International Human Rights Standards and Minorities
by Prof. Kim Dong-hoon
(The article below was presented at the second International Consultation on Minority Issues and Mission Strategies, October 1994, Kyoto, Japan.)
I. The Current State of Minority Problems
It is possible that a nuclear war between nuclear giants can be avoided for the time being as a result of the disintegration of the Soviet Union and the consequent end of the Cold War. However, there are now a series of ethnic conflicts arising around the globe, most notably in the former Soviet Union and Yugoslavia, where ethnicity and religion have combined to produce complex dynamics; and in Western Europe, racism in the form of neo-Nazism and xenophobia have given rise to a series of attacks on foreign laborers and ethnic minorities. In Japan too, acts of violence against minorities have been repeated, for example, the case of a Korean student whose chima-chogori (the national dress) was torn to tatters by a Japanese attacker - an event triggered by recent tensions over north Korea.
Even before the world has seen the end of ideological conflicts, rooted in the notion that communism or liberalism is an absolute wrong, incidents of racist and xenophobic violence against minorities have been increasing. This is the current state of minority problems. This trend represents a direct challenge to the post-World War II efforts of the international community, particularly through the United Nations, to establish universal respect for the principles of non-discriminatory equality, human rights and the basic freedoms of all people. It threatens the very dream of achieving world peace based on human rights and democracy.
In other words, there is no exaggeration in saying that without achieving respect for the basic rights of minorities there can be no world peace based on principles of justice, let alone non-discriminatory human rights or freedom for the individual.
Furthermore, there are many non-traditional minority groups - former colonial rulers and subjects who moved and settled in foreign lands as a result of colonialism or many former residents of developing nations who moved and settled to play a part in the rapid economic growth of developed nations - who are challenging the notion of the "national community" which allows full rights only to those with national citizenship. There are a growing number of voices demanding the acceptance of resident foreigners as members of a "residents' community" to which rights would be granted, including the right to vote, to participate in society. Minorities are, thus, questioning traditional concepts of statehood.
II. The Protection of Minorities by Humanitarian Intervention and International Treaties
Since the religious Reformation, intervention for the protection of religious minorities, primarily Christians, has been common in Europe. Although the principle of "non-intervention in the internal affairs" of other countries has been observed in international law, the Christian Church has defended the right of Christians to worship freely in non-Christian countries on the basis that the freedom of belief must be recognized in the name of "humanity." In many cases, this "humanity" argument for the protection of minorities has been abused by powerful nations to justify their intervention in the political affairs of weaker nations. This is one historical reason why, when faced with Western pressures to improve human rights records in the name of "humanity" and "human rights," many of today's developing nations resist on the basis that foreign nations and the international community are interfering and intervening in their domestic affairs.
Next, parallel to the emergence of "humanitarian intervention," several treaties, including the Westphalia Treaty of 1648 signed at the conclusion of the Thirty Years War, formalized the principle of freedom of religion; and in 1815, the Final Act of the Vienna Conference contained clauses to protect ethnic minorities in addition to religious minorities. Furthermore, the Paris Treaty of 1856 established that the Christian residents of Turkey shall receive equal treatment. The Berlin Treaty in 1878 also contained the basic principle of non-discrimination on the basis of religion. Thus, we can see that the advancement of minority rights in 19th century Europe was largely achieved in reference to the Balkan Peninsula and Eastern Europe under force of the era's most powerful West European states, most notably England, France and Germany. At the same time, some states, like Austria, Switzerland and Belgium, codified the protection of language and the ethnic rights of minorities in their constitutions.
In any case, the advances of minority rights in l9th century Europe were accomplished, not by international laws or organizations, but by coercion in accordance with the operating principles of power politics.
III. The League of Nations and the Protection of Minorities
The issue of minority rights was discussed as one of the important issues during the Versailles Conference, the venue in which the world's major nations gathered to lay plans for the establishment of the League of Nations to maintain international peace following World War I.
Although several recommendations were discussed as possible texts to codify the protection of minority rights in the League of Nations Covenant, these efforts were unsuccessful. The suggestion met with resistance from several parties on the basis that they would be duty-bound to protect minority rights in their own territory. However, 18 states, primarily in the Balkan Peninsula and Eastern Europe who benefited from the outcome of the war (some who gained formal independence, as in the case of the three Baltic states, and some who gained new territories), promised to protect the rights of minorities within their territories in a series of peace treaties, bilateral pacts and unilateral declarations.
These promises were no longer confined to the rights of ethnicity, culture, language and religion but extended more broadly to the rights of citizenship and education. Subsequently, the League of Nations took upon itself the role of ensuring that these promises were observed by these nations. We can say that by doing this the League of Nations established a historic precedent where an international body became involved in the guarantee of minority rights in independent nations.
However, the League of Nations cannot escape the criticism that under its authority the duty to protect minorities was placed upon only some European states. The system was itself discriminatory and inequitable. Naturally, those countries which reluctantly accepted these responsibilities under pressure from the powerful nations protested against this discrimination and called for the establishment of universal and equitable duties. The League's powerful states steadfastly refused to accept international obligations to protect minorities that they demanded of other countries, thus, resulting in the failure of efforts to universalize such protections. Then, with the rise of fascism in Japan, Germany and Italy, the League of Nations lost all effectiveness, including its ability to protect minorities.
IV. The International Bill of Rights and Minority Rights
A. The United Nations Charter and Minority Rights
As you are all aware, the functions of the United Nations are, on one hand, to maintain peace and security in the international community and, on the other hand, to promote respect and protection for the basic rights and freedoms of all people. While it works to resolve human rights problems that arise in individual countries, the United Nations also strives to establish common or minimum international standards of human rights which should be respected and achieved, not only by every State, but by every individual person.
However, although the United Nations Charter calls on the international community to achieve "respect for the human rights and basic freedoms of all people, irrespective of their race, sex, language or religion," there is no passage which refers specifically to minorities. In addition, while there were suggestions and discussions on this subject during the preparation of the World Declaration of Human Rights (December 1948), minority rights again failed to gain explicit protection in this document. The Subcommission on the Prevention of Discrimination and Protection of Minorities was established though under the United Nations Commission on Human Rights to study the broad issues of minority problems. Since then, the subcommission has played a central role in protecting the rights of minorities and in establishing the standards found in such documents as the International Covenant on Human Rights and the Declaration of Minority Rights.
B. The International Covenant on Human Rights and Minority Rights
The International Bill of Rights is a term which refers to the World Declaration of Human Rights and the International Covenant on Human Rights. Since the issue of minority rights was not raised in the text of the World Declaration of Human Rights, there were high hopes that the subject would be incorporated into the International Covenant on Human Rights.
However, the suggestion to include the rights of minority groups in an international covenant whose primary purpose was to guarantee the rights of individuals met with resistance, particularly from countries with significant minority problems. Finally, after significant debate over its very inclusion in the covenant as well as the contents of such a clause, the rights of minorities were included in the text of the International Covenant on Civil and Political Rights (ICCPR), otherwise referred to as the "B Covenant," under Article 27. The article reads:
The language of Article 27 is passive in that it only stipulates that the rights of minorities who are of a different ethnicity than the majority group in a given country and who possess a different faith or language shall not be denied the right to maintain their culture, practice their religion or speak their language: it does not oblige signatory states to take any legal or otherwise positive steps to guarantee such rights. Furthermore, it was widely lamented at the time that the effectiveness of the covenant was sorely diminished in the face of states which refuse to even acknowledge the existence of minority groups within their borders, such as Japan and France.
However, the establishment of the Human Rights Committee to ensure implementation of the International Covenant on Human Rights is certain to have effect on even these states; for through the committee's process of evaluating national reports submitted from signatory states and by questioning and clarifying information with representatives of these states, it is possible that they will eventually come to acknowledge the existence of minorities, for example, the indigenous Ainu people of Japan.
Because the language of Article 27 only stipulates that minority rights "shall not be denied," many states have taken the view that it is enough to simply not have legal impediments and that there is no obligation for them to take measures to ensure that minorities can exercise those rights. Consequently, it has been difficult to achieve the guaranteed right to demand positive or special measures that are necessary for a minority to regain the culture and language which were lost as a result of long-practiced assimilation policies and the denial of ethnic education rights.
In spite of the covenant's limitations, however, it has proved to be an effective vehicle for the protection of minority rights in some situations. For example, it was useful in the case of a native Canadian woman who initiated a legal claim against the Canadian government for rescinding her rights as a native person when she married a Caucasian man on the basis, not only that this was sexual discrimination, but that it contravened Article 27 of the B Covenant. The woman's claim was accepted by the Human Rights Committee; and as a result, the Canadian government took steps to reform its laws.
In assessing Article 27, it is also important to note that the Human Rights Committee has clearly stated its judgment that foreigners, particularly permanently resident foreigners, like Koreans in Japan, are among the minority groups whose rights are meant to be protected by the covenant. Because European minorities - the historical objects of international rights protection - were citizens of the same State as the majority and were differentiated by religion, ethnicity and language, it was commonly thought that such protection did not apply to citizens of another State. However, in today's international society, there is a growing number of situations in which foreign citizens - former colonial subjects, refugees and migrant workers - are settling in foreign countries and establishing minority communities. As a result, the protection of minority rights is becoming an ever more significant issue.
Perhaps it is only natural, given the realities of today's international society, that the Human Rights Committee clarified in its "general comments" of 1994 that application of the rights noted in Article 27 shall not be restricted only to residents who are citizens of the signatory state and, furthermore, that foreigners need not be permanent residents to receive the covenant's protection. In spite of the denials of the Japanese government, it appears clear that foreign residents in Japan, particularly Koreans, are included among the minorities whose rights the International Covenant on Human Rights is trying to protect. This general opinion also holds that the rights guaranteed in Article 27 require that signatory states take positive measures to protect minorities' rights to maintain and develop their own culture and language and to practice their religion: the rights of minority groups are not protected by simply "not denying" their rights. This is an important view for minority groups whose rights have historically been denied, like the Ainu and Koreans in Japan. These opinions of the Human Rights Committee, in concert with Article 28 of the Treaty for Children's Rights in which states are called upon to make it a purpose of education to allow one's identity to interact with the identities of others - in other words, to offer multicultural education - are certain to encourage and give strength to those in Japan who seek correction of a system which fails to guarantee their right to ethnic education.
V. The Declaration of Minority Rights
On Dec. 18, 1992, the U.N. General Assembly adopted the Declaration of Minority Rights. Because the declaration is not a treaty, it does not have the same legal force as the International Covenant on Human Rights. However, it cannot be denied that the declaration carries great significance as an instrument which lays out the standards by which Article 27 of the B Covenant should be applied and enacted.
According to this declaration, states must foster conditions which are necessary for the protection and promotion of minorities' identities. (Article 1) Furthermore, it states that minorities have the right not only to maintain their own culture, language or religion but also to participate in cultural, social, economic and civic activities. (Article 2)
The declaration adds that "the State must take measures to create favorable conditions which make it possible for those belonging to minority groups to express their character and to advance their culture, language, religion, traditions and customs" (Article 2, Paragraph 2); and in Article 4, Paragraph 3, it demands that states take appropriate measures to provide ample opportunities for minorities to learn and to teach their mother tongue.
As we can see from the content of such provisions, the declaration states more clearly than the convention that it is the duty of a State to guarantee the rights of minorities and that the State should take positive measures to protect and advance those rights. The declaration also calls for an end to the destruction of minority lifestyles and rights in the name of development when it states in Article 5 that appropriate consideration must be given to the fair gains of minorities when a State proposes and executes policies and plans.
In spite of the fact that this was a declaration, the Declaration of Minority Rights recognizes the rights that are essential for a minority to be able to protect its ethnic and religious identity while living together with the majority. It is for this reason that the Declaration of Minority Rights can be viewed, not only as an instrument which heightens the applicability of other human rights standards to the issues of minorities, but as a significant first step toward the establishment of a treaty dedicated to the protection of minority rights.
VI. Minorities and the International Convention on the Elimination of All Forms of Racial Discrimination
Unlike the documents of human rights standards discussed above, this document does not have the word minorities in its title. However, the International Convention on the Elimination of All Forms of Racial Discrimination is an extremely important document in the struggle for the elimination of discrimination against national, ethnic and tribal minorities and for the protection of lifestyles, lives and bodies of minorities from racist violence.
Since the treaty was adopted in 1965, 140 states have signed the document, which is second only to the Convention on the Rights of the Child. For example, in Great Britain, the nation's Parliament enacted the Race Relations Act in order to apply this treaty domestically. The act prohibits discrimination in employment, education and in all aspects of social life and clarifies one's responsibilities as they relate to discrimination. Many of the convention's signatory states have enacted similar anti-discrimination legislation.
As mentioned earlier, the incidence of violence against foreign workers and other minorities has risen with the resurgence of neo-Nazism, anti-Semitism and xenophobia in post-Cold War Europe; and in Japan, there have been occasional incidents of violence against female Korean students. In order to fulfill the purpose of this convention, the United Nations declared an Anti-Racism Decade and has been calling upon all states to honor the convention and to promote the enactment of anti-discriminatory policies. In particular, in urging signatory states to declare that it is a crime to form organizations that profess racist ideologies and advocate discrimination and violence and to punish them, Article 4 of the convention reflects the international community's determination to prevent a resurgence of the immoral acts of Nazism and fascism. Today, as we witness the discriminatory and inhuman violence against minorities - "ethnic cleansing" in the former Yugoslavia and tribal conflict in Rwanda - we cannot help but feel that the convention is needed now more than ever before; and yet, Japan still fails to comply with the convention, even as it maneuvers for a permanent seat on the U.N. Security Council and makes public claims that it wishes to contribute to the international community. We must strongly demand compliance without delay.
VII. Minorities in Japan and Issues in Japanese Society
It has been reported that the former spiritual leader of India, Mahatma Gandhi, once made a statement to the effect that the true test of democracy in a country is whether or not the rights of its minorities are respected. It is now 50 years since Japan set out to establish a society based upon two pillars: a commitment to peace and respect for basic human rights. It is imperative that the rights of Japan's minorities - the Ainu people, Koreans, the people of Okinawa and the ethnic Japanese people of the discriminated against Buraku community - be respected and upheld so that each of them can gain respect for their cultural, ethnic and social identities.
Certainly, Japan is a democratic and peaceful society for the vast majority of its residents, the Japanese, but this is not the case for its minorities who continue to be mistreated by prejudice and discrimination. It is true that many unreasonable forms of discrimination have been eliminated as some international standards, such as those found in the International Covenant on Human Rights, have been accepted by Japanese society. However, Japan is still far from becoming a place where resident minorities, like the Ainu and Koreans, can maintain their ethnic and cultural identities while living in harmony with the majority.
It was only a few years ago that the Japanese State recognized the Ainu as a minority group whom the International Covenant on Human Rights attempts to protect, but Koreans have not been recognized as a minority. Still unable to shed the national myth of "homogeneity," the State continues to oppress and exclude its minorities through discrimination and assimilation.
One right which is absolutely essential for ethnic and tribal minorities who wish to maintain their identities is the right to ethnic and language education. These rights have still not been guaranteed in Japan, and many children are being denied the opportunity to come in contact with their own culture and language. One might ask whether the Convention on the Rights of the Child can be used to correct such situations; but in light of the position of the Japanese government that current laws do not conflict with the convention, this is doubtful. Such changes will, therefore, depend on the behavior and hard work of not only the minority groups but of the majority Japanese.
The same can be said about other international human rights standards. The task of gaining acceptance for international human rights standards and of actualizing their contents in Japan must not be left to the government: it is necessary for each individual in society to understand and apply these human rights standards. This is true because acts of discrimination and oppression against minorities are perpetrated by individual citizens belonging to the majority group more often than they are by the government. Furthermore, members of society's majority group are the ones who uphold the legal and systemic discrimination maintained by their government. Therefore, although the government is responsible for the signing and enactment of the International Covenant on Human Rights, it is each citizen, through their individual actions, who actualize these standards in everyday life.
This is why it is necessary to work through education, mass communication and other media to ensure that the International Covenant on Human Rights is accepted in Japan and that the covenant's ideas and objectives are understood correctly. The number of non-government organizations (NGOs) struggling for international human rights is increasing, as is the number of common citizens who are interested in human rights, but the level of interest in human rights among the general population is still very low. Many people have correctly pointed out that, unless the rights of minorities come to be respected, as demanded in the International Covenant on Human Rights, and unless people learn how to live together with minorities in their midst, Japan cannot achieve true "internationalization" - the catchword to which Japanese society has aspired in recent years.
Efforts have been made by some regional governments to take up the issue of building a "society where everyone can live together." However, rather than wait for administrative efforts to yield results, I believe it is important for each person to begin today, not tomorrow, to work toward establishing a community where minorities can express their identities and live in joy with members of the majority community. This can be done by every individual in their microsocieties - at home, at school, at work or at church. A society in which minorities and the majority can live together cannot be established if we simply leave matters in the hands of the government, bureaucrats and specialists.
Today's and tomorrow's minorities are no longer the discriminated, oppressed and denied minorities of the past. Ours is not a negative existence anymore but a positive one. We are the test and proof of a society in which everyone can live together in accordance with the 21st century values of globalism, the international society, regional peace, respect for individual rights and respect for the identity of groups, especially minority groups. To repeat once again, minorities are the test of whether or not international society, a country or a regional community truly values peace and democracy.