The results of the 2015 screening of new textbooks for junior secondary school students in Japan provoked criticism. The new textbooks falsified the Ainu history, which is reflective of the present Ainu policy of Japan. There is fear that these textbooks would give the majority Japanese a wrong historical view of the Ainu. This article discusses Ainu’s indigeneity and their collective rights in the present Ainu policy to explore an alternative policy.
Present Ainu Policy
The present Ainu policy is traced back to the replacement of the 1899 Hokkaido Former Aborigines Protection Act with the so-called Ainu Culture Promotion Act (CPA) of 1997. The drafting of the CPA was based on the 1996 report of the Advisory Committee on the Future Measures for Ainu People. The 2009 Final Report of the second advisory body, Advisory Council for Future Ainu Policy, established under the CPA, led to the establishment of the Council for Ainu Policy Promotion which was tasked “to comprehensively and effectively promote Ainu policy, taking views and opinions of Ainu people into consideration.”1 The seven members of the first advisory council (Advisory Committee on the Future Measures for Ainu People) were all Japanese, while the second one (Advisory Council for Future Ainu Policy) was made up of seven Japanese and only one Ainu. It can be said that the Ainu have basically been excluded from the present Ainu policymaking.
In 2007, Japan reluctantly voted for the United Nations Declaration on the Rights of Indigenous Peoples. In 2008, the Diet passed in a hurry a resolution on the Ainu just a month before the G8 summit in Hokkaido. It recommended to the government to recognize the Ainu as an indigenous people in the northern part of the Japanese Archipelago in particular Hokkaido. The government immediately accepted the resolution. However, the CPA, the only existing legislation for the Ainu, does not refer to Ainu’s indigeneity and their rights. Against this backdrop, the government maintains the position that it cannot conclude whether or not the Ainu are among the indigenous peoples stipulated in international instruments and, consequently, has no idea of what their rights are. A scrutiny of the two advisory councils’ reports explains the situation.
Perception of Ainu’s Indigeneity
The 1996 report of the first advisory council describes the Ainu as follows:2
From the historical viewpoint, it cannot be denied that Ainu persons are indigenous to the northern part of the Japanese Archipelago in particular Hokkaido, a territory that is an inherent part of Japan.
But historians do not support this view as seen in this statement: “The state of Japan was founded in the end of the seventh century based on the western part of the Archipelago…Hokkaido and Ryukyu were outside of Japan until the middle of the nineteenth century.”3 The first advisory council was supposed to take advantage of the archaeological evidence that Jomon people lived more than ten thousand years ago as the first inhabitants in the Archipelago, including Hokkaido. In fact, “the region where Jomon culture prevailed almost overlaps the present territory of Japan. However, we cannot treat equally the demarcation of Jomon culture and the border of Japan with neighbouring countries.”4 Since the end of the Jomon period at around 300 BC, Hokkaido, Ryukyu and Japan had been distinct from each other until the latter’s colonization of Hokkaido and Ryukyu. Overall, archaeological, anthropological and historical evidence support the view that “the Ainu, the Ryukyuan and the Japanese have their roots in Jomon people, and that they have had their own histories and recognized each other as different ethnic groups.”5 The second advisory council repeated the view of the first advisory council in stating that the “Ainu people have lived around the northern part of the Japanese Archipelago, especially in Hokkaido, as an inherent territory of Japan.”6
With regard to the perception of Ainu’s indigeneity, there is no difference between the two advisory councils. The usage of the term “inherent territory of Japan” for Hokkaido implies that “the Ainu and the ethnic Japanese comprise a single identity of ‘Japan’, of which they are both a part.”7 Thus the two advisory councils encouraged the government to “emphasize the non-indigenous characteristics of the Ainu so that they are treated the same as other minority groups.”8 This resulted in the CPA’s non-recognition of the Ainu’s indigeneity, despite existing international criteria on indigenous peoples. The same colonial discourse is expressed by Tanimoto Akihisa, historian at the Center for Ainu and Indigenous Studies of Hokkaido University in Yahoo! News Japan on 3 March 2015.9 He views the Ainu culture as one of the traditional cultures peculiar to Japan along with Japanese culture and Ryukyu Okinawa culture. He denies the historical fact that the Ainu had developed distinct language and culture on their own outside of Japan’s territory prior to Japan’s colonization of Ainu land, and that the Ainu have handed down their culture from generation to generation until today despite discriminatory conditions. Thus he misleads the public into supporting the above-mentioned CPA.
Perception of Ainu’s Rights
Close examination of the two advisory councils’ reports shows that both councils never discussed how to protect Ainu’s rights or the collective rights of the Ainu in accordance with international human rights norms, though both had lawyers as members. This is seen in the CPA which has no provision on any collective right of the Ainu. As a consequence, the United Nations (UN) human rights treaty bodies have expressed concerns and provided recommendations to the Japanese government in their concluding observations on the periodic reports of Japan. For instance, the Human Rights Committee (HRC) of the International Covenant on the Civil and Political Rights (ICCPR) stated in August 2014: “The State party should take further steps to revise its legislation and fully guarantee the rights of Ainu, Ryukyu and Okinawa communities to their traditional land and natural resources.”10 Simultaneously, the Committee on the Elimination of Racial Discrimination (CERD) of the International Convention on the Elimination of All Forms of Racial Discrimination recommended to Japan to drastically change the present Ainu policy by, among others, adopting “appropriate measures to protect the rights of the Ainu people to land and natural resources, and to foster the implementation of measures aimed at the realization of their right to culture and language.”11
Teruki Tsunemoto, the Director of the Center for Ainu and Indigenous Studies who has been involved in Japan’s Ainu policymaking for many years as key constitutional lawyer, defends the present Ainu policy by saying that the Ainu do not conform to the definition of the indigenous peoples who are entitled to enjoy self-determination and land under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). He further insists:12
It is unacceptable for the Ainu themselves to decide whether or not someone is an Ainu who can receive benefits from the authorities concerned. Indigenous rights, including the right to land and language, are collective, and so they contradict the individual-based human rights in the legal system of Japan. Based on the  Final Report, the Ainu should be called an ethnic minority with indigeneity rather than an indigenous people. The present Ainu policy should be maintained and developed within Japanese jurisprudence, because Article 13 of the Constitution enables Ainu persons to live a life with their identity as Ainu.
In sum, he confines the concept of Ainu’s indigeneity and their rights to the Japanese context. In fact, both advisory councils helped the government to disregard Article 27 of the ICCPR and Article 15 of the International Covenant on the Economic, Social and Cultural Rights (ICESCR) to which Japan is a State party, that ensure the collective rights of indigenous peoples, including the Ainu.
Collective Rights of the Ainu
The international community supports the view that “[N]o single definition could capture the diversity of indigenous peoples worldwide…[and] it was not desirable or possible to arrive at a universal definition.”13 Instead of a universal definition, the UN recognizes the indigenous peoples’ right to self-identification or the power to decide who belongs to them by referring to the following criteria:14
• Historical continuity with pre-colonial and/or pre-settler societies;
• Strong link to territories and surrounding natural resources;
• Distinct social, economic or political systems;
• Distinct language, culture and beliefs;
• Form non-dominant groups of society;
• Resolve to maintain and reproduce ancestral environments and systems as distinctive peoples and communities.
These criteria add to the internationally recognized criteria provided by International Labour Organization (ILO) Convention No. 169 and Martinéz Cobo Report to the UN Sub-Commission on the Prevention of Discrimination of Minorities.
In the process of drafting the UNDRIP, “Japan was one of the strongest critics as many of the articles contradicted the government’s stance on collective rights.”15 An open admission by the government of the colonization of Ainu land would guarantee Ainu's indigeneity based on the UN criteria, and would be a first step to protecting the collective rights of the Ainu.
In essence, indigenous peoples enjoy their own culture, profess and practice their own religion and use their own language in community with other members. Therefore, “collective rights are a special category of rights that are especially important for indigenous peoples worldwide.”16 At present, collective rights are derived from individual rights of indigenous peoples and other minorities. For example, Article 27 of the ICCPR and Article 15 of the ICESCR ensure collective rights of indigenous peoples as mentioned above.17 Even in Japan, the Sapporo District Court in deciding on the case regarding the construction of the Nibutani Dam declared that the Ainu have the right to enjoy their own culture as indigenous people based on Article 27 of the ICCPR and Article 13 of the Constitution of Japan. In other words,18
the Japanese court in the Nibutani Dam Case was able to view individual rights and collective rights as not being mutually exclusive. Viewed in this manner, individual rights do not necessarily render collective rights invalid in Japan. Despite this, in international forums the Japanese government has continually insisted on their interpretation of the constitution that divides collective and individual rights into two separate categories that cannot exist together.
Under the Constitution of Japan, the human rights of everyone are equally protected. In reality, the Constitution ensures the human rights of the majority Japanese, while the Ainu, who need collective rights as mentioned above, are not protected as far as maintaining and developing their own language and culture. In order to confirm the equality of all human rights, the collective rights of the Ainu should be immediately taken into consideration. For instance, the Ainu have no right to fish salmon like the majority Japanese, though salmon is indispensable for their culture. In order to enjoy their own culture, fishing rights should be conferred on the Ainu as a whole. However, Ochiai Kenichi, constitutional lawyer at the Centre for the Ainu and Indigenous Studies of Hokkaido University, contends that the collective rights of the Ainu cannot be ensured without the consent of the majority Japanese.19 If so, minorities, including the Ainu, are not protected by the Constitution. Human rights are universal, inalienable and indivisible, and are unconditionally applied to everyone across the globe. The protection of minorities does not require the majority’s endorsement. His argument is, therefore, against the core values of human rights. Further, he insists that the Symbolic Space for Ethnic Harmony promoted by the Council for Ainu Policy Promotion is likely to give the majority an opportunity to learn the history and traditions of the Ainu. If, as he argues, an insufficient understanding of the Ainu by the majority impedes the promotion of Ainu culture, the first priority should be given to correcting the authorized description of the Ainu in history textbooks, let alone correcting the flawed current Ainu policy.
The reports of the first and second advisory councils, which underlie the present Ainu policy, helped to falsify Japan’s colonization of Ainu land in the modern and postmodern eras, and to neglect Ainu’s rights or the collective rights of the Ainu. It resulted in the flawed current Ainu policy in terms of perception of Ainu’s indigeneity and their rights according to the international human rights norms. In order to replace the current Ainu policy with a new one, the government first of all ought to openly admit its colonization of Ainu land and apologize to the Ainu for it. Second, the government has to recognize the collective rights of the Ainu in accordance with international human rights norms. Today, Ainu’s full participation in decisions affecting them is guaranteed based on the principle of free, prior and informed consent under the General Comment No. 23 of the CERD and the General Comment No. 21 of the CESCR. Japan bears the responsibility of observing international human rights instruments, including inter alia the ICCPR, ICESCR and CERD, in accordance with Article 98 of the Constitution of Japan20 in order to move forward.
Hiroshi Maruyama is a guest professor at the Hugo Valentin Centre, Uppsala University.
 Advisory Committee on the Future Measures for Ainu People, Hokokusho [Report], (Tokyo: 1996), page 2.
 Amino, Y., Nihon toha nanika [What is Japan?] (Tokyo: Kodansha, 2000), page 26.
 Segawa, T. Ainugaku nyumon [An introduction to Ainu studies] (Tokyo: Kodansha, 2015) page 42.
 Ibid., page 43.
 Advisory Council for Future Ainu Policy, Final Report (Tokyo: 2009), page 19.
 Tanimoto, A., Yahoo! News Japan. 3 March 2015;
http://headlines.yahoo.co.jp/hl?a=20150303-00000005-wordleaf-pol (accessed on 28 July 2015).
 Human Rights Committee, Concluding observations on the sixth periodic report of Japan, CCPR/C/JPN/CO/6, 20 August 2014,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fJPN%2fCO%2f6&Lang=en (accessed 14 August 2015).
 Committee on the Elimination of Racial Discrimination, Concluding observations on the combined seventh to ninth periodic reports of Japan, CERD/C/JPN/CO/7-9, 26 September 2014,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fJPN%2fCO%2f7-9&Lang=en (accessed 9 August 2015).
 Tsunemoto, T., “Ainuminnzoku to nihonngata senjuminzoku seisaku” [The Ainu and Japanese model indigenous policy]”, Gakujutsu no doko [Trend of Scholarship]. (Tokyo: Japan Science Support Foundation, 2011) pages 80-81.
 UNGA, Discrimination Against Indigenous Peoples - Report of the Working Group on Indigenous Populations on its fourteenth session, E/CN.4/Sub.2/1996/21, 16 August 1996, para 28.,
 United Nations Permanent Forum on Indigenous Issues, Indigenous Peoples, Indigenous Voices – Fact Sheet,
 Porter, op. cit., page 203.
 Ibid., page 209.
 General Comment No. 23 of the Human Rights Committee, CCPR/C/21/Rev.1/Add.5, 26 April 1994, available at
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11; General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, E/C.12/GC/21, 21 December 2009, available at
 Porter, op. cit., page 210.
 Ochiai, K., Minzokukyosei no shocho to naru kukan koso no kenpogakuteki igi [Constitutional significance of a concept of Symbolic Space for Ethnic Harmony]. Kokusai Jinken Hiroba No. 108, 2013,
www.hurights.or.jp/archives/newsletter/sectiion3/2013/03/post-204.html (accessed on 8 August 2015), pages 3-5.
 Article 98 provides that “[T]he treaties concluded by Japan and established laws of nations shall be faithfully observed.”