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NGO Information in Regard to the Fifth Periodic Report of the Japanese Government on the International Covenant on Civil and Political Rights (ICCPR)

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• On the Fifth Periodic Report of the Japanese Government
• From the perspective of Buraku problem
• From the perspective of Korean residents
• From the perspective of migrant workers
• From the perspective of Ainu issue
• From the perspective of Okinawa

Article 27 of the International Covenant on Civil and Political Rights and Japan’s Ainu Policy*

Takemasa Teshima**
Teacher, Fukuoka Prefectural University

I. Introduction

     The purpose of this article is to discuss the problems of the current policy towards the Ainu people as presented in the section of Article 27 of the fifth periodic report of the Japanese government that was submitted in pursuant to Article 40 Paragraph 1 (b) of the International Covenant on Civil and Political Rights.  In the first place, however, let us review the problems of the previous report submitted in 1997, as well as the “homework” that has since been assigned to the Japanese government.

     Ten years ago, the author pointed out:

The ten years from 1987, when the change was made in Ainu policy to “the Ainu as a minority,” was a transitional period of specifying that policy at an extremely slow pace.  The Ainu Culture Law[1] is something that has given a certain shape to the “minoritization” policy.  Considering the flow of events, the government did not need to deal hastily with the new Ainu Culture Law in the present report but is perhaps intending to include it as a specific piece of “progress” in the next periodic report.[2]

He added:

Viewed in this course of events [relating to the gradual expansion of the scope of the rights of minorities in the United Nations instruments], the Ainu Culture Law, we recognize, is a very weak measure in terms of the protection of the rights of minorities.  Since the government will likely attempt to play up the law presumably in the next periodic report, let us point out in advance that the government should assess accurately what will become possible, and to what extent, under the Ainu Culture Law in light of the current standard of the rights of minorities.[3]

     After pointing out the problems of the Hokkaido Utari Welfare Measures, the author further stated that:

Given the assumptions and purposes of both [the Hokkaido Utari Welfare Measures and the Ainu Culture Law], it is impossible to expect the [former] to complement the [latter] in social and economic aspects and, together with the [latter] law, to develop a general policy vis-à-vis the indigenous people.[4]

Nevertheless, the present report ends up merely propagandizing the Ainu Culture Law and the measures “related to improving the standard of living” as an extension of the Hokkaido Utari Measures.

     The author also criticized the implications of dealing with the Ainu people, who seek recognition as an “indigenous people,” under Article 27 without any commentary on the one hand and at the same time making no mention of other “ethnic, religious or linguistic minorities” living in Japan.[5]  No improvement is to be seen as to this point in the present report, either.  Far from that, the government is engaged in a subtle manipulation by entitling the section “Article 27: Rights of Shosu Minzoku” in the Japanese version of the report.  The Japanese government that translated the term “minorities” in the Covenant into “shosu minzoku” and denied its existence in its initial report of 1980 was subjected to severe criticisms from various quarters.  Under the policy of “minoritization” of the Ainu people, however, the government dares not change but fixes the translation “shosu minzoku” for Article 27, thereby eliminating the other ethnic, religious or linguistic minority groups concerned.  On the other hand, while using the collective concept of “minzoku,” the government will not speak of its rights at all.

     Having considered the fourth periodic report of Japan, the Human Rights Committee expressed its concerns about “the discrimination against members of the Ainu indigenous minority in regard to language and higher education, as well as about non-recognition of their land rights.”  With regard to the discrimination against the “Japanese-Korean minority” in Japan, the Committee called the attention of the government to the Committee’s opinion of 1994 that protection of the rights under Article 27 “may not be restricted to citizens.”  The government had been urged to produce the fifth periodic report based on the consideration of the observations of the Human Rights Committee, including those on other articles.[6]

     Furthermore, the Committee on the Elimination of Racial Discrimination (CERD) named  “the Korean minority and the Burakumin and Okinawa communities” in 2001 when it called upon the Japanese government to include in its next report to the committee “full details on the composition of the population” and particularly, “information on economic and social indicators reflecting the situation of all minorities covered by the Convention.”[7]

     With regard to Okinawa, groups and individuals, including the Association of Indigenous Peoples in the Ryukyus had submitted information about human rights violations caused by the presence of military bases on the island, factors obstructing the promotion of the indigenous language (uchinahguchi) and traditional customs and practices, and other issues to relevant U.N. forums continuously since before the CERD put together those recommendations.  Such activities led to the visit, albeit unofficial, by Doudou Diène, the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and to the inclusion of Okinawa in his report of 2006.[8]  In this report Diène concluded that “there is racial discrimination and xenophobia in Japan.”  Such discrimination manifests itself in various aspects of life, from social and economic to political, cultural and historical.  Other than the Ainu people, Diène referred to the Buraku people, Okinawans, people and their descendants from former Japanese colonies, and foreigners as the targets of discrimination.[9]  In spite of such a background, nowhere in the present report can we find a single passage mentioning Okinawa and its people.  The present government report totally ignores not only the actual Okinawan situation, which Fukuchi discusses in more detail in this counter-report, but the “homework” we have seen so far.

II. Measures to Promote Ainu Culture and to Improve Their Living Standard

     The present report mentions mainly two areas of Ainu policy.  One is the outline of the measures based on the Ainu Culture Law, and the other those for “improving the standard of living of the Ainu people in Hokkaido.”[10]  The emphasis of the government that carries out neither of them as the primary executor, however, lies on “provid[ing] the necessary subsidies,” “endeavouring to . . . ensure the necessary budget,” and “working to enhance the related budgets” for implementing those measures in the two areas.  The government boasts of the success of only the Ainu Culture Law.  Neither of the law nor the social and economic measures guarantees the rights of the Ainu people and, therefore, limiting our discussion to the Ainu, the present report contains no explanation at all of how the Japanese government protects their right to enjoy their own collective ethnic culture as stipulated in Article 27.  Having said that, let us try from here on to make some arguments along the content of the report, as it were, in the ring set up by the government.

1. The Ainu Culture Law of 1997

     The government does not seem to have studied the effects of the policy based on the Ainu Culture Law in detail.  The Foundation for Research and Promotion of Ainu Culture (FRPAC), is said to have internally looked back to the ten years of its work since the enactment of the law to consider its future projects, but as of today the content of its internal review has not been made public.[11]  Considering the fact that the government was invited by the CERD to submit more detailed information about the consequences of the 1997 law by January 2003,[12] the present report should have been able to contain it.  No such information, however, is presented.  The government should have been unable to evaluate the effects of the Ainu Culture Law without having studied them.  It is too optimistic and is nothing but mere propaganda to brag its success, saying that “[e]fforts are being made to preserve and promote Ainu culture through these kinds of projects, and gradually, Ainu traditions and the Ainu culture are increasingly becoming known among the public at large” and that “as a result, activities related to Ainu culture and traditions have been gradually spreading.” [13]  If it is allowed to speak intuitively from impressions and by the senses, virtually no such phenomena can been seen within the author’s living area.

     Under these circumstances, a symposium was held to review and discuss the ten years of the Ainu Culture Law jointly by the Japan Citizens’ Coalition for the U.N. International Decade of the World’s Indigenous Peoples and the Shimin Gaikou Centre in Tokyo in May 2007.  Although the participants gave a certain degree of positive assessment to the law, they pointed out a number of problems and challenges.  The enactment of the law has given an official legitimacy to the term “Ainu” and it seems to be certain that there is an increasing number of both Ainu and non-Ainu people who can use it without fear or hesitation.  In the administrative affairs, “Ainu” is used today in place of “Utari,” including the title of the survey by the Hokkaido local government which will be taken up later.  With regard to the execution of the various projects of the FRPAC, it may be true that such activities as promoting the Ainu language, transmitting traditional skills and ceremonial and other events, facilitating cultural exchanges, and so on have gradually become more vigorous and livelier through trial and error made possible by the financial support.  On the other hand, however, some concerns were expressed over the making of a new stereotype of Ainu culture, as called “a fixed Ainu culture” by a participant, through such activities as well as due to the limitation of the scope of “culture” defined by the Act.[14]  Thus, concerned citizens, both Ainu and non-Ainu, look to the possible danger of the law that it has been producing negative consequences unintended by the FRPAC even when its projects are implemented supposedly in good faith.

     If culture essentially means the totality of the naturally emerged ways of life and system of values of a group of human beings, we must note that the “projects” carried out under the provisions of the Ainu Culture Law are of an artificial nature and that the scope of the law is too narrowly limited.  This has created various kinds of “incongruous feelings” both among the transmitters and the transmitted who have participated in such projects.[15]

     Even such projects, however, are not necessarily guaranteed against discontinuation because of the shrinking financial support.  Although the national government states in the fifth periodic report that it “is endeavouring to enhance such measures and ensure the necessary budget for those　measures,” the Hokkaido local government is actually the primary administrator of the policy and the national government only matches the appropriation of the local government.  Thus, the Japanese government is not necessarily fulfilling such responsibilities and role of the primary actor vis-à-vis the Ainu people as it claims in the report.  Since the appropriation is dependant on the financial conditions of the local government, it has tended to be cut, reflecting the financial crisis of Hokkaido in recent years.  Twice as large an amount as the reduction by Hokkaido is automatically cut from the whole budget for the FRPAC projects, and in FY 2006 a total of 60 million yen was slashed out of the 720 million yen budget of the previous year.[16]  Although the FRPAC has requested the national government to fill the financial gap in order to remedy the situation, such a request “does not go through,” according to the chairperson of its board of directors.[17]  The national government is not as positive as it claims to be in the report.

     Another problem is that the Ainu Culture Law is in its reality nothing but pie in the sky to many other Ainu people even if it is benefiting some of the Ainu people who can afford to be engaged in the narrowly defined activities of culture and tradition.  Among those who are not benefited by the law are the people who are too busy making ends meet everyday to get involved in such “cultural” activities even if they want to,[18] and also those Ainu people who, living outside Hokkaido, cannot have access to the benefits of the law or the social and economic measures to be discussed in the next section in the same way as those residing in Hokkaido.[19]  These two categories of Ainu people often overlap each other in the Kanto area, and the Ainu organizations there have repeatedly requested the Tokyo metropolitan government to set up an Ainu community center that can serve as a base for cultural transmission and also to conduct a survey on their social and economic conditions.[20] The Tokyo local government, however, has not met the duties and responsibilities of local governments provided in Articles 3 and 4 of the Ainu Culture Law, and the national government just keeps looking on.

2. Improving the living standard of the Ainu people in Hokkaido

     It seems that because the national government itself recognizes the linkage between economic and social basis and “cultural” activities, it sets aside three paragraphs to describe “[p]olicies related to improving the standard of living of the Ainu people in Hokkaido” in the present report – although it may possibly have done so only because it has no other material for propaganda.  In this policy area as well, however, the national government only plays a secondary role, “offer[ing] its cooperation in the above measures being promoted by the Prefectural Government of Hokkaido” and “working to enhance the related budgets.”  Unlike the Ainu Culture Law, this policy for “improving the standard of living of the Ainu people” does not have any national legislative basis from its start.

     Although the government report relies on the “Survey on the Hokkaido Utari Living Conditions” conducted by the Hokkaido local government in 1999, a new “Report of the Survey on the Hokkaido Ainu Living Conditions” carried out in 2006 by the Department of Environment and Lifestyle of Hokkaido Prefecture was made public in March 2007, after the submission of the periodic report.  It has been the sixth survey by the prefecture since 1972, but not a single survey has been conducted by the national government during the same period.  As was pointed out concerning the assessment of the Ainu Culture Law, the national government grasps the number and conditions of the people concerned, the basic information necessary to carry out the measures for cultural promotion and dissemination and for the improvement of living conditions, only indirectly through Hokkaido’s “partial survey”[21] that has “problems with its survey [method] itself.”[22]  The Hokkaido survey naturally does not include in its scope those Ainu living outside Hokkaido.  Judging from this fact alone, we see the lack of seriousness and the poverty of policy at the national level of this country.

     What is actually made clear by an analysis of the “partial survey” of 2006 is that the economic conditions of the Ainu people have never been improving while economic and regional gaps have been widening in the Japanese society as a whole.  The narrowing of the socio-economic differences between Ainu and non-Ainu populations has mainly to do with the worsening of non-Ainu conditions.  In addition, those Ainu residents who have migrated from agricultural, fishing, or mountainous villages to urban areas are faced with difficulties in living there.  Under these circumstances, there are many people who can never afford to take part in the activities for cultural transmission.[23]  Only when day-to-day living is secured, can ordinary people allocate their physical and mental energy, money and time to “culture.”

     What is further to be noted is that there remains a large gap between Ainu and non-Ainu respondents in the rates of high school graduates who go on to university or college in the age when virtually all the high school graduates who intend to go to college can do so numerically.  Wataru Takeuchi, Deputy Director General of the Secretariat of the Ainu Association of Hokkaido, has this to say regarding the situation:

There is a reality that the parents’ generation is undereducated as a result of the past history of discrimination and oppression.  Furthermore, unstable employment, unstable living, family environment unsuitable for studying -- all deriving from undereducation --, and discrimination in school depriving children of learning motives . . . are the major causes [of the low percentage of Ainu children going to college].[24]

Unfortunately, even though there appears to be some superficial improvement of living and reduction of socio-economic gaps, there still persists the very downward spiral structure of discrimination and oppression that the author presented as the reality of racial discrimination in Japan nearly twenty years ago.[25]  Notwithstanding that, financial cuts are being made with regard to the measures for “improving the standard of living.”

     One of the historical and contemporary experiences shared by many of the indigenous peoples as “first peoples” is that they become the “last people” as to the enjoyment of their rights and benefits and the “first people” when it comes to the subjection to disadvantages.  Either for the Ainu Culture Law or the livelihood-improving measures of the Hokkaido government, a legislative act will be necessary to stipulate clearly a financial policy which will guarantee priority funding as a right until the realization of “a society in which the racial pride of the Ainu people is respected” or until socio-economic discrimination is eradicated completely.[26]  The enactment and continued presence of the Ainu Culture Law are justified because there exists in reality a society where the pride of the Ainu as a people is not respected, and the implementation of the Hokkado Utari Measures and the new measures for improving the living standard of Ainu people without any legal foundation has been considered legitimate simply because there have been socio-economic gaps between Ainu and non-Ainu residents in Hokkaido.  Is it not high time both the Japanese and Hokkaido governments “officially and publicly” admitted the existence of racial discrimination in Japan, as Special Rapporteur Diène has recommended,[27] and made a fresh start from that acknowledgment.

III. Perspectives Needed for the Protection of the Right to Enjoy Culture

1. Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples

    

We have already seen that the Ainu Culture Law has no explicit provisions to safeguard the right of the Ainu people to enjoy their own culture, but if the government aims at the realization of a society where the pride of the Ainu people will be respected, how does it intend to make their collective presence as a people possible?  What are the foundations that will enable the Ainu people themselves to transmit and develop their distinct culture and traditions?  It is a common sense in the forum for considering the rights of indigenous peoples that it is a meaningless approach to separate only the cultural right of Article 27.  It is stated clearly in the joint papers of Yozo Yokota, a member of the Sub-Commision on the Promotion and Protection of Human Rights, and the Saami Council on the principles and guidelines for the development of the standards regarding the protection of the heritage of indigenous peoples that such protection shall be “based on the right to self-determination of all peoples, including indigenous peoples, encompassing indigenous peoples’ right to sovereignty over natural resources in their territories.”  The proposed criteria of the guidelines also recognize “that indigenous peoples’ cultural heritage is intrinsically linked and connected to their traditional territories, lands, waters and natural resources, ” concluding that “[i]ndigenous peoples’ control over traditional territories and resources is thus essential to the protection of their cultural heritage and its transmission to future generations.”[28]  The current governmental policy for cultural promotion completely lacks such a perspective, and the principles and guidelines contained in the Yokota-Saami papers have significant implications for the implementation of Article 27 by the Japanese government in the future.

2. The Court Judgment in the Nibutani Dam Litigation

    

What has been completely ignored in the fourth and fifth government reports in spite of its very significant implications in relation to Article 27 is the decision made by the Sapporo District Court in the “Nibutani Dam case” in May 1997.  The court found that the Ainu people are a “minority” mentioned in Article 27 and an indigenous people at the same time, and concluded that because “the Ainu culture of the region in question and the nature including the land that has nourished it are in a close, inseparable relationship,” the construction of the dam makes it difficult to transmit “the ethnic, cultural, historical, and religious values of the Ainu people.”  The decision requires a broader perspective that is necessary in guaranteeing and protecting Ainu cultural rights and has an underlying connection to the perspective of the Yokota-Saami papers.  In spite of the presence of the unlawful dam that violates the Ainu people’s right to enjoy their own culture, the present and previous government reports make no mention of this case at all.

   

Moreover, the government report refers to the concepts of “public welfare” and “public interest” here and there.  The Human Rights Committee that reviewed Japan’s previous report “reiterate[d] its concern about the restrictions which can be placed on the rights guaranteed in the Covenant on the grounds of ‘public welfare,’ a concept which is vague and open-ended.”[29]  Although in the present report the government asserts that “there is no room for arbitrary use of the concept of ‘public welfare’ by the State,”[30] wasn’t the dam construction in Nibutani the very case in which the State was sternly indicted for taking advantage of that concept to “unjustly underestimate or disregard” and illicitly violate the cultural rights of the Ainu people, “the elements and values which should be regarded as most important from the start”?  In the name of “public welfare” the Japanese government not only dammed the Saru River but also damned the Ainu people.[31]

3. The Litigation over the Common Property of the Ainu People

   

Another important case that took place during the past ten years after the submission of the previous report but is not noted at all by the government this time is the litigation filed in 1999 over the management of the common property of the Ainu people.  It was triggered by the supplementary procedural provisions of the Ainu Culture Law for returning the common property that was necessitated by the coinciding repeal of the Hokkaido Former Aborigines Protection Act of 1899.  The Sapporo High Court pointed out that “it cannot be denied that there remain cases” that the governor of Hokkaido, being responsible for its management, “has not been able to have a complete grasp of the details of the historical management” of the Ainu communal property, but nonetheless dared not step into a “more specific trial of allegedly incorrect points.”  After all, the case was dismissed by the Supreme Court in March 2006, with the present situation and the history of the management of the property for the period of nearly three-fourths of over a hundred years in the past “remaining utterly unexplained.”[32]

     In the trial process the plaintiffs argued that the procedural clauses of the Ainu Culture Law to return Ainu common property “unjustly underestimate[d] or disregard[ed] the ‘values of the culture’ of the Ainu people,” and “tremendously damage[d]” their cultural rights that ought to be protected under Article 27 “without taking any measures regarding the nature of the relationship of property to Ainu culture.”[33]

4. “Japan-as-Mono-Ethnic” Statements

   

The Japanese government has clearly stated in its first to third periodic reports that “no person is denied the right to enjoy one’s own culture, to practice one’s own religion, or to use one’s own language” in this country.[34]  The statements of Japan being a “mono-ethnic” or “nearly mono-ethnic” country frequently made by high-ranking politicians of the ministerial level of the ruling Liberal Democratic Party, however, influence the making of public belief of the society through the mass-media, leading to a tacit oppressive environment that makes it difficult for the Ainu people and other minorities to freely use their different languages and practice their own culture and religion.  Even if we limit such remarks only to those reported by the media after the submission of the previous report, they include the ones:

(1) of “a high-level single ethnicity” by Takeo Hiranuma, the then Minister of Economy, Trade and Industry on July 2, 2001;

(2) of “one state, one language, and one ethnicity” and on the completion of assimilation by Muneo Suzuki, a former Foreign Minister and a member of the House of Representatives on July 2, 2001;

(3) on “the Yamato as the mono-ethnic people” by Koji Omi, the then State Minister for Okinawa and Northern Territories Affairs, Science and Technology Policy in late November 2001;

(4) affirming the “state of single ethnicity” by Yasuhiko Torii, the then chairperson of the Central Council for Education in February 2003;

(5) priding in “one civilazation, one language, one culture, and the people of one ethnicity” by Tarou Asou, the then Minister of Internal Affairs and Communications in October 2005; and

(6) of “an extremely monolithic country” by Bunmei Ibuki, the then Minister of Education, Culture, Sports, Science and Technology in February 2007.

     The Ainu people have long been treated as an anomalous existence in the assimilation policy.  In order to make Japan a society where they can take pride in themselves and their culture, it is necessary to acknowledge the fact that the Japanese consist of multi-ethnicities and multi-cultures.  It is also necessary to establish the idea that such a multi-ethnic and multi-cultural society is not an anomaly as a socially accepted truth firmly and widely among the citizens.  Those repeated comments on “Japan as a mono ethnic state,” however, particularly by those holding the important positions of educational administration, such as Ibuki and Torii, contaminate the social environment for realizing the spirit of Article 27.  Those who ought to be enlightened first are the elite of this kind.[35]  Nevertheless, the government takes no measures to prevent or punish them.  Such inaction is the neglect of the obligations under, and is a violation of, Article 4 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination.  Needless to say, the Japanese government has been recommended to lift its reservation on paragraphs (a) and (b) of the same article.[36] 

     Furthermore, school education seems to play one of the most important roles in eliminating discrimination in society, promoting Ainu culture, and disseminating knowledge about it to non-Ainu Japanese people, but the descriptions and accounts of the people, history, and culture of the Ainu in those textbooks and side readers being now used in elementary and middle schools, over which the Ministry of Education, Culture, Sports, Science and Technology have the directive power, are so inadequate that the Ainu Association of Hokkaido has been demanding their improvement.[37]  The government ought to make and fully implement an educational policy to eradicate discrimination against the Ainu people and to protect their rights in compulsory education.  In this regard, it is deplorable that not a line or even a word or even a line is written down to mention what the government has been doing specifically in relation to the rights of the Ainu people in the section describing its measures for the U. N. Decade for Human Rights Education.[38]

IV. In Lieu of Conclusion

     The Ainu Association of Hokkaido reaffirmed its 1984 resolution in its general assembly in 2007, that is, “returning” to the resolution to petition for a new “Law on the Ainu People” and “proceeding with consideration [of] a new ‘ideal for Ainu policy’ based on the U.N. Declaration on the Rights of Indigenous Peoples.”[39]  The Ainu people have been explicitly seeking to be recognized as an indigenous people since they left their first footprints in the U.N. Working Group on Indigenous Populations in 1987.  At the core of the rights of indigenous peoples lies the right of self-determination, and Article 3 of the U.N. Declaration on the Rights of Indigenous Peoples adopted in 2007 clearly states that “[I]ndigenous peoples have the right to self-determination.”

     In the present report the Japanese government uses “jinmin” for “peoples” in Article 1 of the Covenant and differentiates it from “minzoku” for “minorities” by placing the former above the latter.  It states that “Japan has consistently recognized the right of all peoples to self-determination based on the Charter of the United Nations and this article as stated in previous reports.”[40]  In other words, the Japanese government attempts to place the Ainu minzoku as a minority below indigenous “peoples.”  The word “peoples,” however, is translated both ways into “jinmin” and “minzoku” even in academic works.  Besides, the government officials themselves refer to indigenous “peoples” as indigenous “minzoku” elsewhere, which proves the futility of the manipulation of translation by the government.  After all, will the Japanese government keep refusing to recognize the Ainu as an indigenous people and to speak of a policy to recognize their right to self-determination under Article 1 of the ICCPR beyond the linguistic manipulation of “peoples”?

* The author wishes to express his thanks to Sato Yukio, Director General and Takeuchi Wataru, Deputy Director General, both of the Secretariat of the Ainu Association of Hokkaido, Hasegawa Yuuki of Ainu Resource Centre, Ogawa Ryukichi, former representative of the plaintiffs of the Ainu Common Property Litigation for their precious information and opinions.  The views expressed in this article, however, are of the author himself and do not represent or speak for any other individuals or organizations.

** Takemasa Teshima was formerly professor at Kyushu Women’s University and currently teaches part-time at Fukuoka Prefectural University. He holds a Ph. D. in political science from the University of Washington.