Koshi Yamazaki
Professor Emeritus, Kanagawa University

Introduction

In August 2022, Japan’s state party report on the domestic implementation of the Convention on the Rights of Persons with Disabilities (hereinafter referred to as the “Convention”) was reviewed by the United Nations Committee on the Rights of Persons with Disabilities at the United Nations Geneva office in Switzerland, and the concluding observations were reported in October 2022. I would like to discuss the significance of this review, its concluding observations, and the challenges we face in the domestic implementation of the Convention.

1. Convention on the Rights of Persons with Disabilities - Legal Obligations of the States Parties and Mechanisms to Enforce the Convention

The Convention was adopted at the 61st session of the United Nations General Assembly in 2006 and took effect in 2008. As of the end of November 2022, there are 185 States Parties (the Convention countries). Persons with disabilities and organizations of persons with disabilities around the world actively participated in the drafting process of the Convention and contributed greatly to the establishment of the Convention. Japan ratified the Convention in 2014 and it took effect in Japan in the same year.

Legal Obligations of the States Parties

The major legal obligations of States Parties are:
(1) To realize fully the human rights of persons with disabilities without discrimination based on disability through appropriate legislative and administrative measures (Article 4, Paragraph 1 (a));
(2) To actively involve persons with disabilities in the development and implementation of legislation and policies to implement the Convention (Article 4, Paragraph 3);
(3) To prohibit discrimination based on disability and to provide reasonable accommodation to eliminate discrimination against persons with disabilities (Article 5);
(4) To take effective and appropriate measures to ensure the full inclusion and participation of persons with disabilities in the community (Article 19);
(5)To recognize the right of persons with disabilities to education and to ensure an inclusive education system and lifelong learning at all levels (Article 24);
(6)To recognize the right of persons with disabilities to work (Article 27);
(7) To guarantee the political rights of persons with disabilities (Article 29);
(8) To recognize the importance of international cooperation, and to undertake appropriate and effective measures between and among States, and in partnership with international and regional organizations and civil society (in particular organizations of persons with disabilities) (Article 32).

Mechanisms to Ensure That States Parties Observe the Convention

The Convention has mechanisms for international and domestic implementation to ensure that States Parties comply with their legal obligations under the Convention. The latter is unique to this Convention, not found in other human rights conventions.

(1) International Implementation Mechanism

The Convention establishes the Committee on the Rights of Persons with Disabilities (hereinafter referred to as the “Committee”) to monitor internationally the compliance of the States Parties with their Convention obligations. The Committee consists of 18 members of independent experts who are individually elected. Individual members are never directed or ordered by their countries of nationality. The Committee monitors the domestic implementation of the Convention by the States Parties through (1) the state party reporting system (this review is the operation of this system), (2) the individual complaints mechanism, and (3) the survey system. For more information, please refer to my article, “Convention on the Rights of Persons with Disabilities: Focusing on Mechanisms to Make the States Parties Observe the Convention” in “Normalization” Vol. 34, No. 1 (2014).

(2)Mechanism of Domestic Implementation

States Parties are urged to take into account the UN Paris Principles Relating to the Status of National Human Rights Institutions (human rights institutions created by states independent of governments) in their domestic implementation of the Convention. It also expressly stipulates that civil society, in particular, persons with disabilities and organizations of persons with disabilities, shall be involved and participate fully in the monitoring process (Article 33, Paragraph 3).

2.Development of Legislation Concerning Persons with Disabilities

Since around 2014, when Japan became a state party to the Convention, Japan’s legislation on persons with disabilities has undergone major developments. The concluding observations of the Committee on the review of Japan’s state party report positively evaluated 17 items relative to the progress of the legislation and measures concerning persons with disabilities. The major ones are:
(1) Enactment to Eliminate Discrimination against Persons with Disabilities (2013) and its revision in 2021 (obliging private businesses to provide reasonable accommodation)
(2) The revision of the Act to Facilitate the Employment of Persons with Disabilities(Extending the statutory obligation to employ persons with disabilities to include persons with mental disabilities and making it obligatory to ensure reasonable accommodation)
(3) Ratification of the Marrakesh Treaty to promote the use of copyrighted works by the visually impaired (2018)
(4) Enactment to Promote the Improvement of Reading Environments for Visually Impaired Persons, etc. (Reading Barrier Free Act) (2019)
(5) Enactment to Facilitate the Use of Telephones for Persons with Hearing Impairments, etc. (Telephone Relay Service Act) (2020)

3. Review Process of State Party Report

State party reports on human rights conventions are generally prepared and reviewed through the following processes.
[Process 1]Preparation/submission of state party report: Submitted by the central government of the state party. During the preparation stage,
the government may discuss the contents of the report with domestic NGOs. Aside from the state party reports, NGOs often submit parallel reports to the Committee. Parallel reports contain facts and information not covered by state party reports and are useful sources of information for the Committee.

[Process 2]
Creation of the List of Issues: In order to organize the points relative to the state party report, the Committee sends a list of issues to the States Parties and ask them to reply before the review. NGOs often approach the Committee members regarding the contents of the List of Issues (hence, lobbying is important).

[Process 3]
Review of state party reports: Conducting constructive dialogue between the independent members of the Committee and States Parties on the contents of state party reports, and encouraging the States Parties to better implement conventions on human rights domestically. In this constructive dialogue, national human rights institutions may speak from a standpoint different from the central government. The Committee appoints several members to be state rapporteurs. Prior to the review, NGOs often approach Committee members and explain issues they would like to discuss (hence, lobbying is important).

[Process 4]
Announcement of concluding observations: The Committee publishes the results of the review of the state party report as concluding observations.

[Process 5]
Follow-up: The Committee requests the State Party to explain the measures it has taken regarding the concluding observations in its next state party report. Concerns and recommendations raised in the concluding observations may have an impact on the human rights policies and measures of States Parties, and may lead to the revision and development of human rights legislation and improvements in administrative practices.

In 2016, the Japan Disability Forum (JDF) and the Japan Federation of Bar Associations (JFBA) submitted nine parallel reports in the review of Japan’s first state party report. In 2019, a country briefing was also held in which the Committee members and NGOs conducted questions and answers, and then the Committee announced the final version of the list of issues.

In response to this, the above organizations submitted parallel reports for concluding observations. Subsequently, in 2021, JDF and JFBA exchanged views with the government on draft responses to the list of issues, and the government submitted to the Committee the responses to the list of issues in 2022. For two days in August 2022, just before the constructive dialogue, eight organizations including JDF and JFBA, and the Commission on Policy for Persons with Disabilities had the opportunity to give a private briefing to the Committee. About the same time, JDF and JFBA met with the state rapporteurs and explained to them about the points for constructive dialogue.

In this way, prior to the constructive dialogue between the Committee and the Japanese government, the Committee, the Japanese government, and NGOs had a significant exchange of views in [Process 1] and [Process 2].

4. Review of Japan’s State Party Report and Concluding Observations

Constructive Dialogue
On August 22 and 23, 2022, a constructive dialogue (review of the state party report) was held between the Committee and the Government of Japan. 31 members of the Japanese government delegation from seven ministries, including the Ministry of Foreign Affairs and the Cabinet Office, and more than 100 people from civil society attended. This corresponds to above-mentioned [Process 3].

During the review, the state rapporteurs and other committee members asked apt questions based on the information obtained through parallel reports, private briefings and lobbying activities, and the government delegation responded in order. According to Professor Osamu Nagase of Ritsumeikan University, as symbolized by the composition of the delegation headed by the Counselor of the Ministry of Foreign Affairs, the presence of the Cabinet Office, which has jurisdiction over the Basic Act for Persons with Disabilities, was weak, and the perspective of general and comprehensive policies for persons with disabilities was lacking. However, at the beginning of the second day, the representative of the government touched on the Tsukui-Yamayuri-en incident and the concept of eugenics, and quoted the chief cabinet secretary’s remarks regarding the former Eugenic Protection Act, saying, “The government deeply reflects and sincerely apologizes.” The remarks he made were exceptionally constructive dialogue.

In addition, Jun Ishikawa, Chairperson of the Commission on Policy for Persons with Disabilities, based on the original “Opinion of the Commission on Policy for Persons with Disabilities” submitted by the Commission, made a keen statement, focusing on (1) restrictions on legal capacity (Article 12), (2) mental health (Article 14), and (3) inclusive education (Article 24). The statement by the head of the Commission designated by the Japanese government as an independent monitoring framework for the Convention showed its presence.

Contents of Concluding Observations
After constructive dialogue between the Committee and the Government of Japan ([Process 3]), the Committee adopted its concluding observations on September 2, 2022, and announced the final version on October 7, 2022.

I introduced “Ⅱ. The Outline of the Positive Aspects” in the above “2. Development of Legislation on Persons with Disabilities,” so here I will introduce “III. Major Concerns and Recommendations” and “IV. Outline of Follow-up”.

(1) Major Concerns and Recommendations
Stated according to each article of the Convention. It covers 17 pages, but I will describe only the outline of the main points.
[General Principles and Obligations (Articles 1-4)]
* Revision of legislation to eliminate elements of the medical model of disability
* Review of the Tsukui Yamayuri-en incident and clarifying legal responsibility for promoting such ideas to combat the concept of eugenics and discriminatory attitude against persons with disabilities.
[Right to Life (Article 10)]
* Explicit acknowledgment of the right to life of persons with disabilities and securing necessary protective measures regarding treatment, including palliative care
* Preventing involuntary hospitalization and treatment and ensuring that persons with disabilities have the support they need in community services
* Conducting thorough and independent investigations into the causes of deaths in psychiatric hospitals
[Recognition of equality before the law (Article 12)]
* Revision of the Civil Code with a view to abolishing alternative decision-making systems
* Establishment of supported decision-making system
[Liberty and Security of Person (Article 14)]
* Abolition of legal provisions allowing deprivation of liberty by involuntary hospitalization of persons with disabilities
* Abolish legal provisions justifying non-consensual psychiatric treatment and establish monitoring bodies to end coercive treatment
*Ensuring safeguards to protect the right of voluntary informed consent of all persons with disabilities
[Living independently and being included in the community (Article 19)]
* Review of all cases of persons with disabilities in psychiatric hospitals to prevent indefinite hospitalizations
* Ensuring that persons with disabilities are not obliged to live in a particular way, including in group homes, and rather have the opportunity to choose where they live and with whom they live.
[Education (Article 24)]
* Recognizing the right of children with disabilities to inclusive education and adopting a national action plan for inclusive education to end segregated special education.
* Establishing a system where ordinary schools cannot refuse admission to children with disabilities, and withdrawing notifications from the Ministry of Education, Culture, Sports, Science and Technology regarding special support classes.
* Ensuring reasonable accommodation for children with disabilities
* Conducting training for regular education teachers and non-teacher educators on inclusive education
* Ensuring the use of supplementary/alternative communication modes/methods in regular education settings, promoting deaf culture in inclusive educational settings, and providing access to inclusive education for deafblind children.
* Developing national comprehensive policies to address barriers to students with disabilities in higher education
[Domestic implementation and monitoring of the Convention (Article 33)]
* Establishing a National Human Rights Institution (independent of government) fully compliant with the Paris Principles and strengthening the Commission on Policy for Persons with Disabilities within the framework of that institution

(2) Follow-up
* An urgent response to the recommendations on living independently and being included in the community (Article 19)] and inclusive education (Article 24) was called for.
* By February 20, 2028, the second, third and fourth regular reports were requested to be submitted together, containing information on the implementation of the recommendations made in the concluding observations.

Concluding Observations — Future Issues
The Committee on the Rights of Persons with Disabilities’ review of Japan’s first state party report produced substantive concluding observations due to the thorough and enthusiastic preparation and participation of civil society organizations in [Process 1] through [Process 4]. The concluding observations contain, so to speak, “world knowledge” for creating a society in which all people, regardless of whether they have disabilities or not, can live comfortably. These are “global cheers” for Japan, not external pressure on domestic issues.However, it cannot be said that the Japanese government has always taken seriously the concluding observations regarding the domestic implementation of the International Covenant on Civil and Political Rights, the Covenant on Social Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. The Japanese government, which has declared democracy as the rule of law and respect for human rights as its basic national policies both at home and abroad, is now approaching the time to take seriously the recommendations presented in the concluding observations and to work on reforming its legal system and policies. Civil society will use “world knowledge” indicated in the concluding observations to actively develop activities to encourage the Japanese government. I would like to introduce some points as my conclusion.

The first is to publicize the concluding observations through media such as newspapers, television and radio, and SNS. The second is to request the ruling and opposition parties to promote policies for persons with disabilities while referring to “world knowledge.” The third is to request that the government, the judiciary (including judges) and all local governments publicize the contents of the concluding observations and refer to and utilize them in their work. The concluding observations hold various possibilities for creating a society in which personality and individuality are respected regardless of whether or not they have a disability.