The right to complain about human rights abuses

Many Brits bemoan the loss of sovereignty of their government to European institutions. This is a hot topic in the media at the moment since the House of Commons voted overwhelmingly by 212 votes to reject a European Court of Human Rights (ECHR) demand that Britain give prisoners the vote. By deciding not to follow the European court’s instructions, the British government will be acting illegally.

I have not written this article to discuss whether the commons decision was right or wrong. I simply wish to contrast the current state of play in Britain with that in Japan in respect of an individual’s right to complain of human rights abuses. In doing so, I hope it will become clear why Britain is a far more democratic country thanks to the presence and power of the European courts.

For me, the crucial point of this debate which many people seem to forget, is the fact that John Hirst, a prisoner serving a life sentence for manslaughter, was able to take the country to court for abusing his human rights – he argued the UK’s blanket ban on prisoner voting was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights, which guarantees ‘free elections…which will ensure the free expression of the opinion of the people…’

Anyway, regardless of what John Hirst was claiming, I wish to concentrate on the fact that he was able to have his case against the state heard by an international body. This would certainly not have been possible in Japan.

A summary of the situation in Japan is given in a recent blog article by Kazuo Hizumi, a famous lawyer/journalist.

[translated from original Japanese] In Japan it is still the case that criminal investigation procedures are not transparent and severe restrictions remain on the freedom of electioneering. In addition, the inequality in respect of female pay is simply atrocious. Why, in what is ostensibly a democratic state, should the human rights of citizens be so inadequately protected? One way of breaking out of this malaise would be to introduce an ‘Individual Complaints System’.

Hizumi sensei is referring to the fact that although Japan is signatory to multiple international human rights treaties, because the treaties are not part of Japan’s domestic law, Japanese citizens cannot use one of these treaties to bring a case against their government. Some of the treaties have an optional mechanism which states can opt into, allowing individuals to make specific complaints to the relevant international committees that their rights have been violated. However, Japan has not taken this option on any of them. Interestingly, the UK government has chosen only to allow individual complaints in respect of the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, but most importantly is answerable to European Court of Human Rights in relation to individual complaints arising out the European Convention of Human Rights.

This has become such a hot topic in Japan that even Nichibenren, the Japanese solicitor’s regulatory body (equivalent of our Law Society) has arranged a discussion between its members on 25 February to put pressure on the Japanese government to allow citizens to enforce the rights arising from these treaties. I have translated the invitation to this discussion below:

[translated from original Japanese] It has been just over one year since the birth of this administration, an administration which had pronounced in its manifesto that it would bring in an Individual Complaints System….

The Individual Complaints System is a system whereby individuals who have exhausted all avenues for obtaining a remedy for human rights abuses under a (human rights) treaty in the national courts, a means of demanding a remedy from whichever international body is specified in that treaty.

An Individual Complaints System is contained within the International Convention on Social, Economic and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment among others. However, by not opting to implement an Individual Complaints System in respect of any of these treaties, out of all 30 OECD (Organization for Economic Co-operation and Development) member states and all G8 member states, Japan is the only state not to have any kind of Individual Complaints System in place.

The Japanese government and courts have continued to take an extremely negative approach towards both the implementation and cases involving each of these human rights treaties. As a result, the implementation within Japan of each treaty remains at an extremely unsatisfactory level. This situation is inconsistent with both pillars of Japan’s foreign policy, ‘Value-oriented diplomacy and Human Rights Diplomacy’, and is not befitting of a member-state of the United Nations Human Rights Council .

The creation of a national human rights body and the implementation of an Individual Complaints System in Japan would be extremely effective for the improvement of the country’s human rights situation. Furthermore, the UN Human Rights Council along with other UN bodies are demanding that Japan introduce an Individual Complaints System.

It follows that John Hirst’s case would have probably been given short shrift in the Japanese courts, and without a procedure in place to appeal to an international body, the matter would have ended there. Regardless of the particular merits of his case, our country is a more democratic place thanks to the structures we have in place which gave him that opportunity.