Professor Shuichi Furuya, Faculty of Law (Waseda Law School)
Yota Negishi, third year doctoral student, Graduate School of Law (Course of Public Law), Japan Society for the Promotion of Science research fellow, recipient of 6th Ikushi Prize (2015)
Young scholar and Ikushi Prize winner speaks: “Harmony between state consent and public conscience”
Mr. Yota Negishi, a student of Professor Furuya’s seminar in international legal studies, won the 6th Ikushi Prize (2015) from the Japan Society for the Promotion of Science. To commemorate this accomplishment, we met with the young researcher and Professor Furuya to discuss what direction international law should take in the future.
International Law Moot Court
Furuya: Congratulations on winning the Ikushi Prize! It is wonderful that two students became the first from Waseda to win this award. Please share with us some details of your research. .
Negishi: I conducted analyses in order to resolve situations where human rights violations are systematically caused by domestic laws that do not meet the standards of international treaties (see Figure 1). I have analyzed the practices of human rights courts behaving as constitutional courts to ensure compliance of domestic law with treaty standards (constitutionalization of international adjudication) as well as the judicial review of legislation by domestic courts against the yardstick of both constitutional and treaty standards (internationalization of constitutional adjudication) (Figure 2). These practices are called “the conventionality control of domestic law.” This is a new concept that is underdeveloped in international legal studies and is comparable to the concept of “the control of constitutionality of legislation” that has already been elaborated in constitutional studies. For this reason, I believe my studies will have far-reaching effects.
Furuya: Why did you decide to specialize in international law?
Negishi: To be honest, there was no special reason. When I entered Waseda University, I was overwhelmed by the number of clubs. The Waseda International Law Commission (WILC) gave me a leaflet early on and I decided to join them. WILC is a club where students study hard in preparation for moot court competitions. It is such a large club that as many as about 100 first-year students join it. According to one teacher, the amount of study required is equivalent to around twenty units a year, but I enjoyed the process because our goal was to win a game. In that club, I was able to build a base of knowledge for international law in the same way as postgraduate students in law schools. This was an extremely valuable experience.
Furuya: If I remember correctly, during your second year, I believe you qualified to advance to the final round in Washington, D.C. Even though it was called a moot court, I am sure it was different from trials in Japan. The judge must have asked questions as they do in the USA, one after another. Even if you prepare a script for the plea, the judge will interrupt your argument and ask new questions from a different angle. Is it not difficult to respond quickly and appropriately?
Negishi: I felt lucky to participate in the final round in Washington, D.C. The theme of the moot court was the lawfulness of the humanitarian intervention in Sudan, and judges had to decide the winner and the loser even though the state of international law had not yet caught up with reality. I felt uncomfortable with this situation which is one of the reasons I decided to become a scholar who may conduct their original studies with a long-term perspective. Thanks to the serious training I received in the club, I was able to learn how to reformulate a social issue as a legal problem and build the reasoning necessary to solve it. Professor Furuya, I understand you will serve as judge for a moot court of international humanitarian law in March held in Hong Kong.
Furuya: That moot court is an activity to raise awareness of international humanitarian law. Mimicking the International Criminal Court, the moot court invites students from Asian nations and divides them into prosecutor and defendant before conducting a debate. As part of the activities of the International Humanitarian Fact-Finding Commission, of which I am a member, I will serve as the judge for the semi-final and provide a lecture at the keynote seminar. Speaking of which, these moot courts are conducted in English. How is your English ability?
Negishi: To be honest, I had a hard time and am still embarrassed by my English ability, particularly in terms of my speaking ability. However, I find it more embarrassing when no one listens to my arguments. Therefore, I make it a point to intentionally think, write, and speak in English. When I write and publish in English, I receive many more comments, and furthermore, their quality is higher and their level more advanced. On the other hand, in order to share information with practitioners in Japan and to rethink knowledge accumulated by the Japanese Society of International Law, I will continue publishing my thoughts in Japanese.
Furuya: When I went abroad in my mid-thirties, I felt strongly that I must write papers in English. You started thinking in English much earlier than I did. I believe future scholars should not hesitate to go overseas.
International Law Issues in Modern Society
Furuya: I believe one of your topics of study is relief for victims in Latin America.
Negishi: I learned of Latin America’s terrible situation by reading various works on the region. There have been states that were actually dictatorships, and they have enacted and applied domestic laws that clearly go against international standards. This has led to structural infringements on human rights. As Professor Furuya argues, this problem cannot be solved without intervention that is based on international law and respects sovereignty. Latin America is interesting because of the existence of the Inter-American Court of Human Rights. This judicial organ orders States Parties to correct the domestic laws in question by acting as a constitutional court within the treaty order. While this practice is limited to the specific area of human rights law, it could be linked to the relationship between domestic and international laws, which is a broad topic covering both international legal studies and constitutional studies. I found this interesting. I developed this idea under the leaders of global constitutionalism, Professor Toshiki Mogami (Graduate School of Political Science, Waseda University) and Professor Anne Peters (Director, Max Planck Institute for Comparative Public Law and International Law), and an advocate for the international law of intervention, Professor Furuya.
Furuya: This led to your research topic “Conventionality Control of Domestic Law: Constitutionalization of International Adjudication and Internationalization of Constitutional Adjudication in the Implementation of Regional Human Rights Treaties,” which won the Ikushi Prize. It does not split domestic and international laws into a dichotomy. I think this argument is based on the current situation where states are weakened and a new state structure is sought after. In my case, this translates into issues of armed conflicts and criminal responsibility, while in your case, it leads to questions concerning the guarantee of human rights. What are the prospects of your studies?
Negishi: Using the results from my studies, I will construct an analytic framework that integrates international human rights law and constitutional law (Figure 3). In the longer term, I will design a framework to guarantee human rights and that incorporates and integrates the development of plural areas (Figure 4). In parallel with these studies focusing on the guarantee of human rights, I will also study the topic of “Opinio juris in the International Lawmaking: Harmony between State Consent and Public Conscience,” which is an issue underlying international law in general. The aim of this is to provide a new perspective for resolving theoretical and practical issues when forming international law and aligning the will of the state that has been the traditional foundation of international law, with public conscience that has penetrated modern international law. This theme is so broad that I am not certain whether I can find the answer by the end of my career. Nevertheless, I am developing it steadily and boldly by finding opportunities to present new studies, such as at the conference of the Japanese Society of International Law last year or the European Society of International Law Research Forum scheduled this year.
Negishi: To use a medical metaphor, in traditional European thinking, patients are only informed of the name of their disease (recognition of state responsibility) and are then left to what they can do for themselves. However, the subjects of my study—Latin America and Central and Eastern Europe—are still in a situation where, although previous dictatorial regimes have collapsed and are being replaced with democratic governments, those responsible for the human rights violations are not being held responsible. International society may need to prescribe appropriate medication (identification of domestic remedies), or conduct an operation to stimulate weakened organs (assistance of governmental agencies), and, in extreme cases, remove tumors (invalidation of domestic law).
Furuya: The metaphor of removing cancer is applicable for international criminal adjudication. That means, for example, arresting the president. While there are states like Japan and the United States whose governments are legally stable and reflect public opinion, some states in the Middle East and Africa are losing legal control.
Negishi: Regardless of its name, the Islamic State is not a state. It appears as if the Islamic State is sending terrorists all over the world, or that terrorists around the world are acting on behalf of the Islamic State, albeit independently. Terrorist attacks occur around the world and the Islamic State ultimately claims responsibility for them.
Furuya: However, I believe the situation where states in the Middle East and Africa lack complete control is a major issue for international law to address. Our concept of a state does not apply to them. In fact, they have no intention of complying with international law. In the case of 9/11, an important issue in terms of international law is how we should understand Al Qaeda. Al Qaeda is a network-style organization that is not restricted by two-dimensional spaces such as territories. International law has traditionally covered states and other territorial organizations, but Al Qaeda does not fall into this category. In contrast, while the Islamic State is a territorial organization, it does not recognize international law at all. I entered graduate school in 1981, during the Cold War. In those days, international relations were stable, which was neither good nor bad, and international law textbooks had claimed similar things for a long time. Since the Cold War, however, textbooks have been rewritten many times. .
Negishi: Today, it is not enough to read just one particular book. Different authors have different views of international law. The best thing in studying with Professor Furuya is that we can consider the same issue from both sides, with me focusing on individual rights and Professor Furuya on individual responsibility. I really appreciate Professor Furuya’s instruction because he expands my horizons by providing a perspective that looks at the other side of my idea. I want to work even harder in my studies going forward.
Furuya: I look forward to Negishi’s future accomplishments.
Professor Furuya assumed his current position after withdrawing from the Doctoral Program at Waseda University’s Graduate School of Law and serving as Professor at Kagawa University’s Faculty of Law. He is a member of the International Humanitarian Fact-Finding Commission, and was a Visiting Professor of the Netherlands Institute of Human Rights at Utrecht University. His main subjects of study include international criminal law, international criminal adjudication, and the legal frameworks for the relief of victims after armed conflicts as a part of the International Law Association (ILA). He is a board member at the Japanese Society of International Law (editorial board chair of the Journal of International Law and Diplomacy), the Japanese Association of World Law, the International Human Rights Law Association, the International Law Association Committee Officer, the American Society of International Law, the Asian Society of International Law, and the European Society of International Law.
Yota Negishi is a third year doctoral student in the Graduate School of Law (Course of Public Law) at Waseda University. He is a research fellow DC1 at the Japan Society for the Promotion of Science, a visiting research fellow at the Max Planck Institute for Comparative Public and International Law, and winner of the 6th Ikushi Prize (2015). His main research topic is “Conventionality Control of Domestic Law: Constitutionalization of International Adjudication and Internationalization of Constitutional Adjudication in the Implementation of Regional Human Rights Treaties,” which won him the Ikushi Prize. Other research includes “The Relationship Between the American Convention on Human Rights and Constitutions on the Basis of the pro homine Principle: Towards the Formulation of ius constitutionale commune latinoamericanum [Puro Homine Gensoku ni Motozuku Beishu Jinken Joyaku to Kenpo no Kankei: Raten Amerika Kyotsu Kenpo no Keisei ni Mukete],” Human Rights International [Kokusai Jinken], No. 26 (2015); “The Obligation of Reparations in the Implementation of the American Convention on Human Rights (1) & (2) [Beishu Jinken Joyaku no Jisshi ni okeru Baisho Gimu no Kino (1) & (2)],” The Waseda University Graduate School Law Review [Waseda Daigaku Daigakuin Hoken Ronshu], Nos. 148 & 149 (2013 & 2014); “Distribution of Powers for the Conventionality Control of Domestic Law between Constitutional and Ordinary Courts: Decentralisation and Recentralisation” Turkish Journal of Legal Studies, Inaugural Volume (2016); “El papel del principio de subsidiariedad para distribuir competencia entre tribunales de derechos humanos y Estados Partes: El modelo híbrido entre centralización y difusión del control de convencionalidad de derecho interno” in A. Von Bogdandy, F. Piovesan e M. Morales Antoniazzi (eds.), Direitos humanos e constitucionalismo regional transformador; Ius constitutionale commune na America latina (forthcoming), etc.
Accomplishments and research
- “Domestic Implementation of the Rome Statute in Japan”, Seoul International Law Journal, vol. 22 (2015), 39-56.
- “Victim Participation, Reparations and Reintegration as Historical Building Blocks of International Criminal Law”, in Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping eds., Historical Origins of International Criminal Law: Volume 4 (Torkel Opsahl Academic Publisher, November 2015), pp. 837-863.
- “Draft Procedural Principles for Reparation Mechanisms” in The International Law Association, Report of the Seventy-Sixth Conference held in Washington D.C. (2014), pp. 782-813
- 「作為“領袖犯罪”的侵略罪 侵略最好的留到最后？」『国際法研究』９巻（中国社会科学院・国際法研究所発刊、2013年）、pp.135 – 146