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Guest post by Tsubasa Shinohara†

Outline

1. Introduction
2. Common understanding of Articles 11 and 97
3. The meaning of the term “future generations” for nuclear disarmament
4. Conclusions

1. Introduction

The Japanese Constitution contains some important provisions, in particular Articles 11 and 97, using the term “future generations”. On the basis of those Articles, some scholars have justified their arguments that the Constitution grants rights to “future generations” in the context of the protection of environment[1]. Courts, practitioners and scholars[2] in Japan do, however, not share this understanding of these provisions[3].

This article will explain what is the common understanding of Articles 11 and 97 in order to analyse the meaning of “future generations” within the framework of the Japanese Constitution. This brief article is divided into the following chapters: after this introduction, I will give a general understanding of Articles 11 and 97 of the Japanese Constitution. Furthermore, I will briefly analyse how the terminology of “future generations” under the Japanese Constitution may be interpreted in the context of nuclear disarmament. I will conclude with some final remarks.

2. Common understanding of Articles 11 and 97

This chapter will give a general understanding of Articles 11 and 97 of the Japanese Constitution in practice. Article 11 provides for the following:

“The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.”[4]

I believe that Article 11 does not guarantee effective rights to the present and future generations. It only indicates that people must be guaranteed their fundamental rights and liberties under the Constitution by the State[5]. The Article may nevertheless play an important role in the protection of human rights, read in conjunction with other Articles, i.e. freedom of expression (Article 21), freedom of religion (Article 19) and freedom to choose an occupation (Article 23) and so forth. Furthermore, it has functioned to indicate the character of fundamental rights, namely “universality, inviolability, permanence and particularity”[6].

In terms of judgments of national courts, they have generally refused complaints relating to Article 11[7]. However, this does not mean that this provision has no sense from a legal perspective. Rather, the existence of Article 11 has permitted to incorporate norms of natural law into the interpretation of our Constitution[8].

On the basis of an ordinary interpretation of Article 11, it can only be said that this provision grants the protection of human rights to the people in Japan “after birth”, because human rights are considered to be recognised when a human being is born, as objectively visible entity, not as an invisible entity[9]. Therefore, some opinions that endorsed the existence of human rights for future generations, even if the entity does not exist, is a too extreme position. However, it can be said, at least, that this provision signifies that the Japanese Constitution imposes a certain liability as “moral responsibility”[10] on Japanese authorities to respect and protect human rights.   

On the other hand, Article 97 stipulates as follow:

“The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.”[11]

This provision reaffirms Articles 11, as well as 12 of the Constitution[12]. In particular, it is important to understand the term “in trust” of this Article, because this term is hard to interpret in general in the context of the Constitution. According to the Commentary of the Japanese Constitution, the term “in trust” is based on the concept of “trust” under Common law[13], which signifies that a settlor transfers its property to the trustees, who will hold it for thebeneficiaries and who are entitled to enforce the trust, if necessary by action in court[14]. Namely, present generations (trustees) have fundamental human rights and have to maintain and develop their rights by the constant efforts of the people. Thus, the present generations have taken over their rights from past generations (settlors) under the condition that the trustees must act for the future generations (beneficiaries)[15].

In sum, Articles 11 and 97 cannot give an effective right to ensure access to national courts; namely, they grant the protection of human rights to the people in Japan “after birth”, because human rights are considered to be recognised when a human being is born, as objectively visible entity, not as an invisible entity. They confirm, however, the existence of the “moral responsibility” on Japanese authorities to respect and protect human rights.

3. The meaning of the term “future generations” for nuclear disarmament

This chapter attempts to identify how to interpret the term “future generations” under the Japanese Constitution for nuclear disarmament. As I mentioned above, Articles 11 and 97 do not permit the people to have effective protection before the national courts. In this regard, the question is whether the term “future generations” under the Japanese Constitution gives nevertheless rise to legal obligations in the field of nuclear disarmament.

Concerning the term “future generations” under the Japanese Constitution, it has been said above that Article 11 and 97 do not guarantee a subjective right to seek compensation for violations of fundamental human rights. In other words, this term cannot generate an effective right to claim a legal remedy before the Japanese courts. This also applies to harm caused by nuclear activities.

However, the question can be rised whether there are there certain objective obligations, including nuclear disarmament duties under the Constitution flowing from those provisions, in particular in light of the “nuclear umbrella” regime and activities relating to nuclear weapons in connection with the United States? I will attempt to consider that question from the perspective of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) regime by identifying a few connections with the Japanese Constitution.

Under the NPT regime, the contracting parties must negotiate in good faith the nuclear disarmament under Article VI in the following:

“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”[16]

Daniel H. Joyner pointed out two legal consequences under Article VI: 1) “Article VI is a binding legal obligation, not a goal”, 2) “the duty to pursue negotiations ‘in good faith’ … indicates that efforts to merely pay lip service to the idea of negotiation do not suffice”[17]. However, he considers that the “interpretation of the general and complete disarmament obligation remains disputed”, but “the most important legal conclusion about the general and complete disarmament (GDC) obligation in Article VI … is that it has no bearing upon what is the most important obligation in Article VI – the obligation of all NPT parties to move toward complete nuclear weapons disarmament in good faith”[18].

On the basis of this understanding, Article VI should be interpreted in a way to impose on the Japanese authorities the obligation to pursue the negotiations in good faith on effective measures relating to nuclear disarmament in connection with Articles 11 and 97 of the Constitution. Within this meaning, this may lead to the conclusion that the Japanese government should not depend on the “nuclear umbrella” under the United States in order to avoid suffering from nuclear disasters for present and future generations. Within this meaning, these provisions can be interpreted as a harmonizing clause between international obligations and the Constitution.

As a result, it might be possible to argue that there is a linkage between domestic and international law with a view to imposing on the State the duty to progress on the negotiation of nuclear disarmament in order to protect the “future generations” in Japan under, not only the NPT regime, but the Japanese Constitution too. In this regard, the Japanese government has always indicated its position as a bridge-builder between the Nuclear Weapons States (NWS) and the Non-Nuclear Weapons States (NNWS)[19]. But if the Japanese authorities cannot be free from obedience to a nuclear umbrella, they are not capable of being a neutral actor between two positions (the NWS and the NNWS). Moreover, the Constitution imposes a “moral responsibility” to the government to prevent a catastrophic consequence caused by nuclear weapons, and protect human rights that are inherent from the past to present and future generations.

4. Conclusions

In conclusion, it is argued that Articles 11 and 97 of the Constitution may indicate a “symbolic” meaning that obliges the State to implement a moral responsibility without a legally binding effect, but that it is difficult to claim an effective right to bring a case against the State before national Courts. Furthermore, some argue that invisible entities, future generations, are also capable of possessing fundamental human “rights” under the Constitution, but this argument is hardly justified by legal theory, because the entity cannot, as of now, be recognised objectively. However, it is possible to say that the Japanese Constitution provides for a moral responsibility of the State to guarantee fundamental human rights for “future generations”, which means that “future generations” will be able to enjoy the same benefits as the present generation, i.e. environmental interests[20] (to live in a safe environment without nuclear waste for instance), and will not suffer from the consequences of a devastating disaster.

In other words, the term “future generations” can be understood as a “symbol” expressing what kind of obligations the State should respect concerning fundamental human rights benefiting to all people[21], not only in the present but also towards future generations.

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† Master of Law (University of Meiji). Currently, Candidate of Master of Law (University of Lausanne).

[1] Tremmel describes that “[o]nly three constitutions explicitly grant rights to future generations” such as Article 11 of the Japanese Constitution. Joerg Chet Tremmel, A Theory of Intergenerational Justice, Routledge, 2009, p. 58; also see Peter Lawrence, “An atmospheric trust to protect the environment for future generations? Reform options for human rights law”, in Human Rights and Sustainability – Moral responsibilities for the future, 1^st edition, Routledge, 2017, edited by Gerhard Bos & Marcus Düwell, pp. 25-39.

[2] Takayuki Kira, “Sedaikan-seigi to syourai-sedai no kenri-ron”, Kouji Aikyou, Jinken-no-syutai, hobunkasya, 2010, p.56.

[3] Judgment of the Japanese Supreme Court, 13 March 1997 (Minshū vol. 53, No. 3), pp. 1233 ss.

[4] See Hogaku-kyokai, Tyukai Nihon-koku kenpou jou-kan, 1995, p. 321; also see the website of the prime minister of Japan has published the English translation on the website: available at https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.

[5] Ibid., Hogaku-Kyokai, p. 321; also see Takasuke Kobayashi & Hitoshi Serizawa, Kihon-hō Konmentāru, Kenpō, 5^th edition, Nihon-hyōronsya, pp. 79-81.

[6] Ibid., Hogaku-Kyokai, pp. 324-327.

[7] Joji Shishido, “§ 11”, Yasuo Hasebe ed, Tyushaku Nihon-koku Kenpō (2), Yuhikaku, 2017, p. 56.  

[8] Ibid.

[9] Kira, supra note 2, p. 56; Nobuyoshi Ashibe (revised edition by Kazuyuki Takahashi), Kenpō, 7^th edition, Iwanami-shoten, 2019, p. 80.

[10] According to Oxford Advanced Learner’s Dictionary (2018, 9^th edition), the definition of “moral” in connection with “responsibility” is “based on your sense of what is right and fair, not on legal rights or duties”. Based on this definition, the term “moral responsibility” for States has a subjective character to interpret this concept to decide themselves whether their acts or omissions are correct or not even if they do not breach of legal norms. As a result, this notion is ambiguous, so that it is necessary to identify which situation the moral responsibility can occur.

[11] See Hogaku-kyokai, Tyukai Nihon-koku kenpou ge-kan, 1995, p. 1461; also see the website of the prime minister of Japan has published the English translation on the website: available from https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.

[12] Article 12: “The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.”

[13] Takasuke Kobayashi & Hitoshi Serizawa, Kihon-hō Konmentāru, Kenpō, 5^th edition, Nihon-hyōronsya, p. 439.

[14] Jonathan Law (ed.), A Dictionary of Law, 9^th edition, Oxford University Press, published online 2018, http://www.oxfordreference.com/view/10.1093/acref/9780198802525.001.0001/acref-978019

8802525-e-4054?rskey=EvVaPt&result=3.

[15] Takasuke Kobayashi & Hitoshi Serizawa, supra note 13, p. 439.

[16] The English text is available at https://www.un.org/disarmament/wmd/nuclear/npt/text.

[17] Daniel H. Joyner, “The legal meaning and implications of Article VI of the Non-Proliferation Treaty”, in Nuclear Weapons under International Law edited by G. Nystuen, S. Casey-Maslen, & A. Bersagel, Cambridge University Press, 2014, pp. 416-417.

[18] Ibid., p. 417.

[19] The Japanese Government’ position of nuclear disarmament (only in Japanese) is available at https://www.mofa.go.jp/mofaj/gaiko/bluebook/2018/html/chapter3_01_04.html#T012.

[20] Lawrence, supra note 1, pp. 30-33.

[21] In terms of the text of Article 11 and 97 of the Japanese Constitution, the subject of the sentence does not use the term “people” (Jin-min), but “nationals” (Koku-min), so that it seems that the subject under the Constitution that can enjoy human rights, is limited. In this regard, Tsujimura points out that there has been a long discussion as to how to understand the sphere of the human rights’ subject under the Japanese Constitution; namely, the question is whether foreigners within the Japanese territory can enjoy the human rights guarantees under Japanese Constitution. Currently, the Courts confirm that foreigners also can enjoy human rights guarantees under the Constitution. Therefore, the Japanese term under Article 11 and 97 can be translated into the term “people”. See Miyoko Tsujimura, Kenpō, 6th edition, Nihon-Hyoronsha, 2018, pp. 102-127; see also Ashibe, supra note 9, pp. 87-98.