Towards a “more effective approach” to human rights and democracy: developing tailored human rights strategies for the Asia-Pacific within a comparative human rights framework Dr. Paul Bacon Deputy Director, EUIJ Waseda Smart, Sustainable and Inclusive: Researching the EU from Australia and New Zealand 10 September 2013, Canberra, Australia

EU approaches to norm diffusion According to Amitav Acharya, most ‘first wave’ scholarship on norm diffusion is founded on moral cosmopolitanism. Aims at conversion to and acceptance of ‘universal’ norms, Does not focus on possible areas of legitimate contestation between universal and local norms. Norm diffusion literature, he argues, gives primacy to international prescriptions Sets up an implicit dichotomy between ‘good’ global or universal norms, and ‘bad’ regional or local norms. For moral cosmopolitans, norms making a universalistic claim about what is good are considered more desirable and more likely to prevail than norms that are localized or particularistic. EU literature on norm diffusion can be characterized as part of this approach.

Acharya and norm localization Acharya argues that many local beliefs are themselves part of a legitimate normative order, which will in practice condition the acceptance of foreign norms. Better to avoid excessive emphasis on the ‘universal’ and pursue the objective of norm localization. To localize something is to invest it with the characteristics of a particular place. “The active construction (through discourse, framing, grafting and cultural selection) of foreign ideas by local actors, which results in the former developing significant congruence with local beliefs and practices”. However, localization not simply a matter of identifying pre-existing congruence between universal and local norms, but rather a constructivist notion of a dynamic social process. Through this process parties might redefine their values, priorities and identities, which might in turn entail convergence between ‘universal’ and ‘local’ beliefs and shared practices.

4 recent EU documents on human rights and democracy December 2011: High Representative of the EU, Human Rights and Democracy at the Heart of EU External Action - Towards a More Effective Approach. June 2012: Council of the European Union, EU Strategic Framework on Human Rights and Democracy. June 2012: Council of the European Union, EU Action Plan on Human Rights and Democracy. October 2012: European Parliament, Enhancing EU Action on the Death Penalty in Asia, Briefing Paper.

Core elements of the 4 EU documents Renewal - policy needs to be ‘more active, more coherent, more effective’. Tailoring – need to create tailored, bottom-up, country- specific human rights strategies. Priorities - administration of justice, and the right to a fair trial (due process) recognized as human rights priorities. Universal - commits the EU to universal human rights norms. Local – commits the EU to working in partnership with local civil society organizations. Campaigns - need for cross- cutting themes such as judicial reform, right to a fair trial (HR). HR Ashton – in some countries, abolition of the death penalty is unlikely. In such cases it would be more practical to shift attention to other issues. European Parliament – countries are at different stages on journey to abolition, and therefore require different strategies. All states to ratify and implement universal human rights treaties. Four documents all explicitly recommend that EU should draw on standards in reports produced by the UN human rights bodies.

Developments on Human Rights in Asia Asian countries have different approaches to the death penalty, further demonstrating the need for a tailored approach. Of 24 Asian countries discussed in the Parliament report: – Five have abolished the DP: Bhutan, Cambodia, Mongolia, Nepal, Philippines. – Six are abolitionist in practice: Brunei, Burma, Laos, Maldives, South Korea, Sri Lanka. – Four have a significant downward trend in executions: China, Malaysia, Pakistan and Singapore. – Nine have experienced little or no progress: Afghanistan, Bangladesh, India, Indonesia, Japan, North Korea, Taiwan, Thailand, Vietnam.

Figure 1: Number of executions in Japan between 1998 and 2013

Developments on Human Rights in Japan 1 The Parliament report identifies Japan’s situation as having fluctuated markedly in recent years. It implies that there is little chance of an official moratorium or abolition of the DP in the near future. I agree. The Democratic Party of Japan was in power for three years, between 2009 and 2012, and was generally less supportive of the DP. (Only 2 executions in 2.5 years, until March 2012) There were two periods of de facto moratorium when the DPJ was in power, the second of which lasted 20 months. In 2012, however, there were 7 executions – election year! The December 2012 general election was won emphatically by the LDP, which is generally highly supportive of the DP. Since the LDP regained power, it has executed 5 prisoners, 3 in February 2013, and 2 in April However, there have been no executions for 4 months.

Developments on Human Rights in Japan 2 Roughly 85% of the Japanese public said to support the DP. The alleged popularity of the DP makes it politically costly to consider abolition, and offers an easy excuse to continue with executions. The DPJ was prepared to uphold a de facto moratorium during the middle of its term. But the de facto moratorium was the high-water mark of what is currently achievable in Japan on the DP, as the LDP won in December So, a more differentiated human rights strategy is necessary for Japan. This approach should still include the DP, but should not focus exclusively or excessively on the DP. The EU should not engage in ‘one-size-fits-all’ megaphone diplomacy. There are other human rights issues in Japan which are arguably more important than the DP, on which there is greater possibility of movement by the Japanese government. Broadly, I am referring to due process and criminal justice issues, which are identified as a priority across the four reports referred to above.

Methodology Use UN documents and the committee reporting process, as emphasized according to the EU’s new approach - the reports of the UN Human Rights Committee and the UN Committee Against Torture. These committees report on a country’s adherence to the ICCPR and the CAT, respectively. It is possible to distil roughly 40 criteria which one could use to assess a particular country’s performance with regard to the death penalty and due process. These 40 criteria form the basis for a comprehensive comparative framework, which can be used to study the human rights records of different countries. In what follows I apply this to Japan, but hopefully it is clear how the framework can be used to assess other countries, especially those which are subject to the reporting process for these two covenants. I have horizontally separated out issues which refer to the death penalty, and issues which refer to due process in the following slides. I have also categorized death penalty and due process issues vertically, listing them provisionally in descending order of priority (starting with the most important). Issues in red and marked with an * are those which I consider to be the most important/most achievable.

Death penalty-related recommendations 1 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Abolition of the death penalty Official moratorium on death penalty. Unofficial moratorium on death penalty. Significant reduction in number of executions Reduction in the number of executions Persons at an advanced age or with mental disabilities not to be executed. Minors not to be executed. Death penalty strictly limited to the most serious crimes. Powers of pardon, commutation and reprieve to be genuinely available to those sentenced to death. Mandatory system of review in capital cases*. Suspensive effect of requests for retrial or pardon in such cases*.

Death penalty-related recommendations 2 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Strict confidentiality for all meetings between death row inmates and their lawyers concerning retrial*. Inmates on death row and their families to be given reasonable advance notice of the scheduled date and time of the execution, to prepare themselves for this event*. Ensure that solitary confinement remains an exceptional measure of limited duration*. Separate hearings which establish guilt from sentencing hearings. Change method of execution, from hanging to something more humane. Introduce a maximum time limit for solitary confinement. Require prior physical and mental examination for inmates to be confined in protection cells. Discontinue practice of segregating certain inmates in “accommodating blocks” without clearly defined criteria or possibilities of appeal. Inform public about the desirability of abolition.

Due process-related recommendations 1 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Abolish substitute detention system (23 days, 72 hours). Right of confidential access to legal aid from the moment of arrest and irrespective of the nature of their alleged crime, for all suspects*. Right of confidential access to a lawyer during the interrogation process for all suspects*. Right of all suspects to have counsel present during interrogations, to prevent false confessions and ensure the rights of suspects*. Strict time limits for interrogation of suspects, and sanctions for non- compliance*. Systematic use of video recording devices for entire duration of interrogations*. Inform general public about some of the problems of the criminal justice system. Role of police during criminal investigations is to collect evidence for the trial rather than establishing the truth. Silence of suspects not considered inculpatory.

Due process-related recommendations 2 Drawn from the Concluding Observations of the Committee Against Torture (2007) and the Human Rights Committee (2008) Courts to rely on modern scientific evidence rather than confessions made during police interrogations. Right of confidential access to all police records related to their case for all suspects. Right of confidential access to medical treatment for all suspects. Pre-indictment bail system to be introduced. The Penal Institution and Detention Facilities Visiting Committees are adequately equipped and have full access to all relevant information. Members of above committees not appointed by management of penal institutions and police detention facilities. The Review and Investigation Panel for Complaints from Inmates of Penal Institutions adequately staffed and its opinions binding on the Ministry of Justice. Competence for reviewing complaints by detainees to be transferred from the Prefectural Public Safety Commissions to an independent body comprised of external experts.

Dialogue and localization: concrete suggestions Concessions by the Japanese government: – Improved management of time limits and conditions for interrogations. – Trial period where parts of police interviews have been recorded in more than 719 cases. – Commitment to keep solitary confinement as an exceptional measure of limited duration. Areas of dialogue and disagreement with the Japanese government: – Notification of prisoners before day of execution. – Japanese public support of death penalty. Public opinion polling on the death penalty in Japan. (Sato) Deliberative polling exercises based on the death penalty/criminal justice. (Milliot) Re-booting of the Tokyo Human Rights Task Force (diplomatic grouping of some 10 EU member-states). Country-specific interviews to identify 5 issues from each list to focus on, using two criteria, importance and likelihood of reform. Continued support for death penalty lobby groups such as the Federation of Bar Associations, the Diet Members League, and for relevant NGOs such as the Center for Prisoners’ Rights.