Resolution Requesting the Implementation of an Individual Complaints Procedure and the Establishment of a National Human Rights Institution
After the two World Wars, the international community has come to a deep understanding that it is essential to protect human rights in each country in order to prevent any reoccurrences of such tragedies and realize permanent peace. Also, in view of the fact that human rights violations, the degree of which has rarely been seen in history, was legal within respective countries during the wars, it is important to establish an international system to ensure national human rights protection, rather than depending on each nation’s discretion. This is how the United Nations (UN) was established in October 1945, and the International Declaration of Human Rights was adopted in December 1948. Moreover, to substantiate the protection of human rights proclaimed in the International Declaration of Human Rights, the UN has adopted over 20 international human rights instruments as of today.
Some of these international human rights instruments include an individual complaints procedure. An individual complaints procedure is a mechanism in which an individual, whose rights were violated in accordance with international human rights treaties, but could not be recovered by all relief measures in Japan, such as by filing a lawsuit, can directly petition to human rights treaty bodies for relief. Although eight out of all international human rights instruments that Japan has ratified contain individual complaints procedures, Japan is yet to implement any one of them.
Thus, the Japanese court never receives criticisms from treaty bodies against its judgements and lacks sufficient understanding of international human rights instruments. As a result, although treaties and conventions are theoretically supposed to supersede domestic laws, the international human rights instruments are never directly applied in the Japanese court, and international human rights instruments are almost never used as criteria when interpreting the national laws.
Furthermore, national human rights institutions have been established in many countries around the world, allowing anybody residing in that country the right to petition for human rights relief regardless of his or her nationality. In the United Nations General Assembly in 1993, Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (The Paris Principles) were adopted, which outlined the basic elements of a national human rights institution, for instance about its authority, structure and independence, etc.
Currently, national human rights institutions are in place in more than 120 member states of the UN, but not yet in Japan.
Therefore, the JFBA urges the government to undertake the following measures:
1. To immediately implement an individual complaints procedure.
To either ratify the optional protocols to the ratified conventions that contain individual complaints procedure, or declare the approval of individual complaints articles in those conventions. The human rights instruments ratified by Japan are: International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of all forms of Discrimination against Women; United Nations Convention on the Rights of the Child; International Convention on the Elimination of All Forms of Racial Discrimination; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; International Convention for the Protection of All Persons from Enforced Disappearance; and Convention on the Rights of Persons with Disabilities.
2. To urgently establish a national human rights institution as described below:
| (1) | To legislate so that the institution’s authority to appoint and dismiss its commissioner and bureau, and financial affairs such as the institution’s budget, will not be under the control of the government and comply with the Paris Principle. |
(2) The national human rights institution is to have the capability to do the following:
| (i) | To operate as a human rights relief system, the institution should be authorized to conduct factual investigations (including the authority to investigate public organizations), and be capable of taking relief measures such as mediation and issuance of recommendations. |
| (ii) | To operate as a policy recommendation system, the institution should be capable of taking measures to the legislative/administrative organs of central and local governments to guarantee human rights as a system. Such measures include: stating opinions on lawmaking, and making proposals concerning the revision of the existing laws or the planning and altering of administrative policies, |
| (iii) | To operate as a human rights education system, the institution should be capable of conducting human rights education programs for schools, companies, persons engaged in the application and enforcement of law, such as judges, prosecutors, police officers and staff in penal institutions, attorneys, etc. |
| (iv) | To operate as an international cooperation agency, the institution shall be capable of cooperating with the UN, its related organizations, and foreign national human rights institutions. |
It has been 40 years since Japan ratified the International Covenant on Civil and Political Rights and the International Covenants on Economic, Social and Cultural Rights. Now is the time to implement the two systems in order to accelerate progress in solving today’s profound social problems such as children’s rights, discrimination against women, discrimination against the disabled, rights of foreigners and hate speech.
Hence, the JFBA urges the Japanese government to implement an individual complaints procedure and establish a national human rights institution that complies with the Paris Principle relating to the Status of National Institutions for the Promotion and Protection of Human Rights. The JFBA is also determined to continue to show full commitment to the issue.
Also, in order to assure the effectiveness of the international human rights laws including the international human rights instruments in the Japanese court practice, it is vital that each litigation attorney practices the international human rights instruments in courts.
Hence, we attorneys will make every effort to train ourselves to utilize international human rights instruments better, and the JFBA is determined to enhance its activities as an organization, such as providing training programs on these international human rights instruments.
October 4, 2019
The Japan Federation of Bar Associations
