Osamu　Nagase
Special Guest Research Professor
Institute of Ars Vivendi, Ritsumeikan University

1.Introduction

The first review of the status of the implementation of the Convention on the Rights of Persons with Disabilities in Japan is approaching.  The first review was initially scheduled in August 2020, but was postponed due to the effects of the coronavirus pandemic (hereinafter referred to as “COVID-19”).  The Committee on the Rights of Persons with Disabilities (hereinafter referred to as the “Committee”) is tentatively planning a review for Japan this summer, but at the time of this writing (May 10, 2021), it has not yet been fixed and remains undecided.  It may be postponed again to 2022.

In addition to the basic self-review as a State Party, an international review by the Committee consisting of experts from around the world will provide a good opportunity to reconfirm how well the rights of persons with disabilities have been secured in Japan.  It is good to use this opportunity to review the overall situation of the human rights of persons with disabilities, which is a component of universal human rights, and to further promote their rights.

Information from civil society called parallel reports plays a major role in the review.  “Nothing About Us Without Us,” which was often mentioned when negotiating on the Convention on the Rights of Persons with Disabilities, came to fruition in the Convention itself.  Article 33 on “National implementation and monitoring” prescribes, “in particular persons with disabilities and their representative organizations shall be involved and participate fully in the monitoring process.”

2.Reports by States Parties and Grounds for Review

The nations that have ratified the Convention on the Rights of Persons with Disabilities are obliged to report on the status of the implementation of the Convention.  It is stipulated as the “Reports by States Parties” (Article 35), which states, “Each State Party shall submit to the Committee, through the Secretary-General of the United Nations, a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard, within two years after the entry into force of the present Convention for the State Party concerned” (underline by the author).  What is required of the report is the information on what the States Parties have done to implement the Convention and what effect they have had.

The review of submitted reports will be conducted by the Committee under Article 36 entitled “Consideration of Reports.”  This Committee is held in Geneva, Switzerland, where the Office of the United Nations High Commissioner for Human Rights, which is the secretariat of the Convention on the Rights of Persons with Disabilities, is located.  This Committee has been established based on the Convention (Article 34) and consists of 18 experts of the fields covered by the Convention.  The Committee members are elected annually at the Conference of the States Parties to the Convention on the Rights of Persons with Disabilities held at the United Nations Headquarters.  Many of you may know that Jun Ishikawa (Professor, University of Shizuoka) was elected from Japan as a part-time and unpaid member from 2017 to 2020, and was active as a Vice-Chair in the latter half of the period.  The overwhelming majority are experts with disabilities like Ishikawa.

3.Review Process

From here, let us take a step-by-step look at Japan’s review of the Convention on the Rights of Persons with Disabilities.  Please also refer to the table at the end this article, “First Review Timeline of Japan’s Convention on the Rights of Persons with Disabilities.”

A.Submission of Reports by States Parties

The starting point of the review is the submission of reports by the States Parties to the Committee.Japan submitted its report in June 2016.Unfortunately, the content is practically a list of laws and measures.It is posted on the Ministry of Foreign Affairs’ website and can be viewed in Japanese.

As a general concern for the implementation of the Convention, there is a serious problem that about 30% of the States Parties have not submitted their reports.

B.Preparation Process of List of Issues and Parallel Report

Upon receiving the report, the Committee prepares a list of questions called a “list of issues” and sends it to the States Parties.In preparing the list of issues, the Committee places importance on the information in the parallel report.

In the fall of 2017, at the request of the Government of the Republic of China (a non-member of the United Nations) which governs Taiwan, I had the opportunity to participate in the review of the Convention on the Rights of Persons with Disabilities (refer to Note below), which their government independently ratified outside the United Nations system.  The parallel report was indispensable in preparing the list of issues and concluding observations.

For Japan’s list of issues, a total of nine parallel reports were submitted, including the comprehensive parallel reports prepared by the Japan Disability Forum (JDF) and the Japan Federation of Bar Associations (JFBA).

In addition, the civil society has the opportunity to give a verbal briefing based on the parallel report to the Committee that adopts the list of issues at the pre-session working group of the Committee.Japanese civil society, including the JDF and the JFBA, sent more than 40 members to the working group held in Geneva in September 2019, just before the impact of the COVID-19 pandemic began, and thoroughly conducted briefings and lobbying before the Committee.I also participated as a member of the JDF.In retrospect, it was a very fortunate opportunity considering that the Committee has not held face-to-face meetings since that time.

C.Outline of the List of Issues

Japan’s list of issues is 7 pages long and consists of 69 questions.It is on Article 11 on the “Situations of risk and humanitarian emergencies” and Article 21 on the “Freedom of expression and opinion, and access to information” that the Committee showed high interest with many questions.  Five (5) questions were asked the most of Article 11, including those on the effects of the Great East Japan Earthquake and the disaster at the nuclear power plant in Fukushima.  As for Article 21, four (4) questions were raised regarding Japanese sign language and information accessibility.

It is noteworthy that Article 15 on “Freedom from torture or cruel, inhuman or degrading treatment or punishment” includes questions on the statute of limitations on the Eugenics Protection Law proceedings.  This is an outcome of the JDF briefing.

Here are two specific questions in the list of issues.One is “Living independently and being included in the community” (Article 19) which is significant for Japan where about 500,000 people with disabilities are in hospitals and facilities.  The list is asking the government for information on “the current situation of persons with disabilities who are still in the facilities and those who have left the facilities and their present situation, especially the number of those categorized by their gender, age, place of residence, and availability of support.”  As for the education (Article 24) of those with multiple challenges, the following information is sought -- “legislative and policy measures, the allocation of human, technical and financial resources for the transition from separate school education to inclusive education for all persons with disabilities, including children who are deaf or deaf-blind, as well as children with intellectual or mental disabilities.”

D.States Parties’ Replies to List of Issues and Parallel Reports

Based on the replies from the States Parties to the list of issues (not submitted at this time of writing) and the second parallel report for the concluding observations (submitted by the JFBA and the JDF at this time of writing), the Committee starts drafting the concluding observations which are the basis for the Committee’s recommendations.Usually, the issues taken up in the list of issues are the key points of the recommendations.

The Committee members who play a central role in the drafting work are called country rapporteurs.  Currently, there are two country rapporteurs for Japan: Kim Mi Yeon (Korean disability movement activist/Committee Vice-Chair) and Jonas Ruškus (Lithuanian university professor/Committee Vice-Chair).  In other Committees, the drafting of the list of issues and concluding observations is usually done by the staff of the Office of the United Nations High Commissioner for Human Rights.  However, the practice of drafting on the Rights of Persons with Disabilities is done only by the Committee members themselves.

E.Constructive Dialogue and Concluding Observations

After a series of questions and answers, called a “constructive dialogue,” between the States Parties and the Committee, the Committee adopts the concluding observations or the recommendations.A six-hour long constructive dialogue involves oral questions from the Committee members and answers from the government.Prior to this constructive dialogue, the draft of concluding observations has already been prepared.After the constructive dialogue, the concluding observations are finally adopted.

The Committee’s review, which had been suspended since the COVID-19 pandemic began, resumed online in March 2021.  In the concluding observations issued in April 2021 for Estonia in Northern Europe, which was the first online review, the priority items were: (1) Transition to assisted decision-making for persons under the guardianship system (Article 12: Equal recognition before the law) and (2) Suspension of acceptance of children/persons with disabilities into facilities (Article 19: Living independently and being included in the community).  In addition, for the first time as a concluding observation, a recommendation regarding COVID-19 was presented. 　In Article 11 “Situations of risk and humanitarian emergencies,” four recommendations were presented, including vaccination for all, emergency evacuation, and the inclusion of organizations of persons with disabilities in measures against COVID-19.  (As of this writing, the death toll among Estonians due to COVID-19 exceeds 1,100 out of 1.33 million people, more than 10 times that of the Japanese in the population ratio.)

4.Challenges in National Implementation and Monitoring:

Policy Committee for Persons with Disabilities and National Human Rights Organizations

Along with the parallel reports from civil society, the “independent monitoring framework” stipulated in Article 33 on national implementation and monitoring plays a very important role in the review process.  As for the provision on national monitoring mechanisms, the Convention on the Rights of Persons with Disabilities is the first human rights convention to provide for such.  (As for the additional optional protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment already has a provision for national monitoring mechanisms.)  In addition to the international monitoring by the Committee, the emphasis on national monitoring is described as “another paradigm shift” in the Convention, along with the shift from a medical model to a social model (1: Page 85).

In Japan, the Commission on Policy for Persons with Disabilities in the Cabinet Office (hereinafter referred to as the Policy Commission) has been designated by the government as the monitoring body.  The Policy Commission, which also includes representatives of organizations of persons with disabilities, has already incorporated its findings into Japan’s report.  It summarized the monitoring of the implementation status under the Third Basic Program for Persons with Disabilities as a “summary of discussion” in an annex to the government’s report.  The Policy Commission is expected to step up these efforts and express its own views towards constructive dialogue.

The Committee on the Rights of Persons with Disabilities places great importance on the information from independent monitoring frameworks such as the Policy Commission, in addition to (1) the reports from States Parties and (2) the information from civil society (parallel reports).  In most cases, since it is the national human rights institutions that are responsible for this independent monitoring framework, the item on “Information from national human rights institutions” is provided alongside (1) and (2) in its website.

A major general issue in securing human rights in Japan, including those of persons with disabilities, is the lack of a national human rights institution.  A national human rights institution is an independent institution that serves to protect human rights.  It has been established in more than 100 countries around the world.  However, in Japan, although the Cabinet of Junichiro Koizumi and the Cabinet of Yoshihiko Noda submitted bills to the Diet in 2002 and 2012 respectively, none of them have been passed, and so there is no national human rights institution.  The establishment of a national human rights institution is an important initiative to secure human rights in Japan.

When a national human rights institution is established, it may be necessary to coordinate the roles of the national human rights institution with an “independent monitoring framework” specialized for persons with disabilities, such as the Policy Commission.  In that case, it is essential to secure and expand the participation of organizations of persons with disabilities.

5.Conclusion: Significance of the First Review

The “continuous self-review process” by the States Parties is the key to the implementation of the Convention, said Gerard Quinn, Professor Emeritus of the National University of Ireland, UN Special Rapporteur on the Rights of Persons with Disabilities (2 : Page 74).

It is important that international monitoring by the Committee on the Rights of Persons with Disabilities supplements monitoring of national implementation.  The first review is a valuable opportunity where the challenges of the State Parties’ policies for persons with disabilities are revealed for the first time by international experts.  Furthermore, depending on the discussions on the reforms of the review of human rights conventions, including the Convention on the Rights of Persons with Disabilities, which are underway at the UN General Assembly, it may take longer to carry out the second and subsequent reviews.  Civil society, including organizations of persons with disabilities, has a major role to play in this historic first review of Japan.

(Titles omitted)

Postscript:

During the proofreading of this article, it was confirmed that there will be no review of Japan this summer, as the Committee on the Rights of Persons with Disabilities announced that there would only be two countries to be reviewed during the 25th session from August to September 2021, namely Djibouti and France.

Note:

On August 1, 2014, the Legislative Yuan, which is the parliament of the Republic of China, passed the Enforcement Act of the Convention on the Rights of Persons with Disabilities.  The Enforcement Act, which stipulates that the Convention has the effect of a domestic law, was promulgated by the President on August 20 and came into effect on December 3, 2014.

[Reference]

1. Beco, G. D., 2011, “Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities: Another Role for National Human Rights Institutions?”  Netherlands Quarterly of Human Rights, Vol. 29/1, 84–106.
2. Osamu Nagase, 2018, “Committee on the Rights of Persons with Disabilities -- Reporting System”
   Osamu Nagase and Satoshi Kawashima, 2018, “Implementation of the Convention on the Rights of Persons with Disabilities,” Shinzansha Publisher Co., Ltd., 47-78.”

* This paper was supported by JSPS Grant-in-Aid for Scientific Research (18K01981): “Implementation of the Convention on the Rights of Persons with Disabilities and Civil Society in East Asia.”

Table:  First Review Timeline of Japan’s Convention on the Rights of Persons with Disabilities