Essential Commodities and Racial Justice: Using Constitutional Protection of Japan’s Indigenous Ainu People to Inform Understandings of the United States and Japan
New York University of International Law and Politics, Vol. 33, p, 419, 2001
108 Pages Posted: 7 Jul 2010 Last revised: 10 Dec 2013
Date Written: 2001
When two Ainu landowners refused to agree to the government's expropriation of their land for the construction of a dam near their home in Nibutani Village, they sparked a legal battle that would come to reshape relations between Japan's dominant Wajin majority and the indigenous Ainu people. The 1997 Nibutani Dam decision represented the first time the Japanese nation-state acknowledged the Ainu people as a distinct ethnic minority group and recognized a long history of Ainu oppression. The innovative legal reasoning of the decision was rooted in both Japanese constitutional law and international human rights law, and its legal analysis has far-reaching implications for the future of both the Ainu people and other indigenous peoples around the world.
This article presents a detailed history of the Wajin majority's often unjust and antagonistic interactions with the indigenous Ainu and the history of the Nibutani Dam case itself. This historical framework provides the context for an examination of the unique constitutional jurisprudence employed in the Nibutani Dam decision and the larger implications of the decision as it relates to racial justice and the rights of indigenous minorities generally. Finally, this article explores how American scholarship on race justice, writings in critical race theory, illuminate questions about indigenousness, race, and ethnicity in Japan.
The author's annotated translation of the complete Nibutani Dam decision is also available on SSRN at http://ssrn.com/abstract=1635447.
Keywords: Ainu, indigenous rights, Japanese constitutional law, International Covenant of Civil and Political Rights, ICCPR, Nibutani Dam Decision, racial justice, Hokkaido, Critical Race Theory, Comparative Constitutional Law, racial minorities in Japan, expropriations, takings
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