"Forced evictions" ordered by the court -2001.6.1- [English/Japanese]
On the Imminent Forced Eviction of Utoro in Japan -2001.5.2- [English/Japanese]
What's UTORO -1997.3- [English/Japanese]
NEW YORK TIMES -1993.3.1- [English/Japanese]
"Forced evictions" ordered by the court
(with regard to article 2 and 11 of the
International Covenant on Economical,
Social and Cultural Rights)
1. the point at issue
In Japan, neither "legislation which gives substance to the right to housing in terms of defining the content of this right" nor "legislation prohibiting any form of eviction" exists. For instance, when a land owner brought a civil suit against the residents "for the evacuation of the land as well as the demolition of the buildings on it," the court in Japan gave repeatedly a ruling that they should be evicted from their homes without such compensation as adequite alternate housing, regardless of the international standards of human rights and only in accordance with the provisions of its internal laws. This judicial decision has set a precedent: hence a case law.
2. the background and reason
As one example of lawsuits "for the evacuation of the land as well as the demolition of the buildings on it," we will report "the Utoro cases." Approximately 700,000 Korean residents in Japan, about 0.5 percent of the whole population, are one of its minority groups. As a historical fact, Japan colonized Korea (1910 to 1945), and during World War II (1941 to 1945) in particular, the government mobilized many Korean laborers almost forcibly. Utoro is one of their communities, located at 51 Utoro, Iseda Town, Uji City, Kyoto Prefecture, and more than 90 percent of the dwellers (230 people in about 70 households) are Koreans deprived of their Japanese nationality now. The area originated from the site of the barracks to accommodate the Korean laborers mobilized almost forcibly for the construction of an airport planned by the wartime government. After the war, they were left behind uncompensated by the government or the contractor associated with airplane production. Though many of them returned to Korea at their expense, those who could not afford to leave continued their "informal settlement" in Japan. They led a community life there, built their houses by themselves, and continued striving to raise their standard of living. However, there was no water service in the area until 1988, since they were left alone by the local administration.
The land of Utoro (about 2 ha) continued to be owned after the war by the contractor (the present Nissan Shatai Corporation), but it was sold in 1987 without notice to or the consent of the dwellers to a real estate agent (Nishi-Nihon Shokusan Inc.), who planned to build high-rise condominiums there to make a profit, demanded the residents an immediate evacuation of the area, and brought the above-mentioned civil suits against the dwellers, who were divided into several defendant groups, at Kyoto District Court in 1989. They claimed that the historical background of their settlement in Utoro should be taken into account, but the Court gave rulings to the same effect: since they have occupied the land illegally, the defendants should demolish their buildings on it and leave, in accordance with the land-ownership of the plaintiff. The residents appealed to Osaka High Court and asserted their "right to adequate housing" but lost the cases. In 2000, The Supreme Court rejected their appeals: hence the decision became irrevocable. However, the dwellers have been living in Utoro. At present, the adjudication (the forced eviction of the area) is about to be put into execution.
Here we will instance two final judgments which refer to the International Covenant on Economic, Social and Cultural Rights:
The A) ruling makes a superficial reference to article 11 of the Covenant but ignores it substancially: the court, without examining its provisions concretely, concludes that the justiciability of that article should be denied.
- Since the International Covenant on Economic, Social and Cultural Rights states in article 2 (1) that "[e]ach State Party to the present Covenant undertakes to take steps, . . . with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures" and also in the latter part of article 11 (1) that "[t]he States Parties will take appropriate steps to ensure the realization of this right," it is obvious that article 11 of the Covenant prescribes a general and abstract obligation of the States Parties in relation to the realization of Economic, Social and Cultural Rights and that it is not legislation to be applied immediately to legal relation between third parties. (22/12/1998. the 9th Civil Case Division, Osaka High Court)
- Since the Committee on Economic, Social and Cultural Rights in the United Nations observes in its General Comment No.7 that "[t]he prohibition on forced evictions does not" "apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights" and Japan has ratified the International Covenant on Economic, Social and Cultural Rights, forced evictions in accordance with judicial decisions are interpreted as not prohibited. (6/10/1999. the 5th Civil Case Division, Osaka High Court)
The Committee on Economic, Social and Cultural Rights observes in its General Comment No.3 that "there are a number of other provisions" in this Covenant "which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain" and shows the necessity to examine its provisions of the Covenant concretely concerning their applicability to judicial decisions. As for "the right to adequate housing" and forced evictions in particular, the Committee states especially in its General Comment No.7 that States Parties to the present Covenant themselves "must refrain from forced evictions and ensure that the law is enforced against" their "agents or third parties who carry out forced evictions," thus prescribing definitely that the States have obligation to protect as well as that to respect. In other words, with regard to "the right to adequate housing," or at least forced evictions, article 11 (1) of the Covenant cannot be construed as prescribing "a general and abstract obligation of the States Parties in relation to the realization of Economic, Social and Cultural Rights" but as putting the States under positive obligation to protect individuals against forced evictions carried out by third parties as well as negative obligation to refrain from forced evictions. Hence there is no justification for the court's denying the justiciability of the articles of the Covenant by reason of their not being immediately applicable to legal relation between third parties.
The B) ruling refers to the General Comment No.7 superficially but in substance ignores it: without judging whether the forced eviction of Utoro is "in conformity with the provisions of the International Covenants on Human Rights" or not, the court concludes that forced evictions in accordance with judicial decisions are not prohibited. As a matter of fact, according to the General Comment No.7, to justify forced evictions which are considered "in conformity with the provisions of the International Covenants on Human Rights" in highly exceptional cases requires, for instance, an opportunity for a genuine and sincere consultation on alternative plans with those who are to be evicted and so on. This opportunity is the very criterion the court should have used to judge the case.
The dwellers of Utoro belong to "groups not traditionally protected" in Japan and have lived in the "illegal" sector for more than five decades due to the background of their settlement there. The Japanese government must have a genuine consultation with them and take immediate measures to protect them against forced evictions, harassment and other threats and to prevent them from being rendered homeless.
With regard to this point, the government refers in their Second Periodic Reports (E/1990/6/Add21.) to "the Community Living Environment Development Project" to improve "the environment in areas that have deteriorated because of the concentration of sub-standard housing," as measures to help "residents facing housing difficulty." Our preliminary survey on the area shows that Utoro falls under this category of "areas that have deteriorated because of the concentration of sub-standard housing." In fact, "the Utoro Community Renewal Plan" framed by the residents aims for the execution by the local administration of that undertaking, and most of them hope to be provided with adequate alternative housing.
In conclusion, the States Parties to the Covenants on Human Rights are under an obligation to take the most effectual measures immediately.(written by Masaki Saitoh, who is responsible for the wording of the article in the original Japanese, and translated from Japanese into English by Takeshi Shinyashiki).