
This Festschrift is divided into five parts according to the themes of the contributions. Part One deals with a new conceptualization of the rules of general international law, new developments of international humanitarian law, how to create new laws to solve issues of the planetary environment’s future, new obligations of ergas omnes, and a possible new legal regime on artificial intelligence. International law has to come to terms with these dramatic challenges of our time, particularly those of human security and the triple planetary crisis.
Part Three addresses the contributions of political organs and specialized agencies within the UN system to the development of international law. In the past scholars tended to overlook their legal functions in the formulation of international law. For example, the legislative and quasi-legislative resolutions adopted by the General Assembly and the Security Council on multilateral treaties, the codification of the International Law Commission and the Committee of the Peaceful Use of Outer Space have laid down the foundation of international law and various new branches of international law, such as international human rights law, international space law and international development law.
Part Four is concerned with the latest developments of international economic law. Since international relations have tended to be geopolitically-oriented and multi-polarized, the global economic order has thus been led towards unilateralism with the international economic order being manipulated by the geopolitical competition of the hegemonic powers. The wto was hit hard by the U.S. The politicization of world trade has completely reduced the significance of the global trade in piecemeal fashion, with potentially disastrous consequences. How to stop the abuse of ‘national security’ and ‘extraterritorial jurisdiction’ in international trade is a matter of the economic obligations of erga omnes. Contributors touched upon some aspects of the problems. Brewster concluded that international economic law in a multi-polar world is deprived of the constitutional constraints of the UN and the wto.
Another current major controversial issue is intellectual property protection. Four systems of protection have already been established, i.e., the Paris System, the Bern system, the Sui Generis system and the wto system. However, since the declaration of the nieo, developing countries have repeatedly sought to establish the balance of protection principle, particularly in the field of public health. Abbott provided a precise analysis of the patent extracts problem of public health, such as the hiv-aids epidemic, tobacco control and the covid-19 pandemic.
Part Five deals with the major problem of whether the subject matter of a given dispute is within the jurisdiction of international courts and tribunals. The icj has taken a restrictive interpretation, while the itlos and other
In addition, Damrosch raises the question of the dispute settlement and reservations to treaties protecting the rights of individuals. This is another problem which is concerned with the subject matter of a dispute.
Owada’s contribution to the development of international law can be reflected from his speeches to the political organs of the United Nations. In Appendix A, all of Owada’s important speeches delivered before the UN General Assembly, the Security Council, the Sixth Legal Committee and the conferences for legal advisors of the member States of the UN, are listed. These documents present Owada’s scholastic analysis of certain aspects of judgments relevant and innovative approach to international law.
In Appendix B, we have collected all Judge Owada’s legal opinions appended to all icj judgments and advisory opinions covering the period of his tenure in the icj from 2003 until his resignation on June 7, 2018. The judgments and advisory opinions are the collective work of judges, always comprising, however, individual declarations, joint declarations, dissenting opinions, joint dissenting opinions, separate opinions and joint separate opinions, which are more valuable than the judgments and advisory opinions themselves. From the point of view of comparative law, a coin always has two sides of truth. These independent opinions stem from a distinctive view of law and have remarkable reference value in cases of international law.
During the period of Owada’s diplomatic service and the sixteen years he served in the Peace Palace, he continually engaged in research on international law and published his academic papers in various organs. In Appendix C, we collected most of Owada’s publications on international law and international relations in English and French, but this is not an exhaustive list. Regrettably, we were unable to append a list of all his valuable books and articles relating to international law and international relations published in Japanese.
At the end of my preface, I express once again my deepest gratitude to Ms. Ingeborg van der Laan, publisher of Brill/Nijhoff, a cherished friend for more than twenty years, for her strong support of the publication of the Festschrift, which, otherwise, would not have been published in such a timely manner.
Chia-Jui Cheng