The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
A Way to and from the Charter: A Short Survey over Law Education in a Japanese University
Osamu Niikura & Youjeong Jeong, Legal Culture Institute for Communal Justice (LCICJ)
Anniversary of the Charter of the United Nations is not necessarily a flag-waving event for Japan, loser in World War Two which is known as common experience of “scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” Generally speaking, men in the street of our nation have mixed feelings in term with the United Nations. The United Nations is something like a “Best and Brightest” champion of “World Peace and Security” as well as Messenger of Human Rights. In this sense people have shared common values just as our Constitution expresses in its preamble that “We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world.”
- A Double Structure of Japanese Society
Arguably it is not so simple. A majority of ordinary people in Japan have been clinging to the basic ideas of the Constitution: Pacifism, People’s Sovereignty and Human Rights as fundamental rights of people. We have still a vivid memory of political struggles, conducted up to 1960 in particular, against the US-Japan Security Treaty and long-standing US military bases withing our national borders. As a matter of fact, Pax Americana has been casting long shadow over every aspect of political scenes. Sometimes Japanese politicians, especially conservative figures, play like puppets under control of the USA. That can be explained by a double structure of the Japanese society.
The government party (Liberal Democratic Party) may feel at odds, especially witht the Pacifist clause of the Constitution (Article 9). While it has hawks and doves at the same time, the conservative party or LDP was founded in 1955 by aiming at revision of the Constitution, which becomes a principal object and basic policy. It has never failed to grip the powers for more than 70 years with some exceptional short periods of time, even while it has gained only a third of voters in general elections to get “fortunately” enough Diet members to take an initiative to revise the Constitution (two thirds of each chamber of the Diet). In reality LDP is a gathering of “revisionists” repenting Tokyo Trial against war criminals and inclining heavily toward “Pax Americana” by way of Japan-USA Mutual Security Treaty of 1960.
It is no secret that the first and foremost priority for the Ministry of Foreign Affairs of Japan was to delete completely “enemy clauses” from the Charter, which comes to a happy end. Then the next target is set to introduce Group Four, namely Brazil, Germany, India and Japan, into permanent seats in the Security Council. Why is such a diplomatic strategy as this to be set up? This is mainly because Japan has been in a position to take no other choice, at least from a viewpoint of Power Elites who have poured their might into economic development at the least cost to keep pace and security in the Far East Asia by making use of huge military powers extended by Washington. A simple fact explains this: on the day of signature of the San Francisco Peace Treaty, the then Prime Minister Shigeru Yoshida was obliged to sign at back-chamber of the same building a notorious US-Japan Security Treaty in 1951.
It should be noted that Japan has double structure in pollical and legal meaning; the Constitution of Japan is really basic legal foundation of the nation, but overshadowed by a bilateral treaty (the US-Japan Security Treaty of 1960 after having revised the original of 1951), which continues to make hollows of no-man’s-land to nullify the binding force of the Constitution. The Security Treaty protects US military service personnel to let them freely come and go without any visa verification by the Japanese government officers. By virtue of the Status Of Force Agreement (SOFA) under the Security Treaty, US military personnel other than civilian are all exempt of whatever tax which any other foreign residents should pay. In term with crimes committed by US military personnel, criminal jurisdiction is limited only to those committed outside of the military facilities for exclusionary use of US Forces, and by off-duty personnel. This is to say that any criminal perpetrators can go free if they happen to commit even a murder or rape within a zone for exclusive use of the US Forces and when they are on whatever duty at that time of commission.
In addition, if a US military personnel happened to rape any woman even outside of the US military facility and when he was off-duty, he can take a military flight from a US military air base to get back home and enjoy a honorable discharge to get some money. This was the case with Catherine Jane Fisher, Australian native and living in Tokyo over 30 years. She was raped on April 5, 2002 by a US serviceman serving at Yokosuka US Navy Base. It was off base, and the victim reported to a Japanese police station immediately after the atrocity. Unfortunately, the prosecutor dropped the case, and civil case was filed to order the criminal to pay as much as 3 million yen to the victim. This was a success story so far. The true compensation and healing, however, didn’t follow. The accused fled back home by US military plane from Atsugi or Yokota Air Base in Tokyo area. After so many years for search, she finally found the perpetrator to sue him at a County Circuit Court in Wisconsin. The defendant admitted the case, but the plaintiff, Catherine, had to be satisfied to get ONE DOLLAR instead of alleged damages of 3 million yen or 30,000 US$. A hollow was so wide and deep, justice is not yet done.
Let’s back to the double structure of Japanese entity. At the bottom of the structure, we can see international incidents in 20th Century. One was colonial plantation of Korea peninsula under rule of the Japanese Empire (1910 to 1945), and the other was decolonization and independence of China and Korea.
Colonial rule by the Japanese Empire was in the Age of Imperialism; firstly, Britain under reign of Queen Victoria invaded the Great Qing Empire to occupy some part of its territory in China, then came France to Indochina peninsula at the Age of the Second Empire under the rule of Napoleon III, and lastly the USA occupied the Philippines after a war with Spain. Germany (Deutsches Kaiserreich) at the Age of Kaiser Willihelm II occupied some part of China, which came to be ruled by Japanese Empire after the Versailles Peace Treaty concluded. More importantly, Japan proposed a draft resolution over equality of all races on the table of the Versailles conference only to be rejected by then Big Four (USA, France, Britain, Italy), that all had kept colonies or oversea territories, and that Japan accepted art. 227 of the Treaty of Versailles, which admitted and demanded prosecution against Kaiser Wilhelm II as a war criminal.
When the defeated Japan signed the Treaty of San Francisco to recover independence in September 8,1951, the Korean War had already broken out (June 25, 1950-July 27, 1953). The Korean Armistice Agreement was signed by the both sides of belligerent power, namely the United Nations Forces (90% of military personnel concerned provided by the USA alone) on one side, and North Korea (People’s Democratic Republic of Korea), China (People’s Republic of China) and Soviet Union (Union of Soviet Socialist Russia) on the other side.
It is quite natural that people in the Republic of Korea (South Korea), let alone those in the People’s Democratic Republic of Korea (DPRK, North Korea), have a touch of feeling somehow different from their counterparts in Japan. This can be explained by their national history going from independent and relatively advanced nation of Korean in older days to humiliating experiences in the period of colonial ruling by the Japanese Empire from 1910 to 1945. Defeat of the Japanese Empire and collapse of its colonial rules afterward did not however realize one and whole independent Korea by establishment of DPRK and separately by the independence of ROK in 1948. Unsolved problems of peaceful unification of Korean Peninsula have been pending since then, which might have led dubious look at effective peace-making process to be guided under the Charter of the United Nations. The atmosphere has begun to change since the both Korean countries were admitted to participate in the UN, and ratified the Charter in 1991 as a thrilling event in the Post-Cold-War era. South Korea has been trying its best, among others, to follow or even lead international political issues, particularly after Mr. Kim Dae-Jung took office as the 15th President of the Republic of Korea (ROK) in 1998. This might be understood by looking back to a long waiting-time before its concomitant admission to the UN with the People’s Democratic Republic of Korea (DPRK) in 1991. Yes, this year marks the 30th anniversary of admission to the UN of the both Koreas.
- The United Nations as it has been seen from the Republic of Korea
Since its inception, ROK or South Korea has followed a long way in relation to the universal entity of international law, that is the United Nations. Its history of relationship with the UN can be divided into three periods, namely 42 years and 8 months spent in a waiting room as observer to the UN, then first years of fresh member of the UN, and lastly a period of participation in full-swing.
- A period of apprentice from 1949 to 1991
In 1945 when the United Nations has emerged after unhappy disintegration of the League of Nations, Korean people gained independence from the colonial rule by the Empire of Japan(1910 to 1945). The Emperor Hirohito accepted the Potsdam Declaration (Proclamation Defining Terms for Japanese Surrender) to surrender without any conditions in August 15, 1945, the day which marks the National Liberation Day of Korea. Under the eyes of the newly born international entity, a general election was carried out to give birth of Republic of Korea. The founding fathers wrote and endorsed the first Constitution of the Republic, when the General Assembly, gathered in Paris, adopted unanimously the Universal Declaration of Human Rights, under auspices of Human Rights Commission presided by Ms. Eleanor Roosevelt. Professor René Cassin, the first President of the International Association of Democratic Lawyers (IADL), was the vice-president at the commission who made a significant draft of the Universal Declaration of Human Rights. In January 1949, the Government of ROK submitted a request for membership to the UN only to have to spend more than 42 years in a waiting room, which marks the longest world record of serving as an observer. At the first several years, the Korean people should have endured nearly disappearance in a turmoil of armed conflicts. This was so-called Korean War (1950 to 1953 of Armistice). The United Nations Forces was established under unified Command of the USA, which was made of 90% of military personnel recruited from the USA and 10% from other allied nations. The Security Council made successively resolutions such as S/RES/82 on June 25, 1950 to S/RES/84 on July 7, 1950, while USSR, permanent member of the Security Council, was absent. 22 Nations contributed military or medical personnel to UN Command (UNC) by virtue of resolutions of the Security Council (S/RES/84 of July 7, 1950 and S/RES/85 of 31 July, 1950). On July 27, 1953. United Nations Command, the Korean People’s Army and the Chinese People’s Volunteers signed the Korean Armistice Agreement. The agreement established the Military Armistice Commission (MAC) and the Neutral Nations Supervisory Commission (NNSC), while the Charter of the United Nations did not literally give any suggestion on these processes other than the Chapter VII on Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. In 1975, the UN General Assembly adopted a resolution, expressing the hope that UNC would be dissolved on 1 January 1976, while the UNC still keeps functioning to date.
Anyway, it is noteworthy that South Korea has made up principle of diplomatic policy by following the letter and spirit of the UN Charter, and the concentrated efforts during the Cold War era to adopt numerous resolutions on the question of Korea by the General Assembly of the UN may have contributed to develop the UN law.
- A period of Fresh Member from 1991 to 1995, and a period of Participation in Full Swing from 1996 to present
Since the admission to the UN, South Korea has made a remarkable development of diplomatic powers within and toward the United Nations. South Korea has served twice as member State in the Security Council from 1996 to 1997 and from 2013 to 2014. In 2001, Mr. Han Seong-soo assumed the office of the President at the Fifty-sixth special session and Tenth emergency special session. It is also unforgettable that Mr. Ban Ki-mon, ex-minister of foreign affairs of ROK, served the sixth Secretary General of the United Nations from January 1, 2007 to December 31, 2016. He was the second Secretary General chosen from the Asia & Pacific region after Mr. U Thant (1909-1974) who assumed the office from November 3, 1961 to December 31, 1971. South Korea’s activities on a global stage of international law and practices in the United Nations might have important influences on delicate relationships with North Korea (PDRK).
A simple fact that the North and the South of Korea have concomitantly joined in a world forum of the UN may make positive effects to build mutual understandings and trust, and it is a good expression of visible will and intent to uphold peaceful unification of the peninsula. In place of somehow exhaustive confrontations in the past time, every effort to extend cooperative contributions to the international community will make fruit in the future.
A big hope is that the UN could play a major role to make peace on the Peninsula. The United Nations is, in our minds, a forum to develop and build a common will to make our planet safer and more secured in peace by upholding the commonly acceptable principles for human beings. If unified and with unified efforts, the global community could and would achieve variety of outcomes in many ways beyond our imagination. Hopefully the UN could offer many good chances to develop more openly friendly relationship with the North.
People in the South have better understandings to such a point to that peace on the Peninsula need desperately supports and encouraging voices from the UN in particular and the international community in general. This is expressed apparently in the preambles of both fundamental international documents, such as the Charter of the United Nations and the Universal Declaration of Human Rights: “We the people of the United Nation ardently desire to have the World in peace and safe”
- The Charter of the United Nations as People’s Governance
As already Mr. Roland Weyl put it, while his “earlier” passed-away at the age of 102 is our deep regret from the viewpoint of international peace and universal human rights, “We, the People, establish the universal organization as is the United Nations.” Then the UN is a coordinated and coordinating entity of political and economic powers of the world, setting continuously universal legal norms. This is very unique character of the UN in quite clear contrast with the League of Nations founded in 1919 after the World War One.
Having said that, we are focusing on one of the four objectives formulated in Article 55 c of the Charter: “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” There are some ranges of implications according to national conditions, which may explain differences in structures and functions of universal standard of human rights.
- Legal Education of Future Activists as World Citizen
While we are to be called to action globally under the same banner of, say Global Compact or SDG’s, peoples of the world are still born and grow to die in a “cage” of Nation State. To handle lots of global challenges such as climate change, poverty, endangered biodiversity, natural disasters, and COVID-19, we need much more coordinated efforts with much more numbers of human rights conscious activists like Greta Thunberg.
We have already started a legal educational program in a University class to discuss and share common values by using the Universal Declaration of Human Rights as the basic material. Hopefully the next step will be net-widening of students concerned. And in this course of movement a guiding star must an ideal of “Communal Justice for Mutual Prosperity”, which is the very basis of Fundamental Law of Education in the Republic of Korea.
Youjeong Jeong, co-author of this article, has many years of experiences to read and talk about the Universal Declaration of Human Rights together with university students. It is generally seen in Japan that while people are likely to tell us that a term “human rights as an expression of respect toward human being” is commonly heard and accepted as something ordinary, but as a matter of fact the word “human rights” might sound quite queer, something strange or even nothing to do with them. As for this kind of vague acceptance of human rights in Japan, ordinary university students are no exception. It can be said that this is some kind of self-alienation, refusing to accept the reality by underestimating its value and importance. Everyone may well know that he/she is bestowed human rights, but rarely does anyone come to realize that everyone is closely connected with it. It is really difficult to make action with real knowledge of a fact that he/she is a real stakeholder of human rights in many ways.
So, it could be concluded that a lack of knowledge in this regard should require people to know a real world of human rights, and to become a stakeholder in this field. From this reason or other, students may feel at odds to learn what is human rights from the very beginning. There are seemingly too many hurdles and handicaps before them even in a department of law in Japan. We dare to say, on the contrary, that this is a true reason why we should learn the Universal Declaration of Human Rights as it is. It’s simple. The UDHR is “one of the most beautiful promises human beings have ever made,” or in other words “the most fundamental content of human rights as we live in the human world.” Ever since the General Assembly of the United Nations in Paris adopted unanimously with some abstentions, the named rights and their essence have not changed at all. This is the very beginning to know and use human rights, with 9 other basic documents in this regard. It is the very core of the family of international instruments on human rights.
In a classroom on Anglo-American Law and Politics Readings, Youjeong Jeong has 4 years’ experiences after Osamu Niikura retired from the University. Numbers of students in this course vary year by year: 3 in 2018, 126 (too many to be taught in a classroom) in 2019, 13 (due to influence of COVID-19) in 2020, and around 65 (not yet definitely listed) in 2021. We think it worthwhile to cite some from various responses that these students have shown in the classroom, as their recognition grows wider and deeper in regard to human rights.
- “I thought the Universal Declaration of Human Rights was drafted only by the Victors in World War Two. My forethought is betrayed.” “I was in a pitfall to misunderstand that American rulers made it up at all. It was simply wrong.” “I know now and see a picture of drafting process to find out that variety of nations of different cultures and different religions have come up to make a common work. It is simply surprising.” It is true that students really understand the real drafting process in a commission of 9 experts from different cultures and regions. From the viewpoint of gender equality, however, it still leaves problems that the UDHR is not really universal as the drafting commission has only one female member, while Ms. Eleanor Roosevelt presided it.
- Many students did not hide their surprises to have a good knowledge that UDHR convers crucial rights to be protected, in relation to social discriminations, decent labor conditions of temporary workers, and serious conditions of so many refugees. While written over 70 years ago, the instrument has still resounding effects. Actuality, what they may have felt will lead them into the next step of much deeper studies about actual world they are facing with.
We have a pleasure to have a good occasion to read through the UDHR from the preamble to the last article 30 with students with fresh eyes and to discuss with them what the UDHR will tell us in our actual world. We can come to understand what human rights issues the UDHR is addressing us, and to have refreshing feeling somehow responsible for what we have to do now.
The UDHR is really a lens through which we can closely watch what is going on in the world. In this regard, Human Rights are items implying what we need to claim, and at the same time items implying what we can analyze what complicated actual conditions of life are now. The UDHR also give us a measure to exactly grasp actual social problems we have to face. It’s a entrance gate to guide us to social engagement or active participation into social problems. The UDHR is a ringing bell to notice us what to do actually under actual conditions and with actual cooperative teams of activists. Cooperative efforts are needed, and unified activities are needed now throughout the world. We can come to understand that common policy and agenda are needed, as well as common enterprises are truly needed. The UDHR is in this meaning a precious treasure that human kind can have so far to encourage us to tackle with common issues. It was written with a deep belief in our world filled with justice without any distinctions and all human kind to be equally treated as dignified being. It is in other words the most precious and beautiful engagement to be realized in the future. More importantly the UDHR was proclaimed by the General Assembly in the name of the people of the United Nations. Let’s just recall its preamble:
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
 Osamu Niikura, born in Japan, 1949, former President of JALISA (Japan Lawyers International Solidarity Association) and incumbent President of JDLA (Japan Democratic Lawyers Association), Professor emeritus at Aoyama Gakuin University, Attorney at Law, President at Legal Culture Institute for Communal Justice (LCICJ). Youjeong Jeong, born in Republic of Korea, 1982, Lecturer at Aoyama Gakuin University and at Rissho University, and Chief Research Fellow at Legal Culture Institute for Communal Justice (LCICJ)
 The preamble of the Charter of the United Nations.
 Shigeru Yoshida used to be a member of the delegation of Japanese Empire to the Versailles Peace Conference in 1919 under auspice of his father-in-law, Nobuaki Makino, ambassador extraordinary and plenipotentiary. He himself was the grandfather of Taro Aso, former Prime Minister, who served only a year, 2008-2009, as the Head of the Government, while he is the longest serving Minister of Finances and Vice Prime Minister in the Shinzo Abe administration and Hidetake Suga administration.
 The original US-Japan Security Treaty was revised and signed in 1960 by the then Prime Minister Nobusuke Kishi, grand-father of the former Prime Minister Shinzo Abe (serving September 26, 2006 to September 26, 2007 at the First Abe Cabinet, as well as December 28, 2012 to September 16, 2020 at the Second to Fourth Cabinets). One may be surprised to know that so-called “Democracy” of Japanese Nation has been ruled by small numbers of “Saint Family” of conservative politicians.
 Catherine Jane Fisher, I Am Catherine Jane, the True Stroty of One Woman’s Quest for Justice, Vivid Publishing, 2014.
 Professor René Cassin was awarded in 1968 Nobel Peace Prize, after decades in service for the European Court of Human Rights. See, https://www.nobelpeaceprize.org/Prize-winners/Winners/1968, visited as of October 1, 2021.
 Question of Korea, A/RES/3390 (XXX) A-B, on November 18, 1975.
 See, United Nations Command, https://www.unc.mil/ visited as of October 1, 2021.
 A/RES/217 (III) A , December 10, 1948. It was adopted by 48 to zero with 8 abstentions. https://undocs.org/en/A/PV.183, visited as of October 1, 2021.
 In addition to the International Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights. https://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx