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Title

The Ainu in Japan : The Ainu andInternational Law

AuthorKiriyama, Takanobu / Osakada, Yuko

Citation

HOGAKU ZASSHI : (JOURNAL OF
LAW AND POLITICS) OF OSAKACITY UNIVERSITY. 63 巻 4 号, p.10701059.

Issue Date2017-12ISSN

0441-0351

Type

Departmental Bulletin Paper

Textversion Publisher
Publisher

大阪市立大学法学会

Description
DOI

10.24544/ocu.20190109-004

Placed on: Osaka City University

Osaka Metropolitan University

〈資

料〉

The Ainu in Japan――The Ainu and International Law――

Takanobu Kiriyama and Yuko Osakada1）

Introduction
This working paper intends to analyze how the international law, especiallyinternational human rights instruments including the UN Declaration of the Rights ofIndigenous Peoples (UNDRIP), affects the Ainu, an indigenous people of Japan. For thispurpose, chapter 1 examines the so-called Nibutani Dam judgment, chapter 2 shows thecurrent situation of the Ainu and chapter 3 conducts a study about the relationshipbetween forest certiﬁcation schemes and the Ainu. Kiriyama is in charge of chapter 1
and Osakada is responsible for chapters 2 and 3. In the process of writing this paper, theinterviews were held twice at the Ainu Association of Hokkaido (21 January 2017 and 16
March 2017) and once at the FSC Japan (24 January 2017).

I The NIBUTANI DAM DECISION2） and after
The Japanese government was denying the existence of minorities protected by
Article 27 of the International Covenant on Civil and Political Rights (ICCPR) for a long
third report to the Human Rights Committee, the Japanese government admitted the
Ainu as a minority group3）, but even after that, the government did not recognize the1) Authors are the members of the Committee on the Implementation of the Rights
of Indigenous Peoples of the International Law Association (ILA). This paper is arevised version of our paper submitted to the Committee as part of the Committeeʼsresarch regarding the land rights of indigenous peoples.
2) Kayano et. al v. Hokkaido Expropriation Committee (The NIBUTANI DAM
DECISION), 38 I. L. M. 394 (1999), translated by Mark A. Levin with theintroductory note.
(法雑 ʼ17）63―4―105

一〇七〇

time, particularly at the dialogue with the international human rights bodies. At the資料

Ainu as the indigenous people.
The ﬁrst small step towards the protection for an indigenous people of Japan
appeared during the Nibutani Dam Decision. The Ainu people is an indigenous people
who have lived around the northern part of Japan, especially in Hokkaido, with a uniquelanguage as well as religious and cultural distinctiveness. The construction project of
the Nibutani Dam was to submerge the symbolic site for the Ainu peopleʼs religious andcultural ceremony. The Ainu, therefore, brought an action for invalidation of the
expropriation of the land for the construction of the Dam.
In 1997, Sapporo District Court found as follows ;First, the court recognized the Ainu people as an indigenous people for the ﬁrst time
as one of the Japanese state organizations. Although, at the international level, there arecontroversies over the deﬁnition of an indigenous people, the court tried to deﬁnethem4）. Consequently, the court recognized the Ainu people as an indigenous people
within the meaning of the deﬁnition cited below.
Second, the Ainu were recognized as having a right to enjoy their distinct culture thatis based both on Article 13 of the Constitution of Japan and Article 27 of the ICCPR.
Although Article 27 of the ICCPR does not require the minorityʼs indigenousness, anethnic groupʼs indigenous character demands enhanced consideration of their culturalneeds. On the other hand, those rights are subject to the limits of the public welfare
included in Articles 12 and 13 of the Constitution5）.

→

一〇六九

3) CCPR/C/70/Add. 1, para.233(1991).
4) The court regards “indigenous people as a social group who live and have lived
in a religion which historically existed outside of a stateʼs rule and was brought
under that stateʼs rule as a minority group with a culture and identity which
differed from the majority of the parent ruling state, and who have retained aunique culture and identity that originate and continue from the past, such thateven while subject to the rule of the above-mentioned majority, that group has notsince lost the unique culture and identity which derives and continues from thepast.” The NIBUTANI DAM DECISION, op cit., pp. 419-420.
5) Article 13 of the Constitution of Japan provides “All of the people shall(法雑 ʼ17）63―4―106

The Ainu in Japan（Kiriyama and Osakada)
Third, after considering the comparative balance between the interest arising fromthe dam project and the Ainuʼs rights to enjoy their culture, the court recognized thelimitation of the latter should be minimum.

The court said, “the Minister ofConstruction, who was the authorizing agency and the agent for the enterpriseauthority in the instant matter, neglected the investigative and research proceduresthat were necessary to judge the priority of the competing interests6）, and gave aconcession without taking measures to minimize the inﬂuence over the Ainu culture.
Such action exceeded the administrative discretion given to the authorizing agency
pursuant to Article 20(3) of the Land Expropriation Law, thus was illegal”.
Fourth, as the Nibutani Dam was already complete and ﬁlled with water, the court
admitted the status quo because of the extraordinary harm to the public interest in caseof reversing the Conﬁscatory Administrative Rulings.
Regarding the rights of indigenous peoples, the court recognized the right to enjoy the
Ainu peopleʼs culture, but did not recognize the right to self-determination of indigenous
peoples. This caused controversies over the scope of the decision. Parallel to thefounding of the Nibutani Dam case, the government enacted the Ainu culture promotionact7）, not recognizing the right to self-determination of the Ainu.
Another important point is that the court limited the right of the Ainu stipulated in
the ICCPR based on the public welfare clause of the Japanese Constitution. Apart fromthe interpretation of the provisions of the Japanese Constitution, however, public
ICCPR.

→

be respected as individuals. Their right to life, liberty, and the pursuit of happinessshall, to the extent that it does not interfere with the public welfare, be thesupreme consideration in legislation and in other governmental affairs.”
6) The NIBUTANI DAM DECISION, op. cit., p.427.
7) The Law for the Promotion of the Ainu Culture and for the Dissemination and
Advocacy for the Traditions of the Ainu and the Ainu Culture.
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一〇六八

welfare principle, which is very vague, should not be applied to limit the articles of the資料

In 2003, the Biratori Dam project was revived. The Dam is situated on the upper
reaches of the river where the Nibutani Dam is located. During the convention between
the authority and people concerned, the investigation committee on cultural andenvironmental assessment evaluation was set and the people concerned took part in it.
The investigation committee researched the Ainu peopleʼs culture and published thereport in 20068）. Although the local committee, which was set after the submission of
the report, has been discussing the preservation of cultures and environments with theparticipation of local Ainu representatives, they presuppose the construction of theDam, not aiming at the modiﬁcation of the construction plan based on the culturalassessment9）. According to Kaizawa Koichi, one of the plaintiffs in the Nibutani Dam
case, the plan of dam construction was rarely modiﬁed based on the culturalassessment10）. As of November 2016, the Dam has been under construction. At least, it
could be said that no comparative consideration between the proﬁt of Dam construction
and the failed value of the culture of the Ainu had taken place in deciding whether toresume the construction of the Dam. On the other hand,according to the interview at
the Center for preservation of the Ainu culture, Biratori City on 21 October 2017, thedeveloper has been transplanting woods and plants which are necessary for the Ainu
culture along the nearby river. It also has been repairing landscape to mitigate theimpact on the Ainu culture and further enrich it, in cooperation with the Biratori City.
This project includes the establishment of an alternative place for the Ainu ceremonies.

II. Current Situation of the Ainu
According to a survey which was conducted by Hokkaidoʼs local government in 2013,
一〇六七

the number of the Ainu who live in Hokkaido is 16,786, that is 0.4% of the regionʼs
total11）. People who are considered to be Ainu descendants, or those living with the8) Biratori City, Ainu Bunka Kankyo Hozen Taisaku Chousa Soukatsu Houkokusho,
March 2006.
9) The Website of the Hokkaido Regional Development Bureau, MuroranDevelopment and Construction, available at http://www.hkd.mlit.go.jp/mr/sarugawa_damu/tn6s9g0000003aqw.html.
10) The telephone interview with Koichi Kaizawa was conducted on 8 May 2017.
11) Hokkaido Prefecture, Hokkaido Ainu Seikatstu Jittai Chosa Houkokusho, 2013,p. 3.
(法雑 ʼ17）63―4―108

The Ainu in Japan（Kiriyama and Osakada)
Ainu through marriage or adoption could be identiﬁed as the Ainu. On the other hand,the survey did not target those who were considered to be Ainu descendants but
refused to be identiﬁed.
In 2015, the Japanese government conducted surveys with regard to discriminationand prejudice against the Ainu. According to the surveys, 72. 1% of the Ainu said
discrimination and prejudice are still directed against their race12）. 36.6% said that they
had actually experienced discrimination13）. Some examples of discrimination include :marriage or relationships meeting opposition from non-Ainu partnerʼs families ; having
an unpleasant experience at school or in the workplace14）.
It was not until one year after the adoption of the UNDRIP that the Japanese
government recognized the Ainu as an indigenous people. On June 6, 2008, the House ofRepresentatives and the House of Councillors unanimously passed the “Resolution to
Recognize the Ainu as an Indigenous People”. The resolution referred to the adoption of
the UNDRIP as reﬂecting the Ainuʼs long-cherished desire and required the government
to recognize the Ainu as an indigenous people of Japan. In response to the resolution,
the government ﬁnally recognized the Ainu as an indigenous people who have lived
around the northern part of the Japanese Archipelago, especially in Hokkaido, andpromised not only to enhance the Ainu policies taken so far, but also to make efforts toestablish comprehensive Ainu policy measures, in reference to relevant clauses of the
UNDRIP15）. The adoption of the UNDRIP, therefore, had a certain inﬂuence on theofﬁcial recognition of the Ainuʼs indigenous status.

12) Comprehensive Ainu Policy Ofﬁce, Cabinet Secretariat, Government of Japan,“Kokumin No Ainu Ni Taisuru Rikaido Nituiteno Ishiki Chousa” No Gaiyou, 2016,
p. 1.
13) Ibid., p. 2.
14) Ibid., p. 3.
15) The Statement of the Chief Cabinet Secretary on 6 June 2008, available at http://
www.kantei.go.jp/jp/singi/ainusuishin/meibo.pdf.
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一〇六六

In July 2008, the Chief Cabinet Secretary called a high-level expert council, the資料Advisory Council for Future Ainu Policy, to consider principles and measures for future
Ainu policy. The Advisory Council, with one representative of the Ainu, submitted its
Final Report to the Chief Cabinet Secretary in July 2009. There, the Advisory Council
recognized the signiﬁcance of the UNDRIP and said “although it is not legally binding,the Declaration should be fully respected as a general international guideline forindigenous policies”. The Council, nevertheless, limited the role of the UNDRIP inconsidering the Ainu policies as follows :“However, just as the histories and current situations of the worldʼ s 370 million
indigenous people are enormously diverse, so are the countries in which they live.
These individual conditions cannot be ignored as far as the Declaration is concerned. In
this respect, Japan should establish its Ainu policy in line with the current conditions of
the country as well as of Ainu people themselves, referring to relevant clauses of the
Declaration and sincerely listening to the voices of Ainu people living today16）.”
The Ainu have not been recognized for any special or collective rights so far. Instead,some new Ainu policies are being considered at the Council for Ainu Policy Promotion,
which was set up in December 2009 and is hosted by the Chief Cabinet Secretary. As of
12 February 2016, the Council consists of 15 members including 5 Ainu representatives17）.
The key project under consideration is the development of the Symbolic Space forEthnic Harmony, a national center for revitalizing Ainu culture, in Shiraoi, Hokkaido.
Within the Symbolic Space, a new national museum concerning Ainu history and culture
一〇六五

is to be established. The plan to repatriate Ainu ancestral remains, which had been
exhumed by Japanese scholars and kept at local universities, to their descendants is alsoin progress. Some remains that are unidentiﬁed are to be aggregated in a memorial
facility established in the Symbolic Space18）. These policies, however, are not taken to16) Advisory Council for Future Ainu Policy, Final Report, July 2009, p. 21.
17) The Website of Council for Ainu Policy Promotion, available at http://www.
kantei.go.jp/jp/singi/ainusuishin/index_e.html.
18) The Website of Council for Ainu Policy Promotion, available at http://www.
kantei.go.jp/jp/singi/ainusuishin/dai4/siryou2_2.pdf.
(法雑 ʼ17）63―4―110

The Ainu in Japan（Kiriyama and Osakada)
implement the UNDRIP. The UNDRIP is only taken into account in considering thesepolicies. The impact of the UNDRIP in considering the Ainu policies has been limited.

III. Forest Certiﬁcation and the Ainu
Forest certiﬁcation is the process of inspecting forests to assess their management
according to an established set of standards. In Japan, two forest certiﬁcation schemes,
namely the Forest Stewardship Council® (FSC), an international NGO, and theSustainable Green Ecosystem Council (SGEC), an independent organization operating
only in Japan, have been carrying out such initiatives. In June 2016, the SGEC obtained
the endorsement by the Programme for the Endorsement of Forest Certiﬁcation(PEFC), an international NGO. While the FSC is a standard setter and sets its own
global standards, the PEFC is not a standard setter but a mutual recognition scheme19）.
The PEFC was set up as an endorsement process, to assess independent national
forestry management schemes against internationally recognized criteria for sustainable forest management. It is remarkable that the Japanese branch of the FSC (FSC
Japan) and the SGEC are currently drafting or revising their national standards which
require the protection of indigenous peoplesʼ rights in consultation with the Ainu
Association of Hokkaido.
1. FSC and the protection of indigenous peoples’ rights
The forest management certiﬁcation standard of FSC has 10 principles, which areapplied to forests to be certiﬁed. Principle 3 relates to indigenous peoplesʼ rights.
Version 5-0 of the FSC Principles and Criteria (P&C V5-0)20）, approved in February
uphold indigenous peoplesʼ legal and customary rights of ownership, use and19) As to the basic differences between FSC and PEFC, see PEFC, PEFC and FSC :Global Sustainable Forest Management Certiﬁcation Schemes, November 2011,
available at http://www.easyfairs.com/uploads/tx_ef/PEFC__FSC_Factsheet-1-.
pdf ; Norihiko Shiraishi, “Yutakana Mori Wo Sodateru, Atarashii CSR Katsudou No
Katachi”, 13 February 2008, available at http: //www. wwf. or. jp/activities/
upﬁles/20080213fsc02.pdf.
20) Forest Stewardship Council®, FSC Principles and Criteria for Forest
Stewardship, FSC-STD-01-001 V5-0 EN (2015).
(法雑 ʼ17）63―4―111

一〇六四2012, requires the organization holding or applying for certiﬁcation to “identify and資料

management of land, territories and resources affected by management activities (3-1)”.
In this regard, it is noteworthy that P&C V5-0 refers to the UNDRIP as follows :“3-4 The organization shall recognize and uphold the rights, customs and culture of
Indigenous Peoples as deﬁned in the United Nations Declaration on the Rights ofIndigenous Peoples (2007) and ILO Convention 169 (1989).”
This means the organization holding or applying for certiﬁcation needs to comply with
the UNDRIP irrespective of its non-binding nature as well as ILO Convention 169
regardless of its ratiﬁcation status.
In applying the P&C in forest management evaluation, indicators need to be made atnational level to meet the different local condition. To improve the consistency andquality of National Forest Stewardship Standards, however, in March 2015, the FSC
Board of Directors approved the International Generic Indicators (IGI)21）, which is thestarting point to develop national standard. It is notable that the IGI refers to free, priorand informed consent (FPIC) of indigenous peoples more concretely :“3.2.4 Free, prior and informed consent is granted by Indigenous Peoples prior to
management activities that affect their identiﬁed rights through a process that includes :…3) Informing the Indigenous Peoples of their right to withhold or modify consent to
the proposed management activities to the extent necessary to protect their rights,
resources, lands and territories ; …
The FSC Japan has been drafting the national standards in accordance with the IGI.
一〇六三

In drafting the national standards with regard to indigenous peoplesʼ rights, the FSC
Japan has been consulting with stakeholders and experts on indigenous peoplesʼ issues
including the Ainu Association of Hokkaido. According to the Ainu Association of
Hokkaido, their opinions are mostly reﬂected in the standard setting, thus generally
satisﬁed with its national standards.
Although no collective rights to lands of the Ainu have ofﬁcially been recognized,21) Forest Stewardship Council®, International Generic Indicators, FSC-STD-60004 V1-0 EN (2015).
(法雑 ʼ17）63―4―112

The Ainu in Japan（Kiriyama and Osakada)organizations holding or applying for FSC certiﬁcation must identify and not violate
their customary right to lands. In addition, organizations holding or applying for FSC
certiﬁcation should not violate the UNDRIP and ILO Convention 169, though theJapanese government has emphasized the formerʼs non-binding nature and does not
ratify the latter.
In Hokkaido, where most Ainu people live, three organizations have acquired FSC
certiﬁcation so far. None of them formally identiﬁed the customary right to lands of the
Ainu. One organization, however, made an agreement with the local Ainu Association,and has been conducting the forest management, with consideration of the preservationand promotion of the Ainu culture. The local Ainu Association expressed satisfaction in
the implementation of the agreement22）. According to the Ainu Association of
Hokkaido, the existence of the Ainu people directly affected by the forest management
should have been recognized in another one case.
2. SGEC & PEFC and the protection of indigenous peoples’ rights
The PEFC endorses national forest certiﬁcation schemes that comply with PEFC
Council requirements. National forest certiﬁcation schemes are subject to regular
evaluation based on PEFC Council requirements.
23）

indigenous peoples, PEFC Council requirements

With regard to the rights ofapproved in November 2010

stipulate as follows :“5. 6. 4. Forest management activities shall be conducted in recognition of theestablished framework of legal, customary and traditional rights such as outlined in ILO
infringed upon without the free, prior and informed consent of the holders of the rights,
including the provision of compensation where applicable. Where the extent of rights is
not yet resolved or is in dispute there are processes for just and fair resolution. In suchcases forest managers shall, in the interim, provide meaningful opportunities for parties
22) The telephone interview with the local Ainu Association was held on 10 May
2017.
23) PEFC, Sustainable Forest Management – Requirements, PEFC ST 1003 : 2010(2010).
(法雑 ʼ17）63―4―113

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169 and the UN Declaration on the Rights of Indigenous Peoples, which shall not be

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to be engaged in forest management decisions whilst respecting the process and roles
and responsibilities laid out in the policies and laws where the certiﬁcation takes place.”
In 2012, the PEFC Council selected TJConsulting to carry out an independent andimpartial assessment of the SGEC scheme documentation against the PEFC Council
requirements. In the ﬁnal report published in April 2016, TJConsulting pointed out theminor non-conformity based on the following argumentation :“- Mandatory nature of ILO 169 and UNDRIP is not clear. They are listed amongst“international conventions”, ratiﬁed or not, that are expected to be respected (2-5).
However, chapter 2-5 also states that forest owner shall follow domestic acts relating to
the areas relevant to such areas. Chapter 5-1 then states that only “ratiﬁed conventions”
shall be complied with. ILO 169 has not been ratiﬁed ; UNDRIP is not the international
convention and as such has not been ratiﬁed. Therefore, there is uncertainty between
2-5 and 5.1/5-1-1 and it is unclear whether ILO 169 and UNDRIP should be followed,
respected or complied with.
- The document does not include provisions relating to the “Free, Prior and Informed
Consent” although note 1 to 5-2-5 envisages communication with the indigenous people
in free and open manner prior to certiﬁcation.”24）
Following the evaluation of the SGEC scheme against the PEFC Councilʼ srequirements, TJConsulting recommended to the Board of Directors to endorse the
SGEC scheme with the following condition resolving the minor non-conformity identiﬁedin the assessment :“SGEC to actively engage with AINU Association of Hokkaido in order to develop a
一〇六一

mutually acceptable solution for recognition of AINU peopleʼs rights in the SGEC forest
management standard (6).”25）
The endorsement of SGEC scheme was formally approved by the PEFC Council
board meeting held in April 2016 and the subsequent PEFC General Assembly in June
201626）. As the above-mentioned condition recommended by the TJConsulting was24) TJConsulting, Assessment of the SGEC forest certiﬁcation scheme against therequirements of the PEFC Council, Final Report, 4 April 2016, p. 66.
25) Ibid., p. 5.
(法雑 ʼ17）63―4―114

The Ainu in Japan（Kiriyama and Osakada)adopted by the PEFC Board of Directors, the SGEC is currently revising its national
standards concerning the rights of indigenous peoples in consultation with the Ainu
Association of Hokkaido. According to the Ainu Association of Hokkaido, they partly
disagree with the current draft revision of SGEC standard because, in particular, it does
not introduce the requirement of their FPIC properly.
The SGEC is the largest certiﬁcation framework in Hokkaido, where most Ainu
people live. As of 31 May 2016, the SGEC certiﬁcation covers 19% of Hokkaidoʼs forests,
including both public and private ones27）. The revision of SGEC standards concerning
the rights of indigenous peoples, thus, will affect the management of national forests andHokkaido prefectural forests certiﬁed by the SGEC.

Conclusion
In communicating with some international bodies, the Japanese government was
denying the indigenous status of the Ainu. In the Nibutani Dam case, however, theSapporo District Court recognized the Ainu as an indigenou people of Japan. This wasfor the ﬁrst time that an organization of state afﬁrmed the indigenous status of the Ainu.
Interpreting the domestic law, the Court also acknowledged that the Ainu people should
enjoy the cultural right of persons belonging to minorities by referring to the article 27of the ICCPR as well as article 13 of the Japanese Constitution. The Court, thereafter,
mentioned that, in deciding and implementing policies that might affect the culture ofindigenous minority people, the Minister of Construction, an administrative organ ofstate, had a responsibility to seriously take into account their culture as to not unjustly
impact assessment was conducted with the participation of the local Ainu. The plan ofthe dam construction was, nevertheless, rarely modiﬁed based on the assessment. On
the other hand, the developer has been transplanting woods and plants which arenecessary for the Ainu culture along the nearby river to mitigate the impact on the26) The Website of PEFC, available at http://pefc.org/news-a-media/general-sfmnews/2137-sgec-endorsement-by-pefc-a-beacon-of-light27) The Website of Hokkaido Prefecture, available at http://www.pref.hokkaido.lg.
jp/sr/srk/ninsyo-syutokujoukyou.pdf(法雑 ʼ17）63―4―115

一〇六〇violate their rights. After the judgment, constructing the Biratori Dam, the cultural

資料

Ainu culture and further enrich it, in cooperation with the Biratori City. This project
includes the establishment of an alternative place for the Ainu ceremonies.
One year after the adoption of the UNDRIP, in June 2008, the Japanese government
recognized the Ainu as an indigenous people of Japan. The adoption of the UNDRIP
deﬁnitely had a certain inﬂuence on the ofﬁcial recognition of the Ainuʼs indigenous
status. The Council for Ainu Policy Promotion, which was set up in December 2009, hasbeen considering some new Ainu policies, taking into account the UNDRIP, with theparticipation of 5 Ainu members. No collective rights including land rights, nonetheless,have been recognized to the Ainu so far. Therefore the impact of the UNDRIP inconsidering the Ainu policies has been limited.
On the other hand, on a private level, an interesting development with regard to forest
certiﬁcation schemes could be identiﬁed. The FSC Japan has been developing thenational standards in consultation with stakeholders and experts on indigenous peoplesʼ
issues including the Ainu Association of Hokkaido. These draft standards demand thatorganizations holding or applying for FSC certiﬁcation must identify and not violate thecustomary right to lands of indigenous peoples. In addition, organizations holding or
applying for FSC certiﬁcation are required not to violate the UNDRIP and ILO
Convention 169, though the Japanese government has emphasized the formerʼs nonbinding nature and does not ratify the latter. The SGEC, which was endorsed by thePEFC, has also been revising the national standards, consulting with the Ainu
Association of Hokkaido. At this moment, however, the Ainu Association of Hokkaido is
一〇五九

dissatisﬁed with the way requirements of their FPIC are introduced there.

(法雑 ʼ17）63―4―116