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Contemporary Issues in Human Rights Law Europe and Asia Contemporary Issues in Human Rights Law Yumiko Nakanishi Editor Yumiko Nakanishi Editor Contemporary Issues in Human Rights Law Europe and Asia Contemporary Issues in Human Rights Law Yumiko Nakanishi Editor Contemporary Issues in Human Rights Law Europe and Asia Editor Yumiko Nakanishi Graduate School of Law Hitotsubashi University Kunitachi Japan ISBN 978-981-10-6128-8 ISBN 978-981-10-6129-5 (eBook) https://doi.org/10.1007/978-981-10-6129-5 Library of Congress Control Number: 2017949146 © The Editor(s) (if applicable) and The Author(s) 2018. This book is an open access publication. Open Access This book is licensed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (http://creativecommons.org/ licenses/by-nc-nd/4.0/), which permits any noncommercial use, sharing, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if you modified the licensed material. You do not have permission under this license to share adapted material derived from this book or parts of it. The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. This work is subject to copyright. All commercial rights are reserved by the author(s), whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any otherphysical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed.Regarding these commercial rights a non-exclusive license has been granted to the publisher. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publi- cation does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Preface The EUSI (EU Studies Institute in Tokyo) organized an international symposium “Human Rights Issues in Europe and Asia” on January 30, 2017. This book is based on this symposium. European and Asian scholars of EU law, international law, constitutional law cooperate to actualize this project. We discussed human rights issues from a variety of aspects. I appreciate speakers, participants of the symposium as well as the EUSI staff. I am very thankful for the European Commission, especially the EU delegation in Japan which enabled us to do activities of the EUSI including the symposium. The work was supported by JSPS Grands-in-Aid for Scientific Research (KAKENHI) for 2017. Tokyo, Japan Prof. Dr. Yumiko Nakanishi June 2017 v Contents Part I Human Rights in Europe Mechanisms to Protect Human Rights in the EU’s External Relations............................................ 3 Yumiko Nakanishi Fundamental Rights Regimes in the European Union: Contouring Their Spheres ............................................... 23 Ferdinand Wollenschläger Human Rights Protection in the EU as Unitas Multiplex ............. 51 Noriko Ofuji Part II Human Rights in Asia The Role of the Judicial Branch in the Protection of Fundamental Rights in Japan .............................................. 73 Masahito Tadano Does Formal Rank Matter? .................................... 91 Shu-Perng Hwang The Asian Region and the International Criminal Court ............ 107 Hitomi Takemura Part III Special Topics of Human Rights in Europe and Asia The Principle of Non-discrimination in the European Convention on Human Rights and in EU Fundamental Rights Law ............. 129 Niels Petersen Women’s Rights and Gender Equality in Europe and Asia........... 143 Sara De Vido vii viii Contents Guarantee of the Right to Freedom of Speech in Japan—A Comparison with Doctrines in Germany .......................... 169 Takashi Jitsuhara China’s Development Banks in Asia: A Human Rights Perspective .... 193 Matthias Vanhullebusch Index ...................................................... 215 Editors and Contributors About the Editor Yumiko Nakanishi is Professor of European Union Law at Graduate School of Law, Hitotsubashi University, Tokyo. She studied European law at Hitotsubashi University and Münster University (Germany). She got Master of law (Hitotsubashi University 1993), Magister Legum (University of Münster 1995), and Doctor of law (University of Münster 1998). She is a member of the board of directors of the European Union Studies Association– Japan, member of Japan Association of Environmental Law and Policy, member of Japanese Society of International Law. She is founder and representative of Hitotsubashi Association of European Union Law. She is Chief Editor of the journal Review of European Law. Her fields of research are EU constitutional law, EU environmental law, and EU external relations law. Her publications include the following. Books: Contemporary Issues in Environmental Law—The EU and Japan, Springer 2016; Collection of Case Law Analysis regarding EU Competences, Shinzansha 2015 (in Japanese); Legal Structure of EU Competences, Shinzansha 2013 (in Japanese); European Union Law, Shinseisha, Tokyo 2012 (in Japanese). Articles: Completion of EU measures through court decisions: the example of the European arrest warrant, Hitotsubashi Journal of Law and Politics, Vol. 45, 2017, February, pp. 13–21; Japanese environmental law in the context of globalization—a focus on chemical law, in Alexander Proelß and others (ed.) Protecting the Environment for Future Generations-Principles and Actors in International Environmental Law, Berlin, Erich Schmidt Verlag 2017, pp. 283–304; Animal welfare in the European Union’s external relations law, in Jeremiah Weaver (ed.) Animal Welfare, Nova Science Publishers 2016, pp. 125–145; Introduction: The impact of the international and European environmental law on Japanese basic environmental law, pp. 1–13, The principle of animal welfare in the EU and its influence in Japan and the world, pp. 87–113, in Y. Nakanishi (ed.) Contemporary Issues in Environmental Law, Springer 2016; Economic partnership agreement between Japan and the European Union and legal issues, Hitotsubashi Journal of Law and politics, Vol. 44, 2016, pp. 19–30; Political principles in article 21 TEU and constitutionalism, Hitotsubashi Journal of Law and Politics, Vol. 42, 2014, pp. 11–23; Characteristics of free trade agreements of the EU in the legal context: a Japanese perspective, European Yearbook of International Economic Law, Springer 2017 (forthcoming). ix x Editors and Contributors Contributors Sara De Vido Ca’ Foscari University, Venice, Italy; Manchester International Law Centre Affiliate, Manchester, UK; Visiting Academic Hitotsubashi University, Tokyo, Japan Shu-Perng Hwang Institutum Iurisprudentiae, Academia Sinica, Taipei, Taiwan Takashi Jitsuhara Faculty of Law, Fukuoka University, Fukuoka, Japan Yumiko Nakanishi Graduate School of Law, Hitotsubashi University, Tokyo, Japan Noriko Ofuji Dokkyo University, Saitama, Japan Niels Petersen University of Münster, Münster, Germany Masahito Tadano Graduate School of Law, Hitotsubashi University, Tokyo, Japan Hitomi Takemura Graduate School of Law, Hitotsubashi University, Tokyo, Japan Matthias Vanhullebusch KoGuan Law School, Shanghai Jiao Tong University, Shanghai, China; School of Oriental and African Studies, University of London, London, UK Ferdinand Wollenschläger Chair for Public Law, European Law and Public Economic Law, Faculty of Law, Universität Augsburg, Augsburg, Germany Part I Human Rights in Europe Mechanisms to Protect Human Rights in the EU’s External Relations Yumiko Nakanishi 1 Introduction Protection of fundamental rights in the European Union (EU) has developed through the role of the Court of Justice of the EU (CJEU), especially since the 1970s.1 The CJEU has relied on constitutional traditions common to the EU Member States and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in particular, in order to guarantee funda- mental rights in the EU.2 The Treaty of Lisbon changed the protection of fundamental rights in the EU. The Treaty made the EU Charter of Fundamental Rights legally binding after the charter was solemnly proclaimed by the various EU organs in 2000. Now, the EU has its own catalogue of fundamental rights, the Charter of the EU Fundamental Rights. The CJEU guarantees fundamental rights in the
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