Article 98 of the 1946 Japanese Constitution provides:
This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. The treaties concluded by Japan and established laws of nations shall be faithfully observed. (1) According to the established scholarly opinion, an international treaty has a status in the Japanese legal system that is intermediate between the Constitution and national legislation. (2) This means that the Constitution is superior to the international treaty but that the international treaty is superior to national legislation. Such an interpretation reflects the second sentence of Article 98 of the Constitution, quoted above.
This hierarchy of laws does not mean that national legislation incompatible with an international treaty is thereby rendered null and void. According to Japanese court decisions, as will be seen later, an international treaty does not confer rights on individuals directly; it only imposes obligations on the state parties to that treaty. This does not mean that international treaty provisions have not, in some matters, had substantial influence on the Japanese legal system (3); it simply means that the overall impact on the judicial system has been rather limited.
This tendency can be seen in the context of human rights protection. In many cases, Japanese courts have declined to hold a provision of national legislation to be incompatible with international human rights instruments. This reluctance of the Japanese judges to declare the incompatibility of national legislation has been subject to criticism both from Japanese and foreign experts in international human rights law.
The present article discusses the impact of international human rights standards on the Japanese legal system. It begins by briefly introducing the relationship between international treaties and national legislation, especially before the Japanese courts. Through the discussion, the attitude of Japanese judges towards international human rights norms is discussed. The article then considers some typical cases to show how certain international human rights standards have had a strong impact on Japanese national legislation. It focuses on the particular issue of social security by presenting analysis of relevant case decisions. This focus departs from the more usual practice of discussing the impact of international human rights standards through the lens of civil and political rights. By focussing on social security issues, particularly public assistance, this article aims to demonstrate that the impact of international human rights, especially in relation to economic, social and cultural rights, is much broader than it is usually thought. The article concludes with a brief conclusion.
INTERNATIONAL HUMAN RIGHTS STANDARDS WITHIN THE JAPANESE LEGAL SYSTEM
In this section, there are three points to discuss. Subsections 1 and 2 address the approach of Japanese judges to the application of international treaties in domestic proceedings and thereby makes clear a general reluctance to incorporate international standards into domestic law, especially in human rights cases. The practical impact of international human rights standards is examined in subsection 3. The focus is not so much on the judges but on other aspects of the Japanese legal system. For example, the Japanese government amended discriminatory domestic legislation as a result of media coverage and in response to recommendations made by UN bodies. Notwithstanding such impacts, important issues remain unresolved in the Japanese legal system.
Status of International Treaties Before Japanese National Courts
Pursuant to Article 98 of the Japanese Constitution, an international treaty becomes part of Japanese law upon ratification without the necessity of any legislative act to give it force as part of domestic law (theory of general acceptance). (4) As mentioned above, a treaty has superior legal effect in the Japanese legal system to ordinary domestic legislation but is subject to the superior law of the Constitution. This hierarchy does not necessarily mean, however, that legislation is null and void because it conflicts or is inconsistent with a provision of an international treaty to which Japan is a state party. (5)
What then is the consequence when national legislation is found to be in conflict with an international treaty? Can litigants succeed in their claims by arguing that a provision of national legislation is a nullity because of an inconsistency with a provision of a treaty? In other words, what effect does a Japanese court give to a treaty? (6) The general answer is quite simple: a Japanese court will not give effect to such a claim because a treaty, by its nature, creates only legal obligations between states. A Japanese court will only directly apply a treaty in domestic proceedings if it is properly characterized as "self-executing".
The theory of the "self-executing" treaty derives from American jurisprudence. In the Japanese context, two requirements must be met in order for a treaty to be characterized as "self-executing" and thereby directly applied by Japanese courts: (i) whether the parties have not excluded the direct applicability of the treaty as a whole (exclusion of direct applicability as a whole) and (ii) whether the treaty provision in question is sufficiently precise and complete in itself as to be directly applicable (precision of the terms). (7)
In most cases which have addressed the issue, the treaty in issue does not contain individual rights in a clear way so as to characterize the treaty as "self-executing". Notwithstanding this practical limitation, the doctrine of the "self-executing" treaty has had such a strong influence on the Japanese judiciary that it became a de facto barrier to the direct application of international treaties in domestic law.
A typical example can be found in X v Government of Japan, a case concerning compensation for injuries suffered by persons during the Second World War (WWII). (8) At that time, about 40,000 prisoners of war were detained by Japanese military forces in concentration camps in the Dutch East Indies (now Indonesia). Dutch ex-prisoners of war claimed compensation for the injuries they suffered through inhumane treatment and for their forced labour during their periods of detention. The plaintiffs filed a civil action against the Japanese government, invoking Article 3 of the 1907 Hague Convention Concerning the Laws and Customs of War on Land, (9) as well as customary international law. Before the Japanese national court, the plaintiffs argued that Article 3 of the Hague Convention created a direct right to individual compensation for their treatment and forced labour. (10)
The Tokyo District Court rejected the claim based on the Hague Convention because the Convention does not stipulate any detailed formalities for individuals to claim individual rights. According to the Court, Article 3 provides that a belligerent party is liable to pay compensation in the case of a violation of the Convention but it does not provide detailed procedural formalities for such compensation, nor the right of individuals to receive compensation. (11) The 1907 Hague Convention is itself silent on an individual right to compensation and the travaux preparatoires (drafting history of the treaty) did not indicate that the parties to the treaty intended to confer the right to reparations on individuals. On appeal, the Tokyo High Court affirmed the reasoning of the District Court and also concluded that the second condition for self-execution was not satisfied. (12) Similar analysis is found in cases dealing with international human rights conventions.
The Japanese Code of Civil Procedure limits the grounds of appeal to the Supreme Court of Japan to claims based on a contravention of a provision of the Constitution. (13) The Code does not recognize, as a ground of appeal, a claim based on an international treaty. The same limitation appears in the Code of Criminal Procedure. (14)
In general, Japanese judges have been reluctant to apply international norms to domestic cases. One of the reasons for this reluctance may be the fear that Japanese national legislation will be overturned by the external legal order not familiar to Japanese jurists, including both practising lawyers and judges. As noted above, the theory of self-execution serves as a de facto barrier to a claim grounded in the provisions of an international human rights treaty but that does not mean that respect for international human rights has no place in the Japanese legal system. Though Japanese courts do not rely on international instruments directly to protect human rights, the courts instead tend to the view that the provisions of human rights treaties are equivalent to the relevant human rights provisions in the Constitution; therefore, Japanese courts need not adjudicate such claims based on the treaties directly.
This approach requires careful attention. First, not all of the human rights provisions found in the Constitution are the same as international human rights standards. For example, it is often said that the definition of discrimination for the purposes of the Constitution does not reflect the concept of gender, as enshrined in the 1979 Convention on the Elimination of All Forms of Discrimination against Women (15) and 1965 Convention on the Elimination of All Forms of Racial Discrimination (16). Secondly, there are differences as to the normative scope of rights. For example, the Japanese government does not recognize a right for non-Japanese nationals who are resident in Japan, even persons with permanent resident status, to return to Japan as his or her country. This position is contrary to the generally accepted interpretation of the 1966 International Covenant...