A Proposal for a Globalized World: Globalized Constitutions -A Multi-layered System for Protecting Human Rights-

Last year, the Supreme Court of Japan made a landmark ruling. It held that a clause in the Civil Law stipulating that the legal inheritance share of a child born out of wedlock should be half that of a child born in wedlock was in violation of the Constitution, which guarantees equality for all under the law. This ruling has the potential to be extremely meaningful from the perspective of a “multi-layered system for protecting human rights”. In fact, the Supreme Court had previously ruled in 1995 that the same clause of the Civil Law was constitutional. So what happened to change the Court’s judgment? Put simply, this was the result of diversification in marriage and family models, and changes in people’s perceptions. However, in addition to this the Supreme Court also cited legal revisions overseas and recommendations from international organizations.
Why should legal revisions overseas be relevant? The reason is that Japanese law was modelled on Western law during the Meiji modernization and has been influenced strongly by Western law ever since. In the past, the law in Western countries also discriminated against children born out of wedlock. When a debate was held concerning revisions to the Civil Law in 1947, numerous legislative examples were referred to and these had an impact on Japanese law. However, since the second half of the 20th century many countries have set out to abolish legal discrimination. The Supreme Court has been paying attention to this trend. Specifically, in 1995 at the time of the ruling that Japan’s discriminatory laws were constitutional, weight was given to the fact that German law and French law still contained discrimination. There is one more important factor in the background to these legal revisions. In 1979 the European Court of Human Rights (a regional human rights court for 47 Member States of Europe), ruled that Belgian law, which discriminated against children born out of wedlock, was in violation of the European Convention on Human Rights. This ruling encouraged legal revisions in European countries. France, which was one of the last countries to retain discriminatory legislation, was ruled to be in violation of the European Convention on Human Rights by the European Court of Human Rights in 2000, and in 2001 France revised its laws.
Some may argue that these overseas developments have nothing to do with Japan. However, attention needs to be paid here to the fact that the Supreme Court also cited recommendations by international organizations. The United Nations Human Rights Committee and the Committee on the Rights of the Child have repeatedly made recommendations to Japan to revise discriminatory laws. As a signatory nation, Japan has an obligation to achieve the human rights guaranteed by human rights treaties. As described above, these treaties are participated in by numerous other countries around the world in addition to the likes of Belgium, Germany and France. Surely the following trend is now beginning to emerge: the initiatives implemented in various countries are having a cumulative effect on international standards, but at the same time, as international standards become established, these standards begin to permeate individual countries. A dynamic multi-layered and pluralistic structure (a multi-layered system for protecting human rights) has begun to appear whereby international standards and individual countries interact mutually in the establishment of human rights standards.

So what of the current system in Japan for guaranteeing human rights? The human rights set out under the Constitution of Japan were “state-of-the-art” at the conclusion of the Second World War. Japan has updated its human rights since then by ratifying a variety of different international human rights treaties under the system of the Constitution.
What significance does this have? Firstly, international human rights treaties not only provide for human rights in general (such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), they also focus on the human rights violations of vulnerable groups such as women, children and the disabled (the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities), and target behavior abhorred by all people, such as torture and racial discrimination (the United Nations Convention against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination). Treaties now pay closer attention to “what the current issues are” based on the history of each country and current experience.
Secondly, the treaty organizations established by the respective international human rights treaties carry out monitoring of the status of human rights in the respective countries. By participating in a treaty, governments must regularly submit reports to the treaty organization on the status of human rights in their own countries, and treaty organizations carry out screening and assessments based on these reports. Human rights NGOs also have the opportunity at this time to provide information from a different perspective to that of the government. In modern societies, organizations such as companies and universities disclose information, and this information is used as the basis for deciding whether or not to invest, whether or not to purchase a product, and whether or not to apply for an admission at a particular university. It is natural to work hard to make improvements with an awareness of your external reputation, and organizations deliberately incorporate third-party assessments to increase the true value of assessments. The same thing can be said of states. Government reports and subsequent reviewing of these reports represent an excellent opportunity to learn about the human rights issues a country faces, and how (or whether) these issues are being tackled. The measures implemented in other countries may provide useful clues when thinking about the issues faced in your own country. Anyone would want to avoid reviewing if it was seen as nothing more than “criticism” from outside. However, if reviewing is seen as “information”, “advice” or “diagnosis”, then it can be utilized effectively. The ruling of the Supreme Court that Japan’s discriminatory laws are unconstitutional can be seen as a natural conclusion to the process of this long dialogue.
Could this long process have been sped up in any way? As pointed out by the Supreme Court, a recommendation from the United Nations Human Rights Committee had already been received as early as 1993. In fact there are already useful systems available. For example, there are methods that allow individuals to communicate human rights issues directly to international organizations (not yet ratified by Japan) and the establishment of national human rights institutions under the UN Paris Principles (not yet implemented in Japan). These methods offer a more effective way of combining international systems with national systems. The challenge faced in the integration of systems in Japan lies in the lack of a multi-layered system for rapidly utilizing opinions on human rights both within Japan and overseas.