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9 Annexes (2/2)

　Annex 3 : The Covenant Within Japanese Jurisprudence

"Treaties concluded by Japan and established laws of nations shall be faithfully observed." (Art. 98 (2) of the Const. of Japan)

Throughout the fact-finding mission the HIC delegation continually brought attention to the clear relevance of the Covenant on Economic, Social and Cultural rights to the prevailing situation of housing deprivation in Kobe, consistently raising this issue with governmental officials, the legal community and various NGOs and CBOs. As noted earlier, very few public officials with whom the HIC delegation spoke (despite the fact the these included members of Ministries clearly linked to the enjoyment of economic, social and cultural rights), had any knowledge of the existence, let alone detailed awareness of the legal and other issues arising pursuant to the Covenant.

In order to clarify further the general legal position of the Covenant in Japan, the HIC team also examined relevant academic literature, as well as holding discussions with several Japanese lawyers as to this status. Above all, the delegation found that as far as the judiciary in Japan is concerned, the Covenant has played only a limited role thus far.

Although the Japanese judiciary has taken an overly restrictive view of the legal relevance of the CESCR within the domestic legal system, basing their arguments primarily upon a very narrow reading of the general obligation norms contained in article 2 (l) of the CESCR, the validity of the Covenant within Japan, the governmental obligations arising from this treaty and the pertinence of the CESCR to the situation in Kobe is beyond dispute. Indeed, article 98 (2) of the Constitution of Japan clearly states that 'treaties concluded by Japan and established laws of nations shall be faithfully observed'. Nevertheless, in practice the Covenant has been accorded a very limited scope within the national legal and judicial frameworks, as the following examples reveal.

In 1986 the Osaka High Court denied the direct applicability of article 11 (1), suggesting that the CESCR as a whole was not directly applicable because of article 2 (1). In 1989 the Supreme Court of Japan denied the direct applicability of the CESCR in the Shiomi Case. The Osaka High Court argued that "This Covenant...is not a type of treaty whose contents become operative like domestic law by themselves, but a type of treaty which requires legislative procedures for its contents to be implemented...' An appeal was made, but the Supreme Court rejected it, denying the direct applicability of article 9 of the Covenant in the following words: " This article...does not provide for a concrete right to be granted to individuals immediately. That is clear also from article 2 (1) which requires the States parties to 'take steps with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'.

While many refutations could be applied against these judgments, Habitat International Coalition would like to emphasize several key legal points in this regard in support of the relevance of the CESCR within Japanese society:

1 In 1983 the Tokyo High Court reversed a lower court decision, stating implicitly that the CESCR created clear obligations on behalf of the government (judgment of 20 October 1983, Tokyo High Court, 1092 Hanrei Jiho 32, at 33-4);

2 In 1992 the Tokyo High Court used the term 'self-executing'...apparently recognizing the direct applicability of the Covenant on Civil and Political Rights (CCPR)' (judgment of 8 April 1992). If the CCPR can be recognized in this manner, it is doubtful that a blanket exemption can be made of the CESCR, which contains many similar, if not identical, clauses to those found in the CCPR;

3 Customary law is generally regarded as a part of Japanese law within national jurisprudence. Consequently, arguments could be made as to the necessity of accepting the Universal Declaration on Human Rights (housing rights are found in art. 25 (1) of the UDHR) as part of Japanese law, by virtue of its frequently referred to status as customary law;

4 If there is no domestic law giving effect to treaties, the government usually attempts to have laws and regulations enacted to give effect to a treaty. It is arguable whether the government of Japan has legislated sufficiently to ensure the full realization of article 11 (1) within the shortest possible time-frame;

5 The decisions in the 1986 and 1989 cases noted above must be seen light of the fact that in no case has a court found Japanese law to be inconsistent with the Covenants. As such, the Japanese judiciary has shown great reluctance to base decisions at all on international legal provisions in general terms, not solely on the basis that the CESCR is not directly applicable;

6 International law requires judicial systems, at a minimum, use international standards as interpretive aides in determining the meaning of domestic laws when these require clarification. In some cases, courts in Japan have done so by reference to the UDHR. This could be done to a much greater degree;

7 Most of the judicial decisions made in Japan relating specifically to the Covenant, were made prior to the issuance of many new texts and interpretations of the Covenant by the Committee on Economic, Social and Cultural Rights and other (quasi) individual bodies, both international and national. For instance, neither General Comment No. 3 ('The nature of States parties obligations (art. 2 (1) of the Covenant')) nor General Comment No. 4 (The right to adequate housing (art. 11 (1) of the Covenant) were adopted when the 1986 and 1989 decisions were made. Moreover the courts appear to have consciously ignored interpretative documents (soft law) developed by international lawyers;

8 Many provisions of the Covenant are clearly precise enough to be applied or adjudicated in Japan. No judiciary would oppose the justicable nature of the non-discrimination clauses of the Covenant, nor should they ignore sentiments contained in both General Comment #3 and General Comment #4 which elaborate clearly those aspects of the Covenant and housing rights which can and should be subject to judicial scrutiny within all States parties to the CESCR, including Japan;

9 The courts have refrained from referring to the national jurisprudence of other nations' on the CESCR, despite these being of potentially great assistance;

10 As far as decisions concerning the applicability of the CESCR in Japan are concerned, the courts have neglected to address important legal issues such as 'pacta sunt servanda' (treaties shall be observed in good faith), nor the implications of article 27 of the Vienna Convention on the Law of Treaties which provides that "A party [to a treaty] may not invoke the provisions of its internal law as justification for its failure to perform at treaty...".

Many additional points could be made, but suffice it to say that the role of the CESCR within Japan may be much more significant than the status accorded it thus far by the judiciary. Of course, the domestic applicability of the CESCR remains only one aspect of the overall relevance of this treaty within Japan, and though courts have taken this text less seriously than perhaps could have been the case, the fundamental rights and obligations it contains remain legally binding and relevant to the post-earthquake situation in the country

It appears to HIC that the treaty obligations of the government under the Covenant have almost entirely been ignored by public officials in the post-earthquake period. Moreover the government of Japan is more than four years late in submitting a 'State report' to the UN Committee overseeing compliance with the Covenant, raising doubts as to the seriousness with which the government is taking its legal obligations arising from this text. States parties to the Covenant are required to submit reports once every five years. Japan has not reported, for instance, on the status of article 11 since 1986.