Chapter 1: Background and Basic Situation

1. Japanese Laws and Policies Prohibiting Racial Discrimination

(1) Absence of Laws Prohibiting Racial Discrimination

A. Conclusions and Recommendations

Because there are no laws in Japan that prohibit racial discrimination, and because Japan has not enacted systematic and effective measures to bar racial discrimination, Japan is in violation of Article 2, paragraph 1 of the Convention.

B. The Government Report

While the government cites various provisions of the Japanese constitution in the section of the Introduction entitled 'Respect for Fundamental Human Rights in the Constitution of Japan', and mentions related laws and regulations pertaining to the prohibition of discrimination in Article 2, there is no mention of any laws or systematic measures to prohibit racial discrimination. Furthermore, while the section of Article 6 of the Report entitled 'Remedies by Judicial Organs' states that there are cases in which racially discriminatory actions that violate various provisions of the Civil Code may be redressed under that Code, and that indictments under criminal law may be issued when racially discriminatory conduct 'constitutes a crime', the report does not discuss any law that provides redress for racially discriminatory conduct in and of itself.

C. Position of the JFBA

1) While the Constitution and other laws proclaim that discrimination is prohibited, there are no laws that specifically provide for penalties or remedies for discriminatory conduct, or that establish an affirmative duty to refrain from committing discriminatory acts.

2) The Convention is recognized to have the force of domestic law, but because the Japanese government often objects in actual court cases to the direct applicability of the provisions of the Convention, no penalty or remedy for discriminatory conduct, or affirmative duty to refrain from committing discriminatory acts, has been established through the direct application of the provisions of the Convention.

(2) Toleration of discrimination under theory of 'reasonable discrimination'

A. Conclusions and Recommendations

According to the courts and the government, the constitutional prohibition against discrimination does not bar 'reasonable discrimination', but the application of the theory of 'reasonable discrimination', which is vague and lacks clear standards, violates Article 1, paragraph 1, Article 2, paragraph 1, and Articles 5 and 6 of the Convention.

B. The Government Report

The Government Report does not mention the fact that government interpretation and judicial case law exclude 'reasonable discrimination' from the provisions of the Constitution prohibiting discrimination, nor does it discuss the fact that in most of the cases in which a plaintiff alleges the existence of racial discrimination falling under Article 1, paragraph 1 of the Convention, the plaintiff's claim is dismissed on the ground that the alleged conduct constitutes 'reasonable discrimination'.

C. Position of the JFBA

1) The interpretation of the Constitution's prohibition of discrimination by the courts and the government as not barring 'reasonable discrimination' has had the effect of legalizing conduct that should be considered discriminatory and should not be tolerated.

2) Because Japanese courts have also applied the doctrine of 'reasonable discrimination' to the prohibition against discrimination contained in the International Covenant on Civil and Political Rights, the Human Rights Committee has warned that such application should be discontinued.

3) While there are no judicial decisions on the issue of whether or not the Convention may be construed as permitting reasonable discrimination, it should be made clear that such an interpretation cannot excuse a party from its obligations under the Convention.

(3) Absence of effective remedial measures regarding private discrimination

A. Conclusions and Recommendations

Laws should be enacted to ensure that private discriminatory conduct between individuals is investigated, punished and remedied.

B. The Government Report

While the Government report states in the section of Article 2 entitled 'Prohibition of Discrimination Among Individuals' and in the section of Article 6 entitled 'Remedies by Judicial Organs' that there are cases in which racially discriminatory actions that violate various provisions of the Civil Code may be redressed under that Code, and that indictments under criminal law may be issued when racially discriminatory conduct 'constitutes a crime', the report does not discuss any law that provides redress for racially discriminatory conduct in and of itself.

C. Position of the JFBA

1) Under current law, victims of private discrimination are entitled to receive only civil remedies under the general provisions of the Civil Code governing violations of public order and morals and tortious conduct.

2) Furthermore, there is little case law and no settled interpretation regarding the application of these general provisions of the Civil Code to racially discriminatory conduct.

3) Moreover, while the Convention guarantees that remedies for discriminatory conduct shall be implemented, including but not limited to investigation, sanctions and civil measures, these guarantees are not present in Japanese law.

2. Groups protected from racial discrimination under the Convention

(1) So-called 'Burakumin'

A. Conclusions and Recommendations

Discrimination against so-called 'Burakumin' in Japan constitutes discrimination based on 'descent' under Article 1, paragraph 1 of the Convention, and the Japanese government's performance of its obligations under the Convention with regard to such discrimination must be reviewed.

B. The Government Report

There is no mention in the Government Report of discrimination against so-called 'Burakumin'.

C. Position of the JFBA

Discrimination against so-called 'Burakumin' residing in Japan is a serious problem regarding which the national and prefectural governments have implemented for many years so- called 'Dowa administration' to eliminate such discrimination. This discrimination originated from the class system present during the feudal period of Japan, and the victims of such discrimination have historically been treated as outcasts in Japanese society. Even in modern times, discrimination in such areas as employment and marriage continues to exist based on one's connection to occupations such as tanning and meat processing, to which a disproportionately large number of victims of discrimination have belonged, or based on one's birth in a region in which a large number of victims of discrimination reside. Consequently, this discrimination against 'Burakumin' constitutes discrimination based on 'descent' as described in Article 1, paragraph 1 of the Convention, and the current status of such discrimination and the measures taken to eliminate it should be examined from the standpoint of Japan's obligations under the Convention.

(2) Discrimination against other minorities ignored in the Report

A. Conclusions and Recommendations

The status of the Japanese government's performance of its obligations under the Convention with regard to discrimination against other minorities not discussed in the Government Report, such as Taiwanese residing in Japan, Japanese returning from China, or South Americans of Japanese descent returning to Japan, should also be examined.

B. The Government Report

There is no discussion in the Government Report of discrimination against other minorities such as Taiwanese residing in Japan, Japanese returning from China, or South Americans of Japanese descent returning to Japan.

C. Position of the JFBA

In addition to the minorities discussed in the Government Report, various other ethnic and cultural minorities reside in Japan.

Taiwanese residents of Japan are the descendants of Taiwanese that were forced to come to Japan, and while their Chinese nationality was restored to them after the war, they reside in Japan as permanent residents. Special Chinese-nationality permanent residents of Japan, of which such Taiwanese residents of Japan comprise more than half, totaled 4,252 persons in 1999, and the number of resident Chinese nationals including general permanent residents is 42,212. Although resident Taiwanese were conscripted to serve as soldiers or civilian employees in the former Japanese Army, they have suffered public discrimination through the denial of wartime pensions and survivors' benefits, and are often regarded by Japanese society as inferior by virtue of their having been born in a former Japanese colony.

Japanese returning from China are Japanese citizens who were forced to remain in China, together with their families having Chinese nationality, during the period between the end of the war and 1972, when China and Japan had no diplomatic relations. While they were permitted to return to Japan after the resumption of diplomatic relations, even after their integration into Japanese society, they continue to face workplace and educational discrimination due to their different language and culture.

Japanese returning to Japan from Central and South America are the descendants of Japanese citizens that had emigrated to Central and South America. The number of such returnees increased dramatically in the latter part of the 1980's due to the labor shortage in Japan and the open-arms policy of the Japanese government. However, as a result of their different language and customs, they not only experience discrimination in employment and schooling, but are also subjected to discriminatory conduct in everyday life, such as denial of housing and denial of entry into retail establishments.

3. Control of expression, incitement and violence related to racial discrimination

(1) Need for criminal punishment of violent conduct in furtherance of racial discrimination

A. Conclusion and Recommendations

The Japanese Government should fulfill its obligations under Article 4 of the Convention irrespective of its reservation regarding that Article by enacting legislation imposing criminal penalties for the commission of violent acts with a racially discriminatory intent, so long as such legislation does not infringe on the rights to freedom of speech and freedom of assembly and association guaranteed in the Japanese Constitution.

B. The Government Report

The Government Report reports in Article 4 that while 'racially discriminatory expression is not generally punished', a certain class of conduct may be punished by criminal law. However, the report does not discuss any laws or policies that punish, compatible with the Constitution and reservations based thereon, racially discriminatory violent acts that may be punished based on their racially discriminatory nature.

C. Position of the JFBA

As pointed out in the Government Report, even where conduct constitutes conduct proscribed by Article 4(a) of the Convention, it may not be punished to the extent that it qualifies as expression protected by the constitutional guarantee of freedom of speech, and similarly, groups or activities thereof that would otherwise be covered by Article 4(b) of the Convention may not be prohibited so long as they comprise conduct included in the constitutional guarantee of freedom of assembly and association. As a result, when ratifying the Convention, the Japanese government made the following reservation: In applying the provisions of paragraphs (a) and (b) of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, Japan fulfills the obligations under those provisions to the extent that fulfillment of the obligations is compatible with the guarantee of rights to freedom of assembly, association and expression and other rights under the Constitution of Japan, noting the phrase 'with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention' referred to in Article 4. However, as indicated in the language in the reservation of the Japanese government stating that "Japan fulfills the obligations under those provisions to the extent that fulfillment of the obligations is compatible with the guarantee of rights to freedom of assembly, association and expression and other rights under the Constitution of Japan", the Japanese government has the obligation to implement effective measures under Articles 4(a) and 4(b) with regard to acts that fall outside constitutional guarantees.

For example, the infliction of physical injury to another, or the incitement to inflict such injury, which constitute "acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin" as described in Article 4(a), are not acts that fall within the guarantees set forth in the Constitution. In Japan, as noted by the Government Report, violence against Korean high school students is a frequent phenomenon.

To effectively prohibit and suppress such violent conduct having a racially discriminatory intent, it is not sufficient merely to address the problem through general criminal laws that prohibit violent acts having no particular discriminatory intent. Rather, a law that specifically prohibits and punishes violent conduct motivated by racially discriminatory intent is required.

(2) Absence of provisions regulating and punishing discriminatory expression by public officials

A. Conclusions and Recommendations

In order to fulfill its obligations under Article 2, paragraph 1(a) and Article 4 of the Convention, the Japanese government should investigate the need for a law that prohibits and punishes any form of racially discriminatory conduct carried out by a public official in the exercise of their official duties or under color of authority, such as racially discriminatory expression, dissemination of ideas based on racial superiority or hatred, or incitement of racial discrimination.

B. The Government Report

The Government Report entitled 'Prohibition of Discrimination by National and Local Public Authorities' under Article 2 reports that the government has 'informed' and 'requested' public officials regarding such prohibition, but does not indicate anywhere that the government has implemented specific legal measures imposing an obligation on public authorities to prohibit discrimination. The report also discusses in the section entitled 'Punishment of Dissemination, Incitement and Violence' under Article 4 the concept of 'violation of the principle of equal treatment by public officials', but there is no mention whatsoever of any laws or measures that apply to racially discriminatory expression, dissemination of ideas based on racial superiority or hatred, or incitement of racial discrimination by a public official.

C. Position of the JFBA

Under the Constitution, public officials possess the same basic human rights as others with regard to freedom of speech and freedom of assembly and association, but restrictions on the basic human rights of public officials have been approved to the extent that they are reasonable and minimally necessary to maintain their public authority and autonomy. At the same time, based on the duty to eliminate racial discrimination set forth in Article 2 of the Convention, states have a duty to ensure that public officials do not engage in racially discriminatory conduct in the course of performing their duties.

Consequently, because acts performed by public officials in connection with their official duties or under color of authority are not constitutionally protected, imposition of the restrictions sought in Articles 4(a) and 4(b) of the Convention does not infringe on the Japanese Constitution, and the Japanese government has an obligation to implement such restrictions irrespective of its prior reservation.

Public officials are prohibited from engaging in discrimination in certain limited situations such as hiring and dismissal. Article 27 of the National Civil Servant Law and Article 13 of the Local Civil Servant Law state that "All citizens shall be treated equally in regard to the application of this Law, and shall not suffer discrimination based on race, creed, sex, social status, lineage...political opinions or political affiliations," and public officials that violate this provision face possible imprisonment for not more than one year and a fine of not more than 20,000 yen (Article 109 of the National Civil Servant Law, Article 60 of the Local Civil Servant Law). However, there is no law that generally restricts or prohibits public officials from engaging in other types of discriminatory conduct or expression in the course of their duties or under color of authority, and that punishes offending public officials.

For example, on April 9, 2000, Shintaro Ishihara, the Tokyo prefectural governor, participated in memorial services for the Ground Self-Defense Force, to which he made the following statement:

As the divisional commander noted, on September 3rd of this year, the Ground, Maritime and Air Self Defense Forces will carry out a major exercise in which they will defend Tokyo, prevent disasters and provide disaster relief. Looking at Tokyo today, many sangokujin and other foreigners who have entered Japan illegally have repeatedly committed atrocious crimes. In Tokyo, the types of crimes committed have changed. This being the case, in the event of a major disaster, it is thought that even riots may break out. This is the current situation. In dealing with such a state of affairs, police have their limits. I hope you will not only fight against disasters but also maintain public security on such occasions. I hope you will show the Japanese people and the Tokyo people what the military is for in a state.

The expression 'sangokujin' identifies persons born in the former Japanese colonies of Korea, China and Taiwan, in the form of distinguishing the Axis countries that lost World War II from the winning Allied countries. The statement criticizes specific groups of foreigners, who are identified by race within the meaning of the Convention, as people that 'repeatedly commit atrocious crimes', seeks suppression through police as well as military action in order to combat 'disturbances' caused by these groups, and constitutes incendiary speech based on racial hatred. Despite this fact, governor Ishihara has not been investigated or received any punishment or sanction for violating any laws, including criminal laws.

To prevent such situations from occurring in the future, the need for a law that would regulate and punish racially discriminatory conduct and speech by a public official in the course of his official duties or under color of authority must be investigated.

4. Measures to remedy infringements of human rights

(1) Remedies by judicial organs

A. Conclusions and Recommendations

In order to enable victims of private racial discrimination to obtain effective and reliable relief through judicial organs, legislative measures must be adopted to confirm that (i) all types of racially discriminatory conduct will be invalidated, and (ii) racially discriminatory conduct can result in liability for damages under tort law.

B. The Government Report

The Government Report states in the section entitled 'Remedies by Judicial Organs' under Article 6 that where an act of racial discrimination violates the Civil Code, that Code may provide a remedy, and that "if racially discriminatory conduct constitutes a crime," a criminal prosecution may be filed. However, the report fails to discuss the extent to which victims of racial discrimination may obtain an effective remedy under civil or criminal law, nor does it address the existence of laws specifically designed to prevent racially discriminatory conduct or provide a remedy for such conduct.

C. Position of the JFBA

As noted in the Government Report, racially discriminatory acts "may be deemed null and void (Articles 1 and 90, the Civil Code). A person who violates the rights of others by racially discriminatory conduct must give compensation for any damage arising therefrom under certain conditions (Article 709)." However, these various provisions of the Civil Code are extremely general, and it is highly uncertain whether they apply to racially discriminatory conduct.

Article 1. All private rights shall conform to the public welfare.

　(2) The exercise of rights and performance of duties shall be done in faith and in

　(3) No abusing of rights is permissible.

Article 90. A juristic act which has for its object such matters as are contrary to public policy or good morals is null and void.

Article 709. A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefrom.

There are very few cases in which a court has applied these Civil Code provisions to provide a remedy for racial discrimination. The two cases relating to ethnic discrimination raised in the Government Report are essentially the only cases, but the very fact that such cases are so rare testifies to the difficulty of obtaining judicial relief for ethnic or racial discrimination. In addition, these decisions are cases involving ethnic discrimination occurring prior to Japan's ratification of the Convention, and it is by no means clear that Japanese courts will provide an effective and reliable remedy under the Convention for harm caused by racial discrimination. In a ruling issued by the Osaka District Court on June 18, 1993, the court held that a landlord's refusal to enter into a contract because the prospective lessee was a resident Korean was not a tortious act in and of itself, but that the refusal constituted a violation of good faith and fair dealing because the real estate agency at one point agreed to allow the prospective lessee to move in. In this case, if the refusal to enter into a contract had been based on ethnic discrimination where there had been no agreement, it is quite possible that no remedy would have been given.

To date there is only one decision issued after Japan's ratification of the Convention that orders the payment of damages for racially discriminatory conduct. In this case, the owner of a jewelry shop posted a sign on the front of the shop that said 'No Foreigners Allowed'. When a Brazilian woman entered the store, the owner told her to leave the store after inquiring about her nationality, and called the police. In the ensuing court case, the court awarded the woman 1.5 million yen as damages for the defendant's illegal racially discriminatory conduct. (Shizuoka District Court, Hamamatsu Branch, October 12, 1999.)

However, as discussed below in connection with the section regarding foreign nationals, while the custom of denying foreigners access to shops, bathing facilities and housing is widespread in Japanese society, with the sole exception of the case discussed above, there are no cases in which a court has provided a remedy for such discrimination. This indicates that the judicial system is not an effective means of relief, which is due to the fact that to a foreign national experiencing discrimination, the right to judicial relief is legally uncertain, the litigation process is extremely lengthy, and the amount of recoverable damages is low.

Accordingly, in order to make courts a more reliable avenue of relief for racial discrimination and thereby prevent discrimination between non-governmental parties, legislation should be enacted that invalidates all racially discriminatory acts and establishes that racially discriminatory conduct is illegal and can give rise to liability for damages.

(2) Need for domestic human rights bodies that perform investigations and provide relief and education

A. Conclusions and Recommendations

National human rights institutions that can effectively prevent and remedy racial discrimination through investigation, relief actions and education should be established.

B. The Government Report

The Government Report discusses in the section entitled 'Redress by the Administrative Organs' under Article 6 administrative remedies for racially discriminatory conduct, as well as remedies based on the Administrative Appeal Law and the Immigration Control and Refugee Recognition Act, and under the section entitled 'The Structure of the Human Rights Organs', mentions a system involving a Civil Liberties Bureau and Civil Liberties Commissioners.

C. Position of the JFBA

The Government Report discusses remedies by administrative organs as well as remedies for racially discriminatory conduct under the procedures established in the Administrative Appeal Law and the Immigration Control and Refugee Recognition Act, but these remedies involve only remedies for racially discriminatory administrative measures taken by administrative bodies, and do not prevent or provide redress either for any acts taken by administrative bodies other than such measures, or for private discrimination.

For the reasons explained below, the redress system based on the Civil Liberties Bureau and the Civil Liberties Commissioners established under the Ministry of Justice and mentioned in the Government Report does not effectively prevent or remedy racial discrimination. In Japan, civil liberties enforcement is carried out through the Civil Liberties Bureau of the Ministry of Justice and through the Legal Affairs Bureau, the various District Legal Affairs Bureaus and their branch offices, which comprise subsidiary organs of the Civil Liberties Bureau, and there is also a system of Civil Liberties Commissioners that supplements these government agencies. However, civil liberties enforcement by the Civil Liberties Bureau, which is an organ of the Ministry of Justice, is carried out by employees of the Ministry, who have no independence from the government. Furthermore, Civil Liberties Commissioners are private volunteers that are appointed by the Minister of Justice from among candidates recommended by local mayors and based on the opinions of the local bar associations. However, the position is treated largely as an honorary post, and a detailed understanding of human rights issues is not required. The commissioners average over 60 years of age, and simply cannot be expected to effectively deter or remedy infringements of civil liberties. According to a 'Nationwide Fact-Finding Investigation Regarding the Situation in Dowa Areas' carried out by the government (the General Affairs Agency) regarding so-called 'Burakumin', who have long been victims of discrimination in Japan, only 0.6% of human rights infringements involved 'consultation with a Legal Affairs Bureau or with a Civil Liberties Commissioner', which shows clearly that the Legal Affairs Bureau/Civil Liberties Commissioner system essentially does not function as a means to address violations of human rights.

Consequently, in order to effectively prevent and remedy racial discrimination through investigation, relief measures and education, it is essential that the government establish independent national human rights institutions that comprise salaried professionals who possess sufficient knowledge and experience in the area of human rights, including knowledge of international human rights standards, and that have a well-defined authority to investigate and remedy violations of human rights.

5. Human rights education

(1) School education

A. Conclusions and Recommendations

The Japanese government has failed to take immediate and effective measures to introduce school curriculums that serve as the equivalent of human rights education. This violates Article 7 of the Convention.

B. The Government Report

The Government Report touches on human rights education as a component of school education in paragraph 108, but does not describe any 'immediate and effective measures' as called for in Article 7 of the Convention.

C. Position of the JFBA

1) Article 7 of the Convention provides that:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to...propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

Furthermore, in General Recommendation V adopted by the Committee on the Elimination of Racial Discrimination, the Committee requested that each Government Report provide information regarding the 'immediate and effective measures' taken by the government in the areas of 'teaching and education', among others.

2) However, the Japanese Government Report lacks any specificity in this regard and does not discuss 'immediate and effective measures'. In fact, human rights education in Japanese elementary, middle and secondary schools in no sense qualifies as an 'immediate and effective measure', either qualitatively or quantitatively, and no comprehensive curricula have been established.

3) In June of 1998, the Committee on the Rights of the Child pointed out in paragraph 23 of its Concluding Observations regarding the First Government Report that "The Committee is concerned about the insufficient measures taken by the State party to introduce human rights education into school curricula in a systematic manner, in accordance with Article 29 of the Convention (on the Rights of the Child)." These Concluding Observations were issued with respect to the status of implementation of the Convention on the Rights of the Child, but they apply equally to the status of Japan's compliance with Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination.

(2) Human Rights Education for Persons in Special Occupations

A. Conclusions and Recommendations

1) The Japanese government does not provide human rights education for persons in special positions having a disproportionate impact on the realization of human rights in Japan, particularly judges, prosecutors, administrators and law enforcement officers. This is a violation of Article 7 of the Convention and General Recommendation XIII.

2) In order to discharge the obligations set forth in Article 7 of the Convention and in General Recommendation XIII, Japan must take actions designed to promote the 'immediate and effective' implementation of human rights education for persons in special occupations, employing all possible means such as the use of the 'professional training manuals' created by the Office of the United Nations High Commissioner for Human Rights.

B. The Government Report

There is no discussion of these issues in the Government Report.

C. Position of the JFBA

1) Article 7 of the Convention specifically describes the duty of States parties to provide human rights education, and General Recommendation XIII adopted by the Committee on the Elimination of Racial Discrimination points out the need for concentrated training of law enforcement officers in particular. Moreover, paragraph 24 of the Plan of Action for the United Nations Decade for Human Rights Education provides that "Special attention shall be given to the training of...other groups that are in a particular position to effect the realization of human rights," and makes clear the importance of human rights education for persons in particular occupations.

2) However, in Japan at present, other than the odd lecture or seminar, there is essentially no human rights education provided to persons in particular occupations, much less the concentrated training of law enforcement officers sought in General Recommendation XIII.

3) In November of 1998, the Human Rights Committee established under the International Covenant on Civil and Political Rights pointed out in paragraph 32 of its Concluding Observations regarding Japan's Fourth Periodic Report the need for human rights education for judges, prosecutors and administrators, recommending specifically that "Judicial colloquiums and seminars should be held to familiarize judges with the provisions of the Covenant. The Committee's general comments and the Views expressed by the Committee on communications under the Optional Protocol should be supplied to the judges." While this Concluding Observation was issued in connection with the status of implementation of the International Covenant on Civil and Political Rights, the content applies as well to the status of compliance with Article 7 of the Convention.

4) The United Nations Office of High Commissioner for Human Rights publishes 'professional training manuals' for persons in particular occupations deeply involved in human rights matters as a human rights teaching material. Professional training manuals aimed specifically at law enforcement officers, penal institution staff, judges, etc., exist or are in preparation, and these materials would be worth using in Japan as well.

(3) 'National Action Plan' and report of 'Council for Human Rights Promotion' regarding human rights education

A. Conclusions and Recommendations

In the 'National Action Plan' announced by the Japanese Government based on the U.N. 'Plan of Action for the United Nations Decade for Human Rights Education' and in the 'Report' of the Council for Human Rights Promotion, there is no specific provision for the 'immediate and effective measures' discussed in Article 7 of the Convention. The Japanese government should immediately draft and implement measures for a human rights education program, beginning with school curriculums and training of persons in special occupations.

B. The Government Report

The Government Report touches on this issue in paragraphs 42, 109 and 110, but its discussion is general and lacking in specificity, and there is no description of the 'immediate and effective measures' called for in Article 7 of the Convention and General Recommendation V.

C. Position of the JFBA

1) United Nations Decade for Human Rights Education

After the need for human rights education was identified at the World Conference on Human Rights in Vienna in 1993, the General Assembly in 1994 decided to establish a 'United Nations Decade for Human Rights Education', and a detailed 'United Nations Plan of Action' was announced for the United Nations Decade for Human Rights Education, which would run from 1995 to 2004. Based on this plan, the Japanese government established a Cabinet-level 'Headquarters for Promotion of U.N. Decade for Human Rights' (Cabinet Promotion Headquarters) and in 1997 announced a 'National Action Plan'. However, this 'National Action Plan' is quite vague, and contains no 'immediate and effective measures' as required by Article 7 of the Convention. Furthermore, the implementation of the 'National Action Plan' was to reflect the results of the investigation of the 'Council for Human Rights Promotion' (the 'Report'), but as described below, the subject matter of the report of the 'Council for Human Rights Promotion' is limited to human rights problems between private individuals, and the report cannot be reflected in the implementation of the 'National Action Plan'.

2) Law for Promotion of Measures for Human Rights Protection and Progress of Council for Human Rights Promotion

In December of 1996, Japan enacted a 'Law for Promotion of Measures for Human Rights Protection' under which the government assumed the obligation to promote measures relating to ① education and inculcation to deepen mutual popular understanding of the concept of human rights (first issue) and ② remedies for victims of human rights violations (second issue), and established a 'Council for Human Rights Promotion' pursuant to this Law. The Council subsequently held 29 meetings between May 1997 and July 1999 with regard to the first issue, and on July 29, 1999, issued its report. However, because this report was restricted to the issue of human rights problems between private individuals, it spent only four lines to mention in passing the existence of the Concluding Observations regarding the review of Japan's Fourth Periodic Report (November 1998) in connection with the International Covenant on Civil and Political Rights and regarding the review of Japan's First Periodic Report (June 1998) on the Convention on the Rights of the Child, and completely ignored the Convention on the Elimination of All Forms of Racial Discrimination.

Chapter 2: Permanent Foreign Residents

1. Nationality designation of North and South Koreans for alien registration purposes

A. Conclusions and Recommendations

The Japanese government should abolish the current nationality designation of resident Koreans for purposes of alien registration as 'South Korea' (KANKOKU) and 'Korea' (CHOUSEN), and should harmonize the designation of both groups.

B. The Government Report

While the Government Report states in paragraph 23 that "Korean residents are divided into those who have obtained the nationality of the Republic of Korea of their own will and those who have not, under the current circumstances in which the Korean Peninsula is divided into the Republic of Korea and the Democratic People's Republic of Korea," the Japanese government fails to mention that the nationality designation scheme used for alien registration classifies resident Koreans (those who, as a result of Japan's colonial rule over the Korean peninsula and Taiwan, were forced to live in Japan, as well as their descendents, many of whom have special permanent resident status) as either 'South Korea' or 'Korea'.

Ｃ．日弁連の意見

After the war, North and South Koreans were required under the Alien Registration Decree issued and implemented as of May 2, 1947 to register as alien residents of Japan. The nationality designation of resident North and South Koreans for purposes of alien registration was unified as 'Korea', and this unified designation remained in effect even after the Korean peninsula was divided in 1948 into the 'Republic of Korea' and the 'Democratic People's Republic of Korea'.

Since then, the government has decided to indicate the nationality designation of a resident Korean as 'South Korea' if he or she filed a notice indicating he or she registered 'South Korea' in the item of nationality together with a supporting document, such as a nationality certificate issued by the government of the Republic of Korea, and this is still the case even now.

However, with respect to alien registration of nationals from other divided states, the Japanese government has never made any sort of distinction regarding the nationality designation for alien registration purposes, and does not to this day.

Indeed, the nationality designation of resident Chinese is classified simply as 'China' whether they were born in the People's Republic of China or in the Republic of China (Taiwan), and when Germany was divided into East Germany (the German Democratic Republic) and West Germany (the German Federal Republic), the nationality designation of nationals from either state was categorized simply as 'Germany'.

Only in the case of resident Koreans does the Japanese government use a split nationality scheme for purposes of alien registration.

The Japanese government has used this bifurcated nationality designation of Korean residents for alien registration purposes in order to confer permanent residency eligibility on persons designated as being from 'South Korea', but not on persons designated as being from 'Korea'.

Recently as well, in the 146th ad hoc session of the Diet, some members of the ruling party submitted a bill to the House of Representatives that would confer the right to vote in local elections to resident Koreans whose nationality designation is 'South Korea' while excluding resident Koreans whose nationality designation is 'North Korea'. In this case, the use of the alien registration nationality classifications of 'South Korean' and 'North Korean' has gone beyond a mere designation issue and has given rise to disparities in the actual treatment of persons falling into these different categories.

These disparities clearly constitute discriminatory treatment on the basis of race or ethnicity that was never applied to foreign nationals of China, Germany or any other divided nation, and violate Article 2, paragraph 1(a) of the Convention, which prohibits discrimination by "all public authorities and public institutions, national and local."

Therefore, the distinction between 'South Korea' and 'Korea' for alien registration purposes should be abolished and a unified designation scheme immediately adopted.

2. Prohibition of discrimination by 'all public authorities and public institutions, national and local'

A. Conclusions and Recommendations

In order to comply with Article 2, paragraph 1(a) and Article 4(c) of the Convention, the Japanese government should enact a law prohibiting public officials from engaging in racially discriminatory expression, the dissemination of any ideas based on racial superiority or hatred, or incitement to racial discrimination, and punishing such conduct.

B. The Government Report

The Government Report in the section of Article 2, citing various provisions of the Constitution and the Local Government Law, states that the people are guaranteed to be free from discrimination by the national government or local public entities on the basis of race, etc., and claims that the respect for human rights is the most basic principle followed by public officials. However, in fact, the Tokyo governor has made statements encouraging or inciting racial discrimination, and his conduct has been ignored.

C. Position of the JFBA

(1) On April 9, 2000, at a ceremony commemorating the establishment of the First Division of the Ground Self-Defense Force, Tokyo governor Shintaro Ishihara stated as follows (this statement will be referred to hereinbelow as the 'Ishihara statement'):

Looking at Japan today, many sangokujin and other foreigners who have entered Japan illegally have repeatedly committed atrocious crimes. In Tokyo, the types of crimes committed have changed. This being the case, in the event of a major disaster, it is thought that even riots may break out. This is the current situation. In dealing with such a state of affairs, police have their limits. I hope you will not only fight against disasters but also maintain public security on such occasions. I hope you will show the Japanese people and the Tokyo people what the military is for in a state.

The Ishihara statement amounts to a prefectural governor, who has the right to ask the Prime Minister for military mobilization under Article 81, paragraph 1 of the Self-Defense Forces Law, calling on the Self-Defense Forces to engage in military suppression of resident foreigners in Japan, including permanent residents. It symbolizes the xenophobic element of Japanese society, and calls to mind the thousands of Koreans killed during the Great Kanto Earthquake of 1923.

(2)As pointed out in the 'Request' issued by the JFBA on August 31, 2000, the Ishihara statement "is equivalent to an act of 'racial discrimination' as provided in Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination, and may well violate the obligation of a State Party to not permit any local public authority to promote or incite racial discrimination," and represents "a violation of the basic human right of resident Chinese and resident Koreans to live happily and in peace, free from discrimination." (Preamble, Article 13 and Article 14, paragraph 1 of Constitution of Japan)

This 'Request' also stated that "with regard to your use of the term 'Sangokujin' at the April 9, 2000 commemoration ceremony for the First Division of the Ground Self-Defense Force, where you stated to the effect that 'because many sangokujin and foreigners who have entered the country illegally will engage in large riots in the event of a serious disaster, I will call for peacetime mobilization of the Self-Defense Forces in such an event,' after receiving applications for human rights relief and investigating, we ask that you not repeat such racially discriminatory statements in the future."

(3) However, in the issue of the 'Shukan Today' published immediately before this 'Request' was sent to governor Ishihara (the September 2, 2000 issue), governor Ishihara was quoted as follows:

There are innumerable things that must be done in Tokyo. I must think about public order. If there were a major disaster, some of the illegal foreigners in Shinjuku and Ikebukuro would take advantage of the confusion, and you don't know what they would do. Right now, people who have committed two or more crimes serve time in Fuchu prison. Of the prison capacity of 2000 inmates, well over four hundred are sangokujin or foreigners. By the way, 'sangokujin' is not a discriminatory term. If it couldn't be used, the Ministry of Foreign Affairs would have problems. I understand that this was discussed and approved by the Cabinet.

On April 19 of that year, governor Ishihara, in a letter delivered to the Democratic Party in the Tokyo Metropolitan Assembly, stated that "I referred to foreigners who have illegally entered the country as illegal sangokujin....Because I do not wish to offend foreigners in general, I will do my best in the future to refrain from using inappropriate terms that easily invite misunderstanding." However, the 'Shukan Today' article shows that governor Ishihara's explanation has no credibility.

In addition, in his book entitled 'Confidential Report' published in 1973, governor Ishihara referred to areas in which large numbers of resident South and North Koreans live as 'sangokujin buraku' and to ethnic organizations of South and North Koreans as 'sangokujin alliances' and 'sangokujin confederations', demonstrating that his explanation for using the term was false.

Moreover, in a program on Asahi Television ('Sunday Project') aired on the 16th of that month, governor Ishihara referred to North Korea using the discriminatory term 'Hokusen'. Although the 'Committee for Education Regarding Resident Koreans in Hyogo Prefecture' asked governor Ishihara for an apology, he did not so much as respond.

(4) Under these circumstances, and given governor Ishihara's age and experience, it is clear that Ishihara used the term 'sangokujin' with full knowledge that it was a discriminatory term referring to resident Chinese and Koreans who were born in the former Japanese colonies or who are descendants thereof, that he engaged in unquestionably racially discriminatory conduct, and that there is a high probability that he will behave this way again regardless of the JFBA's request.

(5) The JFBA 'Request' referred to in section (1) above was issued in response to an application for civil rights relief presented to the Human Rights Committee of the JFBA on April 13, 2000 by four resident South and North Korean lawyers. On the same day, these lawyers petitioned for civil rights relief from the Tokyo Legal Affairs Bureau. In response to the petition, on October 20, 2000 the Tokyo Legal Affairs Bureau, without the benefit of any investigation or interviews, notified the petitioners of its determination:

The statement of Tokyo governor Ishihara pertaining to your petition indicated the political belief of the governor that among the foreign nationals that have illegally entered Japan, a not insignificant number have committed reprehensible crimes, that some of these persons might cause large riots in the event of a major disaster, and that he hoped that the Self-Defense Forces would assist in the maintenance of public order. In this context, and given governor Ishihara's previous explanation that he used the term 'sangokujin' in the sense of 'foreign national', we have determined that he was not using the term to refer to resident Koreans or resident Chinese, and that he did not possess any particular discriminatory intent toward such persons. Therefore, we do not find that the use of the term 'sangokujin' violated the civil rights of resident Koreans or resident Chinese, and we cannot agree that governor Ishihara's statement brought into possible danger the lives or persons of such persons through the peacetime mobilization of Self-Defense Forces during a large disaster. [Complete text] This determination is in conflict with the determinations of the JFBA's Request described in section (2) above, and utterly fails to consider the facts set forth in sections (3) and (4) above.

(6) The statements by Tokyo governor Ishihara referred to above violated Article 4(c) of the Convention, under which States Parties "shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination," and the failure of a country to take action against such statements constitutes a violation of Article 2, paragraph 1 of the Convention, under which States Parties "undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms."

3. Discriminatory language, behavior and violence directed at female students at Korean schools

　This issue is discussed in 'Chapter 9: Double Discrimination Against Females'.

4. Political rights

A. Conclusions and Recommendations

The Japanese Diet should give resident Koreans, by virtue of their status as local residents, the right to participate at least in local politics (the right to elect and be elected as members and leaders of their local assemblies).

B. The Government Report

The Government Report states in paragraph 24 that because resident Koreans do not have Japanese nationality, they are not given rights that are not conferred on other foreign nationals, such as the right to vote, and that they are treated in basically the same manner under Japanese law as other foreign nationals. The report further notes in paragraph 67 that some local governments have established a 'foreign citizens representative council' that can deliberate and give opinions on local governmental measures affecting foreigners, and that some local governments have reserved a fixed number of seats for foreigners in these councils.

C. Position of the JFBA

Before the war, resident Koreans and Taiwanese were considered 'Imperial subjects', and male Koreans and Taiwanese living in Japan had the right to vote and be elected to the House of Representatives.

In December of 1945, the Japanese government stripped Koreans and Taiwanese of the right to vote, and in May of 1947 it implemented the Alien Registration Decree and required them to register with the government as foreign nationals, based on the principle that 'for the time being, they will be regarded as foreigners'.

Since the entering into force of the Treaty of Peace with Japan (San Francisco Peace Treaty) on April 28, 1952, and as a result of the treaty, all persons residing in Japan that were born in the previous colonial territories, such as Koreans, lost 'Japanese nationality', and therefore became regarded as 'foreigners'. This interpretation was issued by the Justice Office (the current Ministry of Justice) in the 'Notice From Director of Civil Bureau' (Civil Ko 438, April 29, 1952).

However, there is no direct mention of changing nationality in the Peace Treaty, and the measure mentioned above was arrived at independently by the Japanese government.

In this way, the post-war Japanese government unilaterally declared that resident Koreans were stripped of Japanese nationality, and deprived them of the right to vote in House of Representatives elections or be elected thereto. However, at the same time, although resident Koreans and their descendants are compelled to live and pay taxes in Japan as a result of Japanese colonial rule, they are assigned a status under which they are forced to be completely submissive to the political decisions of the Japanese government.

In actual fact, there are already fifth or sixth generation Koreans living in Japan who have obtained permanent residency and are living peacefully as stable members of Japanese society.

The Japanese government has taken no steps to give these resident Koreans, who currently have no political rights, any of the various rights attendant to participation in Japanese political life (the foreign citizens representative councils established by local governments are simply mechanisms by which the opinions of foreigners are conveyed to local governments, and at best comprise mere consultative bodies).

Considering that Koreans living in Japan were forced to live in Japan and now have permanent residency status as a result of Japanese colonial rule, and at present comprise active members of Japanese local society, they should be given the right to participate at least in local government, which would serve as a means by which the opinions of resident Koreans could be reflected in local politics.

The Supreme Court has also ruled that it does not violate the Constitution to give foreign permanent residents the right to vote in elections for local public officials, stating as follows:

The provisions of Chapter 8 of the Constitution pertaining to local politics are interpreted as seeking to guarantee such political form as a Constitutional system, because in light of the importance of local politics in a democratic society, public affairs having a direct relationship to the everyday lives of citizens are handled by local governmental bodies in these regions based on the opinions of these local residents, and therefore it is appropriate to find here that, in order to represent the opinions of those foreign citizens who are permanent residents and are recognized to have particularly close relationships with the local governmental bodies in their region in the handling of public affairs by their local government, which has a close relationship with their everyday lives, the adoption of a legal measure that would confer the right to elect leaders and members of local governmental bodies is not prohibited by the Constitution. (Minshu Vol. 49, p. 639, February 18, 1995)

Regarding the right to hold elective office, the Osaka District Court ruled on May 28, 1997 that the Diet has the discretion to decide whether to grant foreign permanent residents the right to hold office in local governmental bodies, and that there was no constitutional impediment to giving foreign nationals having permanent residency status the right to participate in local politics. In light of all these circumstances described above, such as that (1) resident Koreans and their descendants are compelled to live in Japan and are actually living as stable members of Japanese local society, that (2) after the war were stripped of their Japanese nationality and were unilaterally deprived of the right to participate in national politics, and that (3) the courts ruled that it does not violate the Constitution to give foreign permanent residents the right to participate in local politics, considering that Article 5(c) of the Convention, which guarantees the right to "take part in the Government as well as in the conduct of public affairs at any level," expresses a fundamental principle of democracy, resident Koreans who are active members of Japanese local society should be given the right to participate at least in local politics.

5. Right to work as civil servant

A. Conclusions and Recommendations

The Japanese government should take immediate measures to abolish the treatment that bars resident Koreans from appointment to civil service based on the vague standard of whether the work involves the exercise of public power or participation in public decision- making.

B. The Government Report

The Government Report states in the section entitled 'The Right to be Employed in Public Office' under Article 5 (paragraph 68) that "Japanese nationality is required for civil servants who participates (sic) in the exercise of public power or in public decision-making." The Japanese government treats resident Koreans as foreigners in this respect, and employs this restriction to bar them from appointment as civil servants.

C. Position of the JFBA

The Foreign Civil Service Law excludes "persons having no nationality or foreign nationality" (Article 7, paragraph 1), but the National Civil Service Law and the Local Civil Service Law do not restrict qualification as a civil servant to Japanese nationals.

However, the Japanese government has adopted a policy that "Japanese nationality is required to become a civil servant that involves participation in the exercise of public power or in public decision-making," and has adopted the stance that foreigners may be appointed only to purely technical positions. As a result, foreigners are barred by National Personnel Authority Rule 8-18 from taking the competitive civil service exam based on which general national civil service appointments are made. Therefore, resident Koreans and other foreign nationals have not been appointed as national general civil servants.

Furthermore, many local public entities have determined on their own that Japanese nationality is required to sit for the civil service exam leading to appointment as a local civil servant, and restrict the right to take the exam to Japanese citizens by refusing to accept applications by foreigners (as of April 1, 1997, only two prefectures and four cities, namely, Kanagawa and Kochi prefectures, and the cities of Kawasaki, Yokohama, Osaka and Kobe, have abolished the nationality requirement, subject to specific conditions).

The right of resident Koreans and other resident foreign nationals to work in the civil service is a basic human right guaranteed at minimum as part of the right to select one's profession. This restriction on the fundamental human rights of foreign nationals, which comprises seriously discriminatory treatment and at the same time was based not on the will of the legislature, but solely on the opinions of administration, is impermissible.

Furthermore, the standard of whether work 'involves participation in the exercise of public power or in public decision-making' is unclear, and may encompass all types of work. The national government has determined with regard to the hiring of foreign nationals as local civil servants that "It is not appropriate to generally recognize the right of foreigners to take an exam leading to appointment as a civil servant who is expected to assume in the future a capacity in which they will exercise public power or participate in the decision-making of a local public entity" (Ministry of Home Affairs, 1973), and at present, the government is giving guidance to all local governments that the hiring of foreign nationals for general administrative positions and general technical positions in local government is basically not permitted.

However, such a general restriction on the appointment of resident Koreans to the civil service on the basis of their lack of Japanese nationality has no rational basis, given that (1) the Japanese state conferred Japanese nationality on resident Koreans during the colonial period and then stripped them of their Japanese nationality after the war without seeking their opinion, and (2) when colonial rule ended, resident Koreans were forced to continue to live in Japan, they legally obtained permanent resident status, and they are now fully subject to the powers of the Japanese state.

Even if the formal possession of nationality were required for civil service appointment based on the principle of popular sovereignty, the definition of 'civil servant' in such a scenario should be limited to positions that are directly involved in the making of public decisions or that involve the discretion to significantly affect these decisions.

In a November 26, 1997 decision of the Tokyo High Court involving a case in which second generation Koreans were denied an opportunity to take the Tokyo metropolitan government's managerial position promotion exam because they were foreign nationals, the court ruled that constitutional guarantees applied to the extent that resident foreigners could be appointed to certain positions in both the national and local civil service. The court determined that there were a large number of positions for which foreigners were eligible in local civil service in particular, and that foreign nationals could qualify for management-level positions as well. The court concluded that it was improper to bar foreigners from management-level positions as a general principle, and that depriving foreign nationals from the opportunity to take the exam amounted to an unconstitutional closing of the route to job advancement to a management position.

Moreover, under the provisions of Chapter 8 of the Constitution (Local Autonomy), the court further regarded as 'desirable' for resident Koreans, who among the foreigners living in Japan have perhaps the strongest ties to their neighborhoods and the closest connections to their local governments, to have their opinions reflected in the operation of their local governments and to participate themselves in the workings thereof.

Based on the principles outlined above, it is apparent that the exclusion of resident Koreans from civil service appointment based on the vague standard of whether the position is involved in the exercise of public power or in participation in public decision-making constitutes discriminatory treatment in violation of the right to work and the right to free choice of employment as set forth in Article 5(e)(i) of the Convention, and should be immediately abolished.

6. Duty to carry Alien Registration Card at all times

A. Conclusions and Recommendations

The requirement that resident Koreans who have permanent residency status carry an Alien Registration Card on their persons at all times, and the imposition of administrative penalties for failure to do so, violates Article 5(d)(i) of the Convention (freedom of movement). The Japanese government should immediately abolish this system.

B. The Government Report

The Government Report does not mention in the section entitled 'Freedom of Movement and Residence' under Article 5 (paragraph 69) that resident Koreans who have permanent residency status must carry an Alien Registration Card on their persons at all times, and that administrative penalties are imposed for failure to comply with this requirement.

C. Position of the JFBA

The Japanese government requires resident Koreans who have permanent residency status to carry an Alien Registration Card on their persons at all times, and imposes administrative penalties in the event they fail to do so. At present, 95% of resident Koreans were born in Japan and are at least second-generation Koreans. Resident Koreans are no different from Japanese in that they are living peacefully in Japan and have a clear social identity and resident status. Japanese, however, are not required to carry with them proof of identity.

The U.N. Human Rights Committee, in its Concluding Observations regarding Japan's Fourth Periodic Report, recommended once again that Japan abolish the discriminatory law that imposes discriminatory criminal punishment by imposing criminal penalties on permanent residents that fail to carry proof of alien registration on their persons at all times. In 1999, the Japanese government amended the law to abolish criminal penalties for non-compliance, but failure to carry proof of alien registration may still be punished through administrative sanctions, which means that discriminatory treatment has by no means been eliminated.

7. Problems with the re-entry permit system (Article 5(d)(ii))

A. Conclusions and Recommendations

In administering the re-entry permit system under Article 26 of the Immigration Control and Refugee Recognition Act, the government must not infringe on the right of resident Koreans having permanent resident status to leave and re-enter the country freely.

B. The Government Report

The Government Report's sole discussion of this issue involves a special validity period for a re-entry permit (paragraph 28).

C. Position of the JFBA

Article 5(d)(ii) of the Convention guarantees, without distinction, the enjoyment of "the right to leave any country, including one's own, and to return to one's country."

Japan's Immigration Control and Refugee Recognition Act allows foreigners who obtain a re-entry permit before leaving Japan to re-enter Japan without losing their right to reside in the country (Article 26 of the Act). The granting of a re-entry permit is left to the unfettered discretion of the Minister of Justice. Because foreign nationals who leave the country without obtaining a re- entry permit lose their right to remain in the country, and there is no guarantee that they will be able to re-enter Japan on their return, for foreigners whose lives are based in Japan, the key factor in determining whether or not they can make trips outside Japan is whether or not they are able to secure a re-entry permit.

The vast majority of Koreans living in Japan have permanent residency, were born and raised in Japan, and plan to live in Japan for the rest of their lives. For permanent residents such as these, entrusting the issuance of a re-entry permit to the absolute discretion of the Justice Minister amounts to a significant infringement of the right of such persons to freely leave and re-enter the country. Because the lives of permanent residents are based in Japan and the 'right to return to one's country' is interpreted as including the 'right to return to one's country of permanent residence', permanent residents should have the right to freely leave and re-enter their country of residence. Entrusting the granting of a re-entry permit to the complete discretion of the Minister of Justice constitutes a violation of this 'right to return to one's country'.

Particularly for the overwhelming majority of Koreans living in Japan who were born and raised in Japan and as a practical matter plan to spend the remainder of their lives in Japan, Japan is more the 'one's country' referred to in Article 5(d) of the Convention than their actual country of nationality, and there is no rational ground for treating them differently with respect to the 'right to return to one's country' than persons having Japanese nationality.

Incidentally, quite recently, in a case in which a Korean who was born and raised in Japan and possessed permanent resident status was denied a re-entry permit because he refused to be fingerprinted, the Supreme Court held that because the Minister of Justice has wide discretion in determining whether to grant a re-entry permit, it could not be said that the denial of a re-entry permit illegally exceeded the minister's scope of authority or constituted an abuse of discretion (Supreme Court decision of April 10, 1998).

This type of treatment by the Japanese government and the courts of Koreans permanently residing in Japan constitutes conduct in violation of Article 5(d)(ii) of the Convention, and must be changed immediately.

Furthermore, in regard to this problem, the U.N. Human Rights Committee, in its Concluding Observations adopted in 1998 regarding Japan's Fourth Periodic Report, has strongly urged that the Japanese government abolish the requirement that permanent residents such as resident Koreans obtain re-entry permits, but so far the Japanese government has taken no action in response to the Committee's recommendation.

8. Rights regarding nationality

A. Conclusions and Recommendations

Persons born in former Japanese colonies, such as resident North and South Koreans, were treated as having lost their Japanese nationality at the time that the San Francisco Peace Treaty went into effect, but the Japanese government should investigate the feasibility of giving such persons an opportunity to adopt Japanese nationality.

B. The Government Report

The Government Report does not discuss in detail the circumstances surrounding the loss of Japanese nationality by persons born in former colonies, such as resident North and South Koreans, nor does it mention the discriminatory treatment meted out to such persons on the ground that they lack Japanese nationality.

C. Position of the JFBA

Persons born in the Korean peninsula and Taiwan during the time that they were subject to Japanese colonial rule as colonial territories, as well as their descendants, were considered citizens (at the time, subjects) of Japan under Japanese law.

After the war, the Japanese government amended the House of Representatives Election Law in December of 1945, and barred these persons from participating in Lower House elections. On May 2, 1947, the government decreed in the 'Alien Registration Decree' (Imperial Edict 207) that "Taiwanese and Koreans shall for the time being be regarded as foreigners under this edict," and for the first time required them to register as foreign nationals.

Furthermore, the government issued a notice to the effect that as of April 28, 1952, the date the San Francisco Peace Treaty entered into force, it would unilaterally began to treat persons born in the former colonies, such as resident Koreans and Taiwanese, as having lost their Japanese nationality.

However, the San Francisco Peace Treaty contained no provisions regarding the nationality of persons born in former colonies, this policy of the government was implemented based on a directive issued by an administrative body, and the treatment imposed by the policy violated Article 10 of the Japanese Constitution, which provides that the granting or divesting of nationality must be implemented pursuant to law enacted by the legislature.

In European countries, after colonies attained independence, the nationality issue was dealt with in a way that respected the desires of the former colonial subjects. For example, a person born in a former colony but living in the former suzerain state was given either dual nationality or the option of the nationality of either country, such as in the case of the former West Germany, which in the 1956 Nationality Issue Regulation Law decreed that the German nationality that had been conferred on all Austrians when it was annexed by Germany would be eliminated on the day before Austria's independence, but that Austrians living in Germany would be able to restore their German nationality through a declaration of intent, i.e., it gave them the right to choose their nationality.

By contrast, Japan unilaterally stripped Japan-resident persons born in former colonial territories, such as resident South and North Koreans, of their Japanese nationality.

As a result, resident Koreans and other persons born in former colonies have the status of foreigners and are treated in the same manner as foreign nationals in general.

At present, resident Koreans experience various types of systematic discrimination as described in this report, most of which is based on the fact that resident Koreans are legally foreign nationals lacking Japanese nationality. Furthermore, most Koreans currently residing in Japan were born in Japan and have permanent resident status, and as a practical matter their bonds to the country of nationality have weakened.

Based on the facts and circumstances behind their loss of Japanese nationality, and in light of the systematic discrimination that they currently experience, Japan's refusal to recognize the right of resident Koreans to choose their country of nationality constitutes discriminatory treatment in violation of Article 5(d)(ii) guaranteeing the right to nationality.

Furthermore, because the current 'naturalization' system governing nationality requires an independent means of living, and because approval or denial rests with the discretion of the government, the Japanese government's discriminatory treatment of resident Koreans regarding the obtaining of Japanese nationality cannot be justified by the existence of the naturalization system.

9. Recognition of Korean schools (Article 5(e)(v))

A. Conclusions and Recommendations

The Japanese government does not offer the same recognition of students and graduates of Korean schools that it provides to students and graduates of equivalent Japanese elementary and secondary schools and universities, which constitutes discrimination in violation of Article 5(e)(v) of the Convention, and it should immediately end this discriminatory treatment.

B. The Government Report

Most of the Korean residents who do not wish to be educated in Japanese schools attend North/South Korean schools. Most of these schools have been approved by prefectural governors as miscellaneous schools. However, because no specific legal provisions have been stipulated on the educational content of these schools, and because it is difficult to confirm that the graduates of these schools have an academic ability equal to or higher than that of graduates of regular high schools, these graduates are not considered to meet college entry qualifications. The Ministry of Education, Science, Sports, and Culture will decide to ease the qualification for taking the University Entrance Qualification Examination in September 1999 so that students studying in foreign schools in Japan can institutionally have a chance to enter Japanese universities. In addition, the Ministry will also decide in August 1999 to ease the qualification for entering Japanese graduate schools so that even persons who have not graduated from universities will be able to enter them through the examination of his/her research ability conducted in the graduate schools concerned. [Footnotes omitted]

C. Position of the JFBA

In every region of Japan, Korean schools have been established as educational corporations in order to maintain and further ethnic education regarding the culture, history, language, etc. of the Korean people. Although some of these schools are teaching curricula equivalent to those of Japanese elementary and secondary schools and universities, the Japanese government refuses to provide the same recognition of students and graduates of these Korean schools that it provides to students and graduates of equivalent Japanese elementary and secondary schools and universities on the blanket ground that they are not schools within the meaning of Article 1 of the School Education Law, and does not allow them to take government-approved exams that confer legally recognized qualifications.

In the case of universities, graduates of Korean high schools are not allowed to sit for the entrance exams of many Japanese universities. None of the 95 national universities allows Korean high school graduates to take its entrance exam, 30 of the 57 prefectural or municipal universities allow Korean students to sit for the university's entrance exam, and 220 of the 431 private universities permit them to do so. This means that Korean high school students wishing to attend a national university, or a prefectural/municipal or private university that refuses to allow Korean school students to sit for the entrance exam, must obtain a university entrance qualification certification ('daiken'). Recently, a certain degree of improvement has been seen with regard to equal treatment regarding commuting passes for school attendance at Korean elementary and secondary schools, as well as with regard to participation in school athletic festivals, but nevertheless, the government's refusal on technical grounds to give full and equal recognition to the students and graduates of Korean schools that are essentially equivalent to Japanese schools is a violation of Article 5(e)(v) of the Convention.

The JFBA adopted the investigative report of the Human Rights Promotion Committee in December of 1977, and based thereon, recommended in February of 1988 that the government promptly eliminate this situation, but as yet the government has taken no action.

In addition, in June of 1998, the Committee on the Rights of the Child, in its Concluding Observations adopted following review of the First Periodic Report of the Japanese government, expressed its concern about the fact that resident Korean children received unequal treatment in their access to higher education, and urged an end to all types of discriminatory treatment of children belonging to ethnic minorities, such as Korean children. Furthermore, in November of that year, the U.N. Human Rights Committee, in its Concluding Observations following review of Japan's Fourth Periodic Report, expressed its concern about Japan's failure to recognize Korean schools, but since then the government has taken no steps to rectify the problem.

10. Financial assistance to Korean schools

A. Conclusions and Recommendations

The Japanese government should adopt measures to financially assist Korean schools that are providing ethnic education.

B. The Government Report

The Government Report does not discuss financial assistance to Korean schools.

C. Position of the JFBA

Because the schools eligible for financial assistance under Article 2 of the Private School Promotion and Assistance Law are those defined in Article 1 of the School Education Law, Korean schools are ineligible to receive private school education funds under Article 4 (assistance accounting for no more than one-half of operating costs pertaining to research and education for universities and special secondary schools), Article 8 (student loans made by the school for student educational expenses) and Article 9 (assumption by national government of portion of assistance provided to elementary schools by local governments), which are the main forms of assistance provided under that Law.

Under Article 18 of that Law, Korean schools are recognized as quasi-schools, and are eligible for financial assistance under the category of 'other school' pursuant to Article 64, paragraph 4 of the Private School Law.

Local governments distribute funds to private elementary and secondary schools recognized as private schools under the Private School Promotion and Assistance Law in each fiscal year, and the national government assumes a portion of that assistance through a foundation established under the Japan Private School Promotion Foundation Law. Because the amount of assistance provided to private schools is determined by the local governments, it is not uniform, but the amount of assistance given to Korean schools at all levels is roughly ten percent of the amount given to schools qualifying under Article 1 of the School Education Law.

Regarding Korean and other universities for foreign nationals, because the law pertaining to assistance for private universities does not apply to these institutions, there is no distribution by the national government of subsidies corresponding to those provided to private universities.

As a result, the burden on parents is increasing, and the state of educational facilities for children is inferior relative to general schools attended by children having Japanese nationality. Furthermore, the salaries of teachers and school staff are lower, and education is being maintained only at the cost of the teachers and staff, who feel a deep affection and even a sense of mission with regard to preservation, succession and development of ethnic education, as well as their students.

It is clear that, as described above, Korean elementary and secondary schools and universities, as well as their students, parents, teachers and staff, are at a severe financial disadvantage and are subject to grossly unfair treatment by the national and local governments in comparison with private schools and universities.

This unquestionably represents discriminatory treatment of resident Koreans who attend Korean schools, as well as their parents, which in turn constitutes a violation of Article 5(e)(v), which prohibits discriminatory treatment in the enjoyment of the right to receive an education.

11. Systematic and organizational measures regarding ethnic education classes in public schools

A. Conclusions and Recommendations

The Japanese government should adopt measures to systematically establish and maintain ethnic education classes in public schools for resident Koreans, and to clearly guarantee that teachers of ethnic education constitute teaching staff in full standing.

B. The Government Report

The Government Report (paragraph 30) states that (1) the Japanese government is instructing local governments to ensure that extracurricular study of the Korean language and culture can be continued without any difficulties, and (2) actually several local public entities offer such educational opportunities.

C. Position of the JFBA

While Korean history, culture and language are not generally taught in public elementary and secondary schools, ethnic education classes have been established in a few public elementary and middle schools in areas of Osaka, Kyoto, Hyogo, Tokyo and Kanagawa prefectures that have relatively large populations of resident Koreans. Most of the ethnic education classes are run by the schools themselves, and the classes are not necessarily integrated into the curriculum in a systematic and organized fashion.

There are also disparities among schools, such that one school in a region may offer ethnic education classes while another school a short distance away may not. Furthermore, even in schools that have set up ethnic education classes, the local government sometimes does not indicate clearly whether it regards the classes as part of the school curriculum or whether the teachers of such classes are considered part of the school staff.

In light of the duty under Article 5(e)(v) of the Convention to provide equal treatment in the enjoyment of the right to receive an education, and the duty under Article 2, paragraph 2 to take, in the cultural field, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging thereto, the Japanese government must systematically and in an organized manner incorporate ethnic education into the school curriculum, and must guarantee the official status of ethnic education instructors.

12. National pension system

A. Conclusions and Recommendations

Because the fact that elderly persons (persons born on or before January 1, 1926) and disabled persons (persons 20 years of age or older who were disabled as of January 1, 1982) who are resident Koreans may not participate in the national pension scheme, and do not receive elderly welfare benefits or disability basic pension benefits (the portion thereof equivalent to disability welfare pension benefits), violates Article 5(e)(iv) of the Convention and may be unconstitutional, the Japanese government should adopt measures amending the additional paragraph 5 of the 1981 law No. 86 and the additional Article 25, paragraph 1 and Article 32, paragraph 1 of the 1985 law No. 34 to authorize the payment of such benefits to these persons.

B. The Government Report

The Government Report states in paragraph 21 that social security benefits are paid based on the principle of equality regardless of nationality, and that the nationality requirement for joining the national pension scheme has been abolished.

C. Position of the JFBA

In 1959, when the system was established, eligibility for participation in the national pension scheme was limited to Japanese nationals. Japan subsequently ratified the Convention on the Status of Refugees, which entered into force on January 1, 1982, and concurrently therewith abolished the nationality requirement in the National Pension Law and allowed resident foreigners to participate in the national pension scheme. However, the revision did not apply to all resident foreigners, and even now, resident foreigners are treated differently from Japanese with regard to the national pension scheme in the following respects:

1) Resident foreigners who were 60 years of age or older as of April 1, 1986 (resident foreigners born on or before April 1, 1926) are not eligible to receive elderly welfare benefits. However, among Japanese in the same age group, persons who were at least 50 years of age as of April 1, 1960 may receive such benefits, and persons who were younger than 50 were allowed to join the national pension scheme and may receive old age benefits upon reaching the legal age of eligibility.

2) Disabled resident foreigners who were 20 years of age or older as of January 1, 1982 do not receive basic benefits or welfare benefits. However, Japanese nationals in identical circumstances receive disability or survivors' basic benefits depending on the date of the qualifying event. The social security program, which includes the national pension scheme, is a system in which the members of society combine to economically support socially weaker persons. Resident Koreans who are permanent residents have assimilated peacefully into the social fabric, and are active members of Japanese society. They are also required to pay taxes.

The provisions of the National Pension Law that bar resident Koreans from receiving elderly welfare benefits and disability basic benefits (the portion thereof equivalent to disability welfare pension benefits) discriminate against resident Koreans in favor of Japanese nationals without rational justification, which violates Article 5(e)(iv) of the Convention and may be unconstitutional under Articles 25, 14 and 98 of the Japanese Constitution.

Therefore, the Japanese government should promptly revise the relevant provisions and effect remedial measures.

13. Prohibition of discrimination between individuals

A. Conclusions and Recommendations

The government should enact a law that will authorize the investigation and punishment of discriminatory conduct between individuals and provide a remedy to the victim. Specifically, it must prohibit by law all forms of private discriminatory conduct as defined in the Convention, apply sanctions to violators in the form of warnings, orders, fines, etc., and take proactive steps to achieve equality in accordance with Article 2, paragraph 2 of the Convention, which recognizes the need or affirmative action.

C. Position of the JFBA

(1) Marriage and choice of spouse

1) In 1997, of all Japanese marriages involving resident Koreans, in 4,504 marriages the husband had Japanese nationality and the wife had Korean nationality, while in 2,674 marriages the husband had Korean nationality and the wife had Japanese nationality. No statistical data have been found regarding marriages in which both partners had Korean nationality. However, these numbers are not limited to resident Koreans, and include newcomers as well, such that it is difficult to accurately assess from government statistics the true situation regarding marriages between resident Koreans and Japanese. Incidentally, in 'Koreans Living in Japan' (Yasunori Fukuoka), it is estimated that among marriages involving resident Koreans in 1990, "the majority constituted 'marriages with a Japanese', by a 7 to 2 ratio."

2) In these circumstances, in which the overwhelming majority of resident Koreans marry Japanese, there is one court case in which discrimination was found (Osaka District Court, Case No. 7452, 1978 (Wa)). In this case, after a Japanese man (the defendant) became engaged to a resident Korean woman (the plaintiff), when the defendant subsequently sought a unilateral annulment of the engagement for reasons based on racial discrimination, the court ruled that the defendant's conduct was illegal. One commentator reviewed this court decision as follows: The reason for the annulment of the engagement was not the defendant's discriminatory intent, but rather the disadvantage that the defendant believed he would face in the future due to the 'feelings' seen in Japanese society as a whole. However, in this case, given the court's order to pay consolation money, it is thought that the same judgment would have been reached if the annulment was based on the defendant's discriminatory intent. Despite such a reviewer's opinion, the very appearance of a court case finding discrimination in connection with the annulment of an engagement based on a discriminatory attitude toward resident Koreans is thought to be extremely rare. In comparison with cases involving other forms of discrimination such as employment discrimination, it is assumed that most cases involving discrimination in connection with marriage go by unnoticed.

3) The 'right to marriage and choice of spouse' (Article 5(d)(iv)) is closely related to the personal feelings between the sexes, and "neither guarantees nor requires that one interact with a specific person." Therefore, regarding discrimination in connection with marriage to a resident Korean, it is urgent that the Japanese government, as a signatory to the Convention, guarantee "the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination" (Article 6) and "adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information" in order to prevent discrimination that impacts the "right to marriage and choice of spouse."

(2) Employment at private companies

1) Employment discrimination against resident foreigners has not been eliminated, but has become more subtle and intricate. Private corporations seek to justify employment discrimination based on the incantation of 'freedom of contract', or on the principle of the 'nationality requirement for civil service hiring' used by the national and local governments. The prohibition of discrimination on the basis of nationality and the principle of equal treatment contained in Article 22, paragraph 1 of the Constitution and in labor and employment laws (Article 3 of the Labor Basic Law, Article 3 of the Public Employment Security Law) are still little more than philosophies. There are currently few specific rules regulating employment discrimination, as well as insufficient measures protecting workers that experience discrimination (such as an agency empowered to investigate claims of discrimination and lodge complaints). At present, the main institutions that criticize and provide guidance for such corporations are the citizens' groups in the forefront of the anti-discrimination movement.

2) According to a survey ('Employment of Resident Koreans in the Osaka Area', January- April 1991) carried out by the Federation of Resident Kokuryo Workers, 40% of respondents indicated that they had 'experienced employment discrimination'. Specific examples of discrimination included 'flat refusal', 'denial of employment through subtle means', and compulsory use of a Japanese name'. According to the survey, only 17.1% of jobs were obtained through public agencies, such as through introduction by the school (14.9%), the public employment security office (2.2%), etc., and the majority of jobs, 55.6%, were found through personal connections (13.8% were obtained from an introduction by a parent or relative, and 41.8% resulted from an introduction by a friend or acquaintance). Employers were more likely to be a business run by fellow Koreans (53.5%) than a Japanese corporation (36.2%), which also serves to demonstrate that the doors of employment in Japanese corporations are largely closed to resident Koreans. Furthermore, according to an investigation performed from 1995 to 1998 by the Osaka Prefectural Board of Education regarding the employment of resident Koreans after high school graduation, it was determined that 9.9% had experienced discrimination during their job search, and specifically, cases occurred in which 'employment was conditioned on naturalization' and in which 'when they learned I was Korean, my interview was cancelled'. Only 13.8% of respondents were hired under their real name.

3) Employment discrimination against a resident Korean was the subject of a 1974 case against Hitachi Ltd. seeking a ruling that the revocation of a private employment agreement was invalid. In that case, the decisive reason for the exercise of the retained right to terminate employment was the plaintiff's nationality, and such exercise was ruled invalid on the ground that it ran afoul of Article 3 of the Labor Basic Law and contravened public order and good morals in violation of Article 90 of the Civil Code (Yokohama District Court, Vol. 2118 (Wa), 1974).

However, judging from recent cases, it does not appear that this decision has effected a change in the behavior of Japanese corporations. For example, in May of 1998, Fujipan Corporation forced a resident Korean junior college student who sought employment under her real name to use a Japanese name during interviews, and when she refused to do so, denied her a job. (Fujipan admitted that this was ethnic discrimination, but refused to negotiate with the Osaka Prefecture Labor Department, the university employment office, or citizens' groups, and ignored the guidance of the Osaka Prefecture Labor Department.) In 1997, a resident Korean university student who had received a school recommendation to apply with Zenidakagumi Corporation was rejected by the company without even being given a chance to take the company's hiring exam due to the student's nationality (the company still refuses to acknowledge that this constituted discrimination). From these examples, it is abundantly clear that employment discrimination against resident Koreans has by no means been eliminated.

(3) Housing

1) No regulations or guidance are in place with regard to harassment of resident foreigners by lessors in the private housing market, which may include a demand for production of a would-be lessee's resident card, nor are there any regulations or guidance with respect to private housing for newcomers.

2) Where the refusal to enter into a contract was based on the fact that the applicant was a resident Korean, and thus lacked rational justification, the Osaka District Court ruled on June 18, 1993 that the real estate agent was equivalent to an agent of the lessor, and that the refusal constituted a violation of the duty to act in good faith (Vol. 3122, 1989 (Wa)). However, it should not be concluded that this decision has affected real estate rental practices. Even where housing is denied outright, 'unofficial complaints' are common, and it is estimated that there are many instances in which resident Koreans are forced to seek housing through connections, or using the name of a Japanese acquaintance.

(4) The discrimination experienced by resident Koreans in the areas of choice of spouse, hiring at private companies and housing is not openly complained about due to the nature of the discrimination in many cases, but considering the likelihood that many cases never come to light, such discrimination must be considered a deeply rooted and serious problem in Japanese society. This represents an ongoing violation of Article 5(d)(iv), Article 5(e)(i) and Article 5 (e)(iii) of the Convention. Compensatory civil remedies for such discriminatory conduct are inadequate, and laws are needed that will ensure that discriminatory conduct will be investigated and punished and that victims will receive proper redress. Specifically, proactive measures must be adopted that will (i) prohibit all forms of private discrimination in accordance with the provisions of the Convention, (ii) impose sanctions such as warnings, orders or penalties on violators, and (iii) achieve actual equality in accordance with Article 2, paragraph 2 of the Convention, which recognizes the need for affirmative action.

14. Resident Taiwanese

A. Conclusions and Recommendations

The '270,000 Chinese' estimated to be alien registrants in the report (as of 1998), approximately 130,000 are persons that were born in the former Japanese colony of Taiwan and have remained in Japan since the war, and these persons face the same problems encountered by resident Koreans.

B. The Government Report

The Government Report does not discuss in its report the status of ethnic Taiwanese residing in Japan.

C. Position of the JFBA

(1) There is a problem with the definition of nationality for purposes of alien registration.

At present, the nationality description applicable to ethnic Taiwanese for alien registration purposes is simply 'Chinese'. However, resident Taiwanese are strongly urging that they be described as 'Taiwanese', partly for reasons of self-respect and partly because they do not want to be regarded as persons from mainland China (Chinese).

(2) Problem of Chinese schools

Chinese schools are located in three locations in Japan (Tokyo, Yokohama and Osaka), and the total number of students at these schools is approximately 900.

However, as with Korean schools, graduates of such schools are not accorded full academic status, and only a small number of private universities will allow them to sit for the university's entrance examination.

(3) Issues in connection with rights regarding public employment, participation in politics

Resident Taiwanese face the same problems as ethnic Koreans in these areas.

(4) Naturalization permit system

The naturalization review process is applied to Taiwanese men married to Japanese women much more stringently than it is applied to Taiwanese women married to Japanese men, and it has been pointed out that this is inappropriate in an age of internationalization.

(5) Problem of unpaid postwar compensation

Taiwanese who served in the Japanese Army as a soldier or civilian employee during World War II have received a maximum of 2,000,000 yen as sympathy money, which constitutes severe discrimination against such persons in comparison with Japanese former soldiers or staff.

(6) Causes of discrimination

The biggest reason for the various types of discriminatory conduct described above is thought to be the fact that Japanese still maintain a conqueror's mentality toward resident ethnic Taiwanese who were born in a former Japanese colony.

Chapter 3: Problems Faced by Newcomers

1. Japanese attitudes toward immigrants and foreigners

Many of the 'Wajin' Japanese that make up the majority ethnic group in Japan believe that Japan has existed for a long time as a state comprising a single ethnic group. Thus, they lack a clear understanding of the concepts of nationality, ethnicity and race.

In Japan, the word 'gaijin' is used to vaguely express the concept of a person of a different nationality, ethnic group or race.

Thus, while from a formal legal perspective different treatment may be accorded on the basis of nationality, in practice it may have originated on the basis of ethnicity or race.

Most Japanese generally do not have hostile feelings toward so-called 'gaijin', but they rarely accept them as true members of society. As a result, xenophobic sentiments can easily spread when they are inflamed by statements that crimes by 'gaijin' are increasing.

Therefore, when evaluating Japan's implementation of the Convention on the Elimination of All Forms of Racial Discrimination, careful attention must be paid to treatment that is formally based on nationality.

2. Resident foreigners in general

(1) Article 2

Prohibition of discrimination by all public authorities and public institutions, national and local (Article 2, paragraph 1(a))

1) General human rights principles regarding foreigners

A. Conclusions and Recommendations

The basic human rights of foreign nationals should be guaranteed in principle, and the Japanese government must not impose any disadvantage based on conduct that is recognized as the exercise of one's human rights.

B. Position of the JFBA

The attitude of the government, which does not treat persons having a different nationality, ethnicity or racial background as equal members of society, is seen in the general rules pertaining to the fundamental human rights of foreigners.

Japan's Immigration Control and Refugee Recognition Act requires that foreigners residing in Japan have a resident visa, and with the exception of permanent residents, this resident visa can be valid for no more than three years. Persons wishing to continue their residency must submit an application to extend their period of residency and obtain the permission of the Minister of Justice.

Ronald McLean, who had American nationality, was living in Japan with a resident visa based on his employment as an English teacher. Based on a change in his employer without prior government approval and on political activities, he was denied an extension of his period of residency. He filed suit, and on October 4, 1978, his suit was denied by the Japanese Supreme Court.

The court held in its decision that while the right of foreigners to engage in political activity was guaranteed in principle, "the constitutional guarantee of fundamental human rights is only extended to foreigners within the framework of the residency system as it applies to such persons," and that "even where the conduct of resident foreigners is constitutional and legal, the Minister of Justice is given unfettered discretion to determine whether or not such conduct is desirable from the standpoint of the state." The Court accordingly upheld the denial of the application for a residency period extension even though the political activity in which the applicant had engaged was guaranteed as a basic human right.

The Court's decision wrongfully justified the government's imposition of a major disadvantage on a foreign national on the ground that the foreigner engaged in political activity, even while it was agreeing that the freedom to engage in such activity is a basic human right.

2) Discrimination during criminal justice process

A. Conclusions and Recommendations

The criminal justice process should not distinguish between American service personnel and other foreigners, and investigator's record of oral statement should be prepared in the suspect's native language. If the case record cannot be prepared in the suspect's native language because an interpreter cannot be found, a suspect's indication that 'there are no errors' in the record should be preserved via sound recording or other means.

B. Position of the JFBA

At present, when Japanese police and prosecutors carry out a criminal investigation of a suspect that has a native language other than Japanese and does not speak Japanese, the case record is prepared only in Japanese, and a copy of the record is not prepared in the suspect's native language. Furthermore, under Article 198 of the Japanese Criminal Procedure Code, the suspect must be allowed to read the case record or it must be read to the suspect, the suspect must check whether or not there are errors in the record, and the suspect's certification of the record is preserved as part of the case record. Where a copy of the case record is not prepared in the suspect's native language, the record is often verbally translated by an interpreter for confirmation, but the content of the translation that the suspect confirmed is not retained, and even if the translation contains a discrepancy from the original Japanese record, there is no way to investigate the discrepancy at the subsequent trial.

Unlike this general procedure, when a member or employee of the U.S. military residing in Japan is a criminal suspect, the Ministry of Justice has instructed that "where the suspect will sign only a foreign-language case record, a foreign-language report is naturally required," and in such cases an English-language case record is prepared. In this case, the content of the case record confirmed by the suspect after the suspect has read the record, or after the record is read to the suspect, is retained as part of the case record.

In Japan, investigator's record of oral statement prepared during the investigative phase that find facts that are damaging to the suspect may in principle be used as evidence. Therefore, the prejudice that can result from an erroneous factual conclusion arrived at through a mistaken verbal translation can be enormous. Because the different standard of treatment afforded to American service personnel whose native language is English constitutes discriminatory treatment of other categories of suspects, a case record should be similarly be prepared in the suspect's native language for persons whose native language is not English. If such a translation cannot be prepared for time reasons, or because an interpreter cannot be easily obtained, a policy should be instituted by which the confirmation is made by means of a written translation that will be preserved, or if the confirmation is made by means of verbal translation, the verbal translation should be preserved via sound recording.

(2) Prohibition of discrimination between individuals (Article 2, paragraph 1(d))

A. Conclusions and Recommendations

Childhood education should foster the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; and the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin. The government should instruct and educate private real estate agencies and real estate agent associations regarding the prohibition of housing discrimination. Furthermore, the government and local public entities should establish a housing assistance system in which a public corporation will serve as a guarantor for foreigners seeking housing. In addition, the national and local governments should pursue by all appropriate means measures to eliminate the exclusionary mindset of the Japanese people toward foreigners, abolish such types of discrimination as refusal to allow foreigners into one's business establishment, housing discrimination and school bullying, and promote racial harmony and understanding.

B. Position of the JFBA

There are innumerable examples of discrimination between individuals, and it is fair to say that Japanese in general have an exclusionary attitude toward foreigners. Many Japanese feel superior to people from other Asian nations in particular.

1) Housing discrimination against foreign tenants

The refusal by a rental property owner or real estate agent to enter into a lease because the lease applicant is a foreign national is an everyday occurrence.

According to the results of one survey, in response to an inquiry to the effect that 'a male Chinese friend of mine is looking for housing, and would you please provide a referral', 248 of 282 real estate agencies (87.9%) responded 'not for a foreigner'. Some respondents said a referral would be considered if the foreigner was a Westerner.

The denial of housing simply because one has a different nationality or ethnic or racial makeup is obviously a denial of housing based on racial discrimination.

Furthermore, the willingness to provide housing to Westerners but not to Asians is a clear example of the discriminatory attitude held by Japanese with regard to other Asians.

2) Discrimination against foreign customers

When a Brazilian woman living in the city of Hamamatsu in Shizuoka prefecture entered a local jewelry store, she was asked by the store manager where she was born, and when she answered, the manager told her to leave and barred her from the store, showing her a written notice stating 'Foreigners Not Allowed In Store'. When the woman filed suit, the Hamamatsu branch of the Shizuoka District Court ordered the jewelry store manager to pay her consolation money of 1.5 million yen. There are many other examples of foreigners being denied entry to a business establishment, which derive from the assumption that foreigners are dangerous.

In the city of Otaru in Hokkaido prefecture, some private bathing facilities (three establishments) refused to allow foreigners to use the facilities. This was explained as a response to the complaints of Japanese that foreigners would 'bring food and drink into the bath, be drunk and noisy, jump into the tubs,' etc., but the blanket exclusion of all foreigners in response to that type of behavior or manner of use can only be described as racial discrimination. After efforts by the city and pressure from citizens' groups, two of the bathing establishments rescinded their policy, but as of September 2000, one facility continues to bar all foreigners.

3) Feelings of contempt

In an interview-based survey of a variety of student groups carried out during 1993 and 1994 regarding the internationalization of Japan and the media, Asian exchange students in Japan described some of the prejudices and misunderstandings held by Japanese toward Asians. Responses included the following statements: "There are two types of foreigners, 'honorable gaijin' and 'gaikokujin'. Westerners are 'honorable gaijin'. Foreigners who come here to work illegally are 'gaikokujin'"; "Japanese people have the impression that all Thai women are prostitutes. Friends ask me 'Are Thais really good at sex?'"; and "I don't really want to tell my friends I'm Thai. People just assume that Thai women are prostitutes."

4) Bullying by other children

There is a significant amount of bullying of children of different ethnic or racial backgrounds at schools. Children who do not speak Japanese and who have different cultures and customs are an easy target for such bullying.

5) Government policies

These types of exclusionary conduct against foreigners and persons having a different ethnic or racial makeup, and particularly statements evidencing contempt for Asians, occur in Japan on a daily basis.

In light of such circumstances, it cannot be concluded that the Japanese government is pursuing by all appropriate means policies to abolish racial discrimination and promote understanding between races.

Article 29 of the Convention on the Rights of the Child, providing that the education of the child to be directed to the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; and the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin, calls for education regarding the coexistence of minorities and majorities, in which the identities of foreigners are respected, including their native languages and ethnic values, but it is clear that Japan's educational system does not ensure that such an education is provided.

Housing discrimination by real estate agents is an everyday occurrence, but the government does not carry out any instruction or education to agents or agent associations in this regard.

The city of Kawasaki in Kanagawa prefecture enacted an ordinance creating an agency called the Kawasaki City Foreign Citizens Representative Council, which consults with the mayor, and the reports issued by this council in 1997 and 1998 urged the enactment of a city ordinance to eliminate housing discrimination against foreigners, the elderly and the disabled. The city has revised its Housing Basic Ordinance, and established a system that will provide housing assistance to foreigners, the elderly and disabled beginning in April 2000. The main feature of this system is that a public corporation will act as guarantor for eligible persons seeking housing. As of October 1, 2000, the corporation had assisted in the securing of housing for 136 clients, 20 of whom were foreign nationals.

While the Kawasaki program should be applauded, it is to be lamented that a similar program is not in place nationwide, despite the obvious need for such assistance. The Ministry of Construction is considering the introduction of such a system, but at present it appears that the system will assist only the disabled, and we hope that the system will soon be extended to foreign nationals as well.

(3) Article 4 Prohibition of promotion or incitement of racial discrimination by public authorities or public institutions, national or local (Article 4(c))

A. Conclusions and Recommendations

Government agencies such as the National Police Agency, the governor of Tokyo and the city of Otaru, as well as other local public entities, should refrain from making statements that play up increases in crime by foreigners and the seriousness of such crimes, unnecessarily promote the notion that foreigners are dangerous, and encourage or incite racial discrimination.

B. Position of the JFBA

1) Statements by National Police Agency promoting notion that foreigners are likely to commit crimes and inciting the discriminatory belief that foreigners are dangerous

Beginning in the first half of the 1990's, media coverage of crimes committed by foreigners or that were suspected to have been committed by foreigners began to increase. Many of these media reports emphasized the sudden increase in crimes committed by foreigners and the serious nature of such crimes, and unnecessarily promoted among Japanese the notion that foreigners were dangerous.

On November 7, 1991, all of the major newspapers reported on the sudden dramatic increase in crimes committed by foreigners. One headline used that day was 'Streets Inundated With Crimes by Foreigners'. This article was based on a report issued by the International Crime Department of the Criminal Investigation Bureau of the National Police Agency entitled 'Increase in Crimes by Foreigners'.

On April 18, 1993, all major newspapers carried articles under headlines such as 'Five-fold Increase in Serious Crimes by Foreigners in Five Years' that stressed the increase in the number of crimes against Japanese. These articles were based on a report entitled 'Summary of Crimes Involving Foreigners Living in Japan' prepared by the Committee to Address the Foreigner Problem within the National Police Agency.

In this way, the National Police Agency has repeatedly made announcements regarding an increase in the number of crimes committed by foreigners and a higher rate of crime among foreigners than among Japanese, and has instigated reports on these topics among the mass media.

However, according to statistics contained in the 1998 White Paper on Crime, the number of foreigners that were ultimately processed in suspected criminal cases was 7,920 in 1995, 7,707 in 1996, and 7,789 in 1997. Not only is this not a steady increase, but the number in both 1996 and 1997 was lower than the number in 1995. Furthermore, the number of foreign suspects in criminal cases not involving a violation of immigration law was 11,672 in 1995 (17,990 total suspects, minus 6,318 immigration violation suspects), 11,301 in 1996 (18,716 total suspects, minus 7,415 immigration violation suspects), and 11,405 in 1997 (21,351 total suspects, minus 9,946 immigration violation suspects), again showing not only no steady increase, but a decrease in 1996 and 1997 over 1995. When limited to foreigners living in Japan, the numbers are as follows:

Number of criminal suspects Total number of non-immigration law related suspects 1995 3965 6248 1996 3915 5999 1997 3979 6287

Again, it can be seen that there was no steady increase. As for the crime rate, the 1996 White Paper on Crime states that "the percentage of foreigners in Japan relative to the total population appears to be 0.9%, but foreigners comprised 2.2% of all persons who were investigated for crimes in 1995." However, using the above number of foreigners that were ultimately processed in suspected criminal cases, foreign suspects living in Japan comprised only 1.57% of all suspects. Furthermore, the basis for the estimate of the number of foreigners in Japan used when calculating the percentage that foreigners comprise of the total population is less than certain.

In light of these circumstances, the announcements by the National Police Agency that call attention to a supposed dramatic increase in the number and seriousness of crimes by foreigners unnecessarily inflame the popular fear of foreigners as dangerous, and constitute impermissible encouragement or incitement of racial discrimination on the part of the state of Japan.

2) City of Otaru

Beginning on June 1, 2000, the city home page established by the city of Otaru (Hokkaido) included a statement, under the title 'City Asks for Cooperation in Prevention of Illegal Stay and Employment of Foreigners', to the effect that 'some illegal aliens band together and commit such serious crimes as murder, robbery, prostitution and drug trafficking, and constitute a serious threat to public order and a major social problem'. The city posted the statement in response to a request by the city's police. After opposition by citizens' groups, the statement was removed by July 25th. These statements unnecessarily inflamed the popular fear of foreigners as dangerous, and constituted impermissible encouragement or incitement of racial discrimination by a local public entity.

3) Tokyo governor

On April 9, 2000, at a ceremony commemorating the establishment of the First Division of the Ground Self-Defense Forces, Tokyo governor Shintaro Ishihara stated as follows:

Looking at Tokyo today, many sangokujin and other foreigners who have entered Japan illegally have repeatedly committed atrocious crimes. In Tokyo, the types of crimes committed have changed. This being the case, in the event of a major disaster, it is thought that even riots may break out. This is the current situation. In dealing with such a state of affairs, police have their limits. I hope you will not only fight against disasters but also maintain public security on such occasions. I hope you will show the Japanese people and the Tokyo people what the military is for in a state.

In addition, in the September 2, 2000 issue of the 'Shukan Today', governor Ishihara was quoted as follows:

If there were a major disaster, some of the illegal foreigners in Shinjuku and Ikebukuro would take advantage of the confusion, and you don't know what they would do. Right now, people who have committed two or more crimes serve time in Fuchu prison. Of the prison capacity of 2000 inmates, well over four hundred are sangokujin or foreigners.

In these statements, the accusation that illegal immigrants are regularly committing horrible crimes and the assertion that illegal immigrants are dangerous based on the percentage of the prisoner population in Fuchu prison comprising foreigners have no factual basis, as explained above in connection with the announcements by the National Police Agency. In particular, without further explanation, the point regarding the composition of prisoners in Fuchu prison invites particular misunderstanding, because since Fuchu prison is equipped to accommodate prisoners from different cultures, it naturally houses a higher than average concentration of foreign nationals. Governor Ishihara's statement, which did not explain this background, was misleading. Governor Ishihara's statement, which emphasized the supposed dramatic increase in the number and seriousness of crimes by foreigners, unnecessarily inflamed the popular fear of foreigners as dangerous, and constituted impermissible encouragement or incitement of racial discrimination on the part of a local public entity. Furthermore, the statement speculating that illegal immigrant foreigners would engage in rioting in the event of a disaster is without foundation. To the contrary, given the fact that Japanese murdered ethnic Koreans during the Great Kanto Earthquake, the scenario envisioned by governor Ishihara is highly unlikely. Governor Ishihara's statement playing up the danger of foreigners rioting also unnecessarily inflamed the popular fear of foreigners as dangerous, and constituted impermissible encouragement or incitement of racial discrimination on the part of a local public entity.

(4) Article 5

Right to equal treatment before tribunals and all other organs administering justice (Article 5(a))

1) Legal assistance

A. Conclusions and Recommendations

he scope of persons eligible to receive legal aid from the national treasury under the Legal Aid Law should be expanded to include foreign nationals irrespective of their length of residence.

B. Position of the JFBA

A Legal Aid Law that provides funds from the national government to enhance the civil legal aid system was enacted and went into effect in 2000. However, this law sets eligibility criteria for expenditures from the national treasury, and restricts eligibility to Japanese nationals or to foreigners with a permanent resident visa. Therefore, foreigners without a permanent resident visa and foreigners with a short-term resident visa are barred from receiving assistance. While the Legal Aid Association that provides legal aid services has the freedom to offer aid using its own resources, there is a risk that many foreigners will be excluded from receiving legal aid.

2) Guarantee of interpretation during criminal proceedings

A. Conclusions and Recommendations

The reduction in fees paid to interpreters under the public defender system should be rescinded, and the guarantee of interpretation in criminal proceedings must be preserved.

B. Position of the JFBA

Under the court-appointed defender system, criminal courts determine whether the national government will bear the cost of interpreting fees. Beginning in October of 1999, interpreting fees for interviews were cut on a nationwide basis to 70% of the amount paid for trial interpreting.

It was also determined that no fees whatsoever would be paid for interviews in connection with an intermediate appeal in which the case is withdrawn.

It is not uncommon for interviews to be done at distant holding facilities or police stations where the suspect is being held, and travel to and from such facilities can be extremely time- consuming. Furthermore, in the case of courtroom interpreting, courts begin operating at the regular time. However, in the case of an interview, it is common for interpreters to be forced to wait because the interview room is already being used or for some other reason. As a result, interviews can consume far more time than simply the time spent in the interview. Therefore, reducing interview interpreting fees amounts to an effective abrogation of the guarantee of interpretation.

3) Administrative appeal process

A. Conclusions and Recommendations

The government should confer standing to appeal under the Administrative Appeal Law to any person irrespective of nationality, and should operate the appeal system accordingly.

B. Position of the JFBA

In a case in which an illegally resident foreigner was hospitalized for treatment of serious injuries including a fractured skull suffered in an April 1994 auto accident, the foreigner applied to the Nakano Ward (Tokyo) government for livelihood protection benefits on the ground of inability to pay medical costs, but the application was denied. The foreigner filed an appeal of the decision with the governor of Tokyo under the Administrative Appeal Law, but the governor dismissed the appeal in February of 1995 on the ground that the foreigner had no standing to appeal.

In a May 29, 1996 decision by the Tokyo District Court, while the court dismissed the foreigner's lawsuit challenging the denial of benefits, it ruled that foreigners have standing to file administrative appeals.

4) Right to housing (Article 5(e)(iii))

A. Conclusions and Recommendations

The nationality requirement imposed by the Housing Loan Corporation should be abolished.

B. Position of the JFBA

Eligibility for assistance by the Housing Loan Corporation is restricted on the basis of nationality and residence, and only permanent residents may obtain assistance.

5) Right to social security (Article 5(e)(iv))

A. Conclusions and Recommendations

The national government and local public entities should permit participation in the social security system irrespective of nationality.

B. Position of the JFBA

Foreigners who do not have a visa authorizing residency of at least one year are denied most types of social security benefits.

(a) Livelihood protection

The National Assistance Act does not have an explicit nationality requirement, but Articles 1 and 2 thereof use the phrase 'all citizens'. Originally, the Ministry of Health and Welfare determined that while the National Assistance Act did not apply directly to foreigners, it would interpret the law as if it did so apply. However, expenditures on behalf of foreigners became increasingly restricted, and the planning law chief of the Protection Department of the Social Affairs Bureau of the Ministry of Health and Welfare issued verbal instructions to the effect that "the provisions of the National Assistance Act shall not be applied to foreigners who are not permanent residents."

In a case in which a foreigner residing in Japan illegally was hospitalized for treatment of serious injuries including a fractured skull suffered in an April 1994 auto accident, the foreigner's application to the Nakano Ward (Tokyo) government for livelihood protection benefits on the ground of inability to pay medical costs was denied. On May 29, 1996, the Tokyo District Court dismissed the foreigner's lawsuit challenging the denial of benefits.

It can thus be seen that livelihood assistance benefits are denied to non-permanent resident foreigners not only as a general rule, but even when sought in connection with emergency medical care.

(b) National health insurance

A March 31, 1992 directive from the National Health Insurance Department of the Ministry of Health and Welfare stated that it would henceforth restrict benefit eligibility to (1) persons who possessed a visa authorizing residency of at least one year when they entered the country, and (2) persons who, taking into account the purpose of entry and the nature of their life after entering the country, are recognized as living in the country for at least one year. Most local public entities have conformed to this directive.

Where a foreign woman who entered the country illegally married a Japanese man and gave birth to a daughter, and the husband subsequently died, the woman submitted an application with the Adachi Ward government in Tokyo for a national health insurance certificate, which was denied. When the woman filed suit to contest this denial, the Tokyo District Court dismissed the suit, ruling on September 27, 1995 that persons residing in Japan based on illegal entry into the country and thus not having a status of residency did not qualify as persons 'having an address' under Article 5 of the National Social Security Law.

When a Chinese woman who overstayed her visa applied with the city of Musashino (in Tokyo) for a national health insurance certificate, the application was denied for the same reason stated in the decision mentioned above. When the foreigner filed suit, the Tokyo District Court ruled on July 16, 1998 that the foreigner had an address resided in the city of Musashino, and overturned the city's decision.

6) Safety during disasters

A. Conclusions and Recommendations

In the event of a disaster, local public entities, and Tokyo in particular, must not discriminate on the basis of race, ethnicity or nationality, or on the basis of legal or illegal residence, when offering protection and relief.

B. Position of the JFBA

On April 9, 2000, at a ceremony commemorating the establishment of the First Division of the Ground Self-Defense Forces, Tokyo governor Shintaro Ishihara stated as follows:

Looking at Tokyo today, many sangokujin and other foreigners who have entered Japan illegally have repeatedly committed atrocious crimes. In Tokyo, the types of crimes committed have changed. This being the case, in the event of a major disaster, it is thought that even riots may break out. This is the current situation. In dealing with such a state of affairs, police have their limits. I hope you will not only fight against disasters but also maintain public security on such occasions. I hope you will show the Japanese people and the Tokyo people what the military is for in a state.

Nationality, race and ethnicity are irrelevant considerations when providing protection and relief in the aftermath of a disaster. Foreigners should be treated no differently than Japanese in this regard, even if they entered the country illegally. Furthermore, while governor Ishihara raised the specter of foreigners instigating riots, in light of the history of Japanese killing ethnic Koreans during the Great Kanto Earthquake, there would appear to be little danger of riots being carried out by foreigners. Indeed, there is a bigger risk that alarmist statements about the potential danger of rioting foreigners would encourage and incite discrimination and harassment against foreigners during a disaster.

The fact that the head of the Tokyo metropolitan government believes that foreigners are likely to violate public order during a disaster and wants to regulate them in such an event raises the concern that the lives and physical safety of foreigners will not be adequately protected should a disaster occur.

Chapter 4: Refugees

Article 2

(1) Concerns about discrimination in the recognition of refugee status based on country of origin

A. Conclusions and Recommendations

Refugees should be recognized impartially without discrimination on the basis of their country of birth, and in order to ensure the fairness of the recognition process, the reasons underlying determinations or denials of refugee status should be clearly stated.

B. Position of the JFBA

In educational materials for immigration officials prepared by the General Legal Research Institute, it was stated that the distinction between friendly and unfriendly countries is taken into account when determining whether or not to grant refugee status. This statement has been removed from the current edition of the materials, but there is no information indicating that the training curriculum was revised to emphasize that the inclusion of the statement was subsequently described as a mistake and that discrimination in the treatment of refugee applicants is prohibited.

In fact, despite a large number of successful applicants for refugee status in other countries come from China or Turkey, there are no confirmed examples of official Japanese recognition of refugees from these nations.

Furthermore, while the notification of non-recognition contains an area for the indication of the reason for the determination, in most cases the indicated reason is non-substantive, i.e., expiration of the period for filing of the application, or no specific reason is stated at all, i.e., it is indicated that the application provides insufficient grounds for refugee status. Clearly, the fairness of the determination process is by no means assured.

Japan recognizes a much smaller number of refugees than Western countries, and it is suspected that discrimination based on the country of origin is part of the reason.

(2) Discrimination in application of measures promoting permanent residence based on country of origin

A. Conclusions and Recommendations

In implementing measures promoting permanent residency in Japan, the Japanese government should apply the same standards to all refugees that it applies to refugees from Indochina, and should not discriminate based on the country of birth.

B. Position of the JFBA

Japan has taken various measures to promote permanent residency in Japan among refugees from Indochina. Beginning in 1979, the government committed the program to promote permanent residency in Japan among refugees from Indochina to the Asia Welfare and Education Foundation, and from 1979 through 1983, three Permanent Residency Promotion Centers were established in Japan to promote permanent residency among Indochinese refugees, and an International Assistance Center was founded in Shinagawa Ward in Tokyo to benefit long-term residents.

However, in the case of refugees from other countries, even if Japan has grants refugee status, it does not apply the same standards in implementing the permanent residency policy as it does in the case of refugees from Indochina.

While Japan granted refugee status to 16 persons in both 1998 and 1999, as of March of 1998, all of the regional Permanent Residency Promotion Centers mentioned above were closed, and were unavailable to assist refugees from countries outside Indochina.

The International Assistance Center currently in existence helps refugees find housing and provides assistance in the form of Japanese language instruction, social guidance regarding Japanese customs, health management, assistance with food and living costs, introductions to employers, etc., and this is the only institution that offers such assistance to refugees. At the same time, however, this center is available only to refugees born in Indochina, and refugees from other countries or regions are denied admittance in principle. To date, only one family from Iran and one family from Myanmar have been admitted to the center, as exceptions to the general rule.

This constitutes discrimination on the basis of the country of origin of the refugee.

The permanent residency promotion measures that have historically been provided for Indochinese refugees, including admittance to the International Assistance Center, should be provided in the future to refugees from any country.

(3) Housing discrimination, etc.

A. Conclusions and Recommendations

The national government and local governments should implement by all appropriate means measures to eliminate the exclusionary feelings of Japanese toward foreigners, including refugees, as well as discrimination in the operation of businesses, housing discrimination and school bullying.

B. Position of the JFBA

As described in section (2) above, there are no government-run housing programs even for recognized refugees. As a result, even persons officially recognized as refugees face the same housing discrimination problems encountered by foreigners in general.

Nor are there any housing programs for applicants for refugee status awaiting a decision on their application. Because there are no housing facilities or other provisional measures to protect these refugee candidates, they are subject to discrimination when looking for housing.

Chapter 5: Burakumin Issue

A. Conclusions and Recommendations

The so-called 'burakumin' issue in Japan is a typical and at the same time serious problem involving discrimination against a minority, and cannot be ignored. In light of still existing problems of discrimination against buraku residents, the Japanese government should make continuing efforts to eliminate discrimination against them.

B. The Government Report

There is no discussion in the Government Report of the so-called 'burakumin' issue in Japan.

C. Position of the JFBA

1) Status of 'burakumin'

According to an investigation conducted in 1993 (Fact-Finding Investigation Regarding the Situation in Dowa Areas on 4603 districts), there are 4603 'buraku', the neighborhoods in which 'burakumin' live, throughout the country (the number of the districts that replied so), and the buraku population is 892,751 (the number of persons concerned within those districts that replied mentioned above).

2) Reality of discrimination against 'burakumin' and Government policy regarding 'burakumin'

To date, the government has addressed the 'burakumin' issue through the 'Dowa Policy Special Measures Law' and the 'Regional Improvement Policy Special Measures Law'.

These laws have resulted in some degree of improvement of the situation.

However, it cannot be said that the elimination of discrimination against persons born in 'buraku' neighborhoods has been achieved.

Therefore, the government should make continuing efforts with the aim of eliminating discrimination against 'burakumin'.

Chapter 6: Ainu Issue

A. Conclusions and Recommendations

he Ainu are an indigenous people of Japan. Because they comprise an ethnic minority, the Japanese government should recognize their indigenous status and adopt necessary and appropriate measures to protect their rights.

B. The Government Report

The Government Report discusses the Ainu issue in the section of the Introduction entitled 'The Ainu people', in the section entitled 'Amendment and Abolishment of Discriminatory Laws' under Article 2, and in the section of entitled 'Culture' under Article 7.

However, there is very little historical awareness of the Ainu issue and insufficient understanding of the current status of the Ainu people, and as a result, the indigenous rights of the Ainu people remain unrecognized.

C. Position of the JFBA

1) History of the Ainu

The Ainu people are unquestionably an indigenous race native to Japan, and clearly constitute an ethnic minority in Japan.

In other words, the Ainu comprise indigenous people whose ancestors lived in areas north of Japan, such as Sakhalin and the Kuril Islands, and for whom the Ainu language is their native language. They consider nature their companion, receive the blessings of nature, consider all creatures who walk the earth, even animals, to be equal, and follow their own customs and culture, which they hand down to their descendants.

They call their land 'Ainu Moshiri' ('a great land where humans live').

However, in 1869 the government designated a part of 'Ainu Moshiri' Hokkaido. Subsequently, 'Wajin' (meaning Japanese) began to settle and develop the land, and as a result the lifestyle of the Ainu underwent a 180-degree change.

Under the Family Register Law, the Ainu people were deemed Japanese (commoners), the land on which they were living was placed under the control of the government, and the unique customs and culture of the Ainu began to be eradicated.

2) Past policies toward the Ainu

In 1878, the Ainu were referred to as 'former aborigines' (barbarians from undeveloped lands), they were given Japanese names like those of the 'Wajin', and their unique culture began to come under attack, until the Ainu became an impoverished minority in Japan.

Consequently, the government enacted in 1899 the Hokkaido Former Aborigines Protection Law for the Ainu. However, the Ainu people began to be treated as a dying race for the sake of the government's 'assimilation policy'.

3) Failure of the Hokkaido Former Aborigines Protection Law

This law, enacted 30 years after the 'Wajin' had begun to settle in Hokkaido, gave land (land grants) to the Ainu with the object of enabling them to live a stable life through agriculture, but because there was no longer any available arable land in Hokkaido, the land given to the Ainu consisted solely of mountains, ravines, swamps and cliffs, and thus the Ainu were unable to sustain the stable agricultural life sought by the legislation.

Furthermore, the land was given under the condition that if it was not cultivated for 15 years, it would be forfeited.

Article 10 of the law provided that the common assets of the Ainu people would be managed by the head of the Hokkaido government (the governor), but this condition was imposed because the Ainu were deemed incapable of managing their own assets, which to them made it an insulting provision.

Furthermore, as explained below, when this law was abolished in 1997, the common assets that had been managed by the Hokkaido governor amounted to only 18 items having a value of 1,293,000 yen.

In addition, the law was supposed to guarantee medical treatment and school education for the Ainu, but as indicated by its name, the law was based on discrimination against the Ainu. The Ainu were made the poorest ethnic group in Japan, and the law can hardly be said to have fulfilled its purpose of protecting the Ainu. The Ainu have argued that the law is a bad law and should be abolished.

The Government Report says nothing about these issues as well.

4) Reasons for discrimination against Ainu in Japan

The biggest reason for discrimination against the Ainu is that they are racially different from 'Wajin' Japanese.

In Japan, the word 'Ainu' means someone of a different race.

Therefore, many people who have Ainu blood go out of their way to hide their ancestry.

5) Current situation regarding Ainu

In 1974, the national government and the Hokkaido government implemented the first seven-year Utari program, and in 1981 they implemented their second seven-year Utari program.

The Hokkaido government carried out for the first time in 1986 an investigation of the effectiveness of their Utari programs, which revealed continuing discrimination against the Ainu in favor of 'Wajin' in the areas of application of welfare programs, rate of students going on to high school, employment and marriage, as noted in the Government Report.

As is apparent from the 1986 statement by Prime Minister Nakasone that 'Japan is racially homogeneous', there are many people who believe that Japan is a racially homogeneous state and deny the existence of indigenous peoples.

6) Problems with the new Ainu law enacted on May 14, 1997

The Ainu people actively promoted a movement to enact a 'new Ainu law' to eliminate the discrimination and human rights infringements suffered by the Ainu to date.

The Hokkaido Utari Association, which is the largest organization of Ainu people, announced at its 1984 general meeting a proposed 'Law Regarding the Ainu People' that would replace the Hokkaido Former Aborigines Protection Law.

The Association released a statement calling for (1) the abolition of the old law, (2) the enactment of a law to provide redress for the losses suffered by the Ainu, and (3) the enactment of the new law to take place at the same time as the abolition of the old one, and these calls have developed into the demand for the elimination of discrimination, the creation of 'special seats' in the Diet regarding which only Ainu could run for election or vote, the implementation of measures to preserve the Ainu culture and promote their economic self-sufficiency, the creation of an Ainu self- sufficiency fund, and the establishment of an ongoing consultative body in order to guarantee the rights of the Ainu and respect for their unique culture and their ethnic pride.

In response, the governor of Hokkaido referred the matter to an 'Utari Issue Committee' for examination. Three years later, the committee basically approved the proposals of the Association, with the exception of their demand for special seats in the Diet, and recommended that the national government enact a new law.

However, such an examination took a very long time at the national level. Finally, on March 1, 1995, the 'Round Table on the Policy for the Ainu People' was established, and a report from this body was submitted to the government in 1996.

This report acknowledged that the Ainu were an ethnically separate indigenous people, but did not clearly indicate a determination regarding whether they constituted an indigenous people having indigenous rights pertaining to self-determination.

On May 14, 1997, a 'Law for the Promotion of the Ainu Culture and for the Dissemination and Advocacy for the Traditions of the Ainu and the Ainu Culture' was enacted and implemented, and the old law regarding the Ainu was abolished.

The new law recognizes as fact that the Ainu are an indigenous people, but because it does not recognize 'indigenous rights' in the legal sense, it denies that the Ainu have any right to the return of their land or to compensation for the harm they have suffered, thereby making the law simply a means for the promotion of Ainu culture.

7) Understanding of Ainu by Japanese courts

On March 27, 1997, the Sapporo District Court stated in a decision regarding the Nibutani Dam that "As a minority people that has preserved its unique culture, the Ainu people are guaranteed the right to enjoy their culture under Article 27 of the International Covenant on Civil and Political Rights, and Japan is required under Article 98, paragraph 2 of the Japanese Constitution to honor these rights in good faith," but reserved judgment on the question of "whether this Court recognizes so-called 'indigenous rights', i.e., autonomy with regard to land, resources and government."

Chapter 7: Amerasian Issue

1. Amerasians in Okinawa

In Okinawa, which has a significant American military presence, there are approximately 3000-4000 children (called 'Amerasians') born to American soldiers or military staff and Japanese women (or other Asian women from the area, though most are Japanese). When one or both of the parents of a child living in Japan is a non-military foreign national, the foreign parent's nationality and reason for living in Japan can vary tremendously from person to person, whereas Amerasian children form a special group of children born from the union of a father who is an American who came to Japan as a soldier or military staff member and a mother who is a Japanese or an Asian woman living in Japan. Therefore, in comparison with other children having non-military foreign parent(s), Amerasian children have common problems and difficulties as described below. Furthermore, Amerasian children tend to be concentrated in Okinawa, and have common difficulties for structural reasons. That is, under the Japan-U.S. Security Treaty, 74.8% of American military facilities in Japan are concentrated in Okinawa prefecture, which accounts for a mere 0.6% of the land area of Japan (on the main island of Okinawa in particular, 18.9% of the total area of the island is used as American military base), such that the huge base is adjacent to areas where many Okinawan people live, and there are obviously a number of opportunities for American soldiers or military staff and locals to interact. Therefore, the Japanese government, which is responsible for government policies regarding the base in Okinawa, should act aggressively to solve and eliminate these problems faced by Amerasian children, and adopt any and all measures necessary to that end.

However, the Government Report does not discuss the issue of Amerasian children.

2. Naturalization

A. Conclusions and Recommendations

The Japanese government should revamp its naturalization process for Amerasian children, and when applying relief measures after the period for application for nationality reservation has elapsed, should permit naturalization based on the application of only one parent.

B. Position of the JFBA

Some Amerasian children are born in the U.S. and afterward come to Japan to live, but lack Japanese nationality despite their mothers' Japanese nationality because their parents failed to file a nationality reservation required in order to preserve Japanese nationality. In this situation, the Nationality Law provides a relief mechanism by which Japanese nationality may be re-obtained through the filing of a petition with the Minister of Justice. Regarding the filing of a petition by the persons having parental rights required to preserve Japanese nationality for a child under 15 years of age, in the case of an Amerasian child, because the law of the father's country, i.e., U.S. law, provides that in principle both parents have parental rights over a child, even after divorce, and the Japanese Civil Code provides that joint parental rights must be exercised jointly, the petition may not be filed by the Japanese mother alone, and a certification establishing the American father's assent must be submitted to the Legal Affairs Bureau, or the father must appear at the Legal Affairs Bureau to confirm his assent, or a certification that the father has renounced the child must be submitted as proof that the father's assent cannot be obtained.

However, where the parents of an Amerasian child are divorced, or where the marriage relationship has ended, the cooperation of the American father or proof of renunciation are extremely difficult to obtain as a practical matter, and strict application of the procedure outlined above restricts the possibility of the child to obtain Japanese citizenship. The problem of difficulty in obtaining Japanese nationality due to the harsh application of the naturalization procedure even where the Japanese mother has filed an application is faced by all Amerasian children, and may well constitute an discrimination in regard to the enjoyment of the 'right to nationality' set forth in Article 5(d)(iii) of the Convention on the Elimination of All Forms of Racial Discrimination. Moreover, for Amerasian children, the difficulty in obtaining Japanese nationality can give rise to serious problems. For example, it can prevent them from receiving the benefit of social rights guaranteed to Japanese, such as the right to qualify for admittance to educational institutions providing compulsory schooling. This difficulty in obtaining Japanese nationality is a serious problem and should not remain being not addressed.

In the first place, the Japanese naturalization process is intended to guarantee the right to select nationality after becoming an adult, and it is unnecessary to impose restrictions on the procedure from the standpoint of the welfare of the child. Therefore, the Legal Affairs Bureau should relax its application of the law to allow Amerasian children to obtain Japanese nationality based on an application filed solely by the Japanese mother, and should in principle accept applications from a single parent.

3. Child support

A. Conclusions and Recommendations

The Japanese government should enter into a bilateral agreement with the United States to make it easier to collect child-rearing costs from Amerasian children's American fathers living in the United States, who are obligated to provide child support.

B. Position of the JFBA

It is not uncommon to see the American father of an Amerasian child living in Okinawa return to his home country, effectively renouncing his Japanese wife and his child, and leaving them in dire economic straits. In this case, a petition for a hearing on a claim for child support may be filed against the American father in a Japanese family court, but as a practical matter it is impossible to enforce the decision of the court in America and obtain child support from the father. However, in the United States, which is the home country of the fathers of Amerasian children, the U.S. Office of Child Support Enforcement, created under federal law, collects child support at virtually no cost, and if a bilateral agreement is in place, such collection is enforced on behalf of children living in the non-U.S. signatory state. But since Japan has not reached or signed such an agreement with the U.S., the law does not permit the filing of a child support enforcement action against the American father with this office. As a result, Amerasian children are effectively unable to enforce their right to parental child support, which may well constitute a violation of Article 5(e) of the Convention. This difficulty in collecting child support from the American father, which is experienced by all Amerasian children in particular, could be eliminated on a system-wide basis through the arrangement of a bilateral agreement between the Japanese and U.S. governments, and the Japanese government should immediately seek to reach such an agreement with the U.S.

4. Right to receive education

A. Conclusions and Recommendations

The Japanese government should adopt measures to guarantee that Amerasian children receive during their schooling a multicultural education that will enable them to enjoy the cultures of both of their parents.。

B. Position of the JFBA

Because most Amerasian children have an American father and a Japanese mother, it is desirable for both the children and the parents that the children receive an education in the cultures and languages of both of the parents' countries, i.e., the U.S. and Japan. However, not only does current Japanese school education, including compulsory education, not offer this type of multicultural education, but because Amerasian children begin receiving English instruction partway through their schooling, their Japanese fluency is inadequate, and consequently they tend to achieve less in their Japanese school education, as well as suffer discrimination and bullying because they are Amerasians. As a result, some Amerasian children choose to be educated at an international school, but they are also faced to problems such as (1) many households that include Amerasian children are headed by the mother, and cannot afford the high tuition charged by such a school, and (2) the curricula offered by international schools are aimed at students who are staying in Japan for a short time and then returning to the U.S.

In light of this situation, the mothers of Amerasian children established in June of 1998 in the city of Ginowan in Okinawa prefecture the Amerasian School in Okinawa to provide multicultural schooling themselves, and is already teaching several tens of students at the compulsory education level. However, because this school is not accredited under the School Education Law, it receives no government support and is in a difficult financial condition, and only a few local governments recognize it as providing graduates with all of the material taught in the compulsory education curriculum.

In comparison with the situation enjoyed by a child whose parents are both Japanese, and who in such a case is educated regarding the language and culture of both parents as a matter of right, Amerasian children suffer discrimination in connection with their 'right to education and training' as provided in Article 5(e)(v) of the Convention, in that as a practical matter they are not guaranteed the opportunity to receive a school education that covers the culture and language of the countries of origin of both of their parents, i.e., Japan and the U.S.

Furthermore, because Amerasian children, unlike most children who are born of parents of whom either one or both is a non-military foreign national and who also share the same problem, tend to be concentrated in Okinawa prefecture in large numbers, and because 'multicultural education' in this circumstance generally refers only to the cultures of Japan and the U.S., the Japanese government must adopt and implement systematic measures, which should not be difficult. The government should guarantee Amerasians a multicultural education in the context of their school education and should provide comprehensive policies on their behalf, such as financial assistance to the Amerasian School.

Chapter 8: Problems in Penal Institutions

A. Conclusions and Recommendations

Because penal staff and foreign inmates have difficulties communicating, emotional confrontations, mutual distrust, and racial prejudice stemming from mutual misunderstandings easily occur. Nevertheless, penal staff receive no systematic education pursuant to Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination, there are no examples of penal staff receiving any sort of administrative or criminal sanction or punishment for engaging in racially discriminatory speech or conduct, and the likelihood of no action being taken whatsoever against such persons is high. These circumstances comprise a violation of Article 7 of the Convention, and may also violate Article 4(c) as well.

B. Position of the JFBA

1. Foreign penal institution inmates in Japan

Inmates in Japan are divided into two groups: those who have been convicted, and those who are awaiting a trial and verdict. Non-convicted inmates, including foreigners, are distributed among penal institutions all over Japan, but convicted inmates are further classified into two groups, i.e., inmates who are Japanese or may be treated as such, and persons who are treated differently from Japanese, or so-called F-class inmates. F-class inmates are housed in Fuchu prison if they are male, and in Tochigi prison if they are female.

The number of inmates in Japanese penal institutions totaled 52,713 (49,905 men and 2,808 women) as of the end of 1998, and 56,133 (53,141 men and 2,992 women) as of the end of 1999. Of these, foreign inmates accounted for 3,433 (3,142 men and 291 women) as of the end of 1998, and 4,053 (3,660 men and 393 women) as of the end of 1999, comprising 6.5% and 7.2% of the total inmate population in those years, respectively. By nationality, Koreans accounted for 39.5%, Chinese accounted for 25.6%, and the remainder comprised citizens from 20 other countries.

Over half of foreign inmates (65% as of the end of 1998, 68.4% as of the end of 1999) were not permanent residents at the time of their conviction. Many of these non-permanent resident foreign inmates have a low degree of fluency in the Japanese language.

2. Problems with treatment of foreign inmates

(1) In the Japanese legal system, all outside communications to or from a penal inmate that are not in Japanese must be translated, and where a face-to-face meeting is to take place with a person on the outside (a usual person), if a language other than Japanese is used, the meeting will not be allowed unless an employee of the penal institution who understands the language is present. As a result, at Fuchu prison, for example, there are staff interpreters who are capable of interpreting and translating English, Chinese, Spanish and Farsi, and who are also used for translating correspondence. It was reported that in 1995, 12,878 out of 15,893 items of correspondence involving 21 countries were translated and processed internally, and that with regard to correspondence in languages beyond the capability of the prison staff, the assistance of the relevant embassy was sought for translation. Consequently, it has been pointed out that there are extremely long delays in the prison's review of correspondence after it has been translated. For the same reason, face-to-face visits are as a practical matter restricted to conversations held only in Japanese. Accordingly, even where an inmate and visitor would be able to speak freely in a foreign language, a Japanese interpreter to interpret the conversation into Japanese would have to be located, which would be very costly.

(2) Many problems arise in connection with communication between prison staff and inmates. Even at Fuchu prison, there are only two persons who act as interpreters and translators for each of the languages of English, Chinese, Spanish and Farsi. As a result, there are many instances where the prison administration and the foreign inmates have difficulty conveying their intentions and desires, and it is not uncommon for newly arriving foreign inmates to have an inadequate understanding regarding such important matters as notification of their rights and obligations, notification of important prison rules, and sanctions imposed for failure to obey prison rules. In many cases, there is no interpreter available as a practical matter, or the quality of the interpreting is extremely poor. The results of such poor communications are apparent in the reports of inmate conduct at penal facilities. According to a survey conducted at Fuchu prison by the Legal Affairs Research Institute of the Ministry of Justice, "[t]here is a positive correlation between inmate performance and fluency in spoken and written Japanese. In general, as the inmate's proficiency in Japanese declines, his or her performance declines accordingly."

(3) There are virtually no newspapers, magazines or books available in a foreign language other than English. Even materials in English are provided only in the larger jails and prisons, and are available only in limited quantities. Materials sent from the outside, even those in English, are subject to review and censorship by the authorities, so such materials are essentially unavailable due to the cost of translation. Because foreign-language television and radio broadcasts are absolutely prohibited, foreign inmates who are not proficient in Japanese are completely cut off from their native culture. In the past, there were major problems with regard to customs and religious requirements pertaining to food, particularly for Muslim inmates who would not eat pork for religious reasons, but as jails are now allowing the bringing in of Halal food, etc., these problems are gradually being resolved.

3. Examples of the dangers of racially discriminatory treatment

Where penal staff and foreign inmates in such an environment cannot easily communicate with each other, emotional confrontations, mutual distrust, and racial prejudice stemming from mutual misunderstandings can easily arise. Incidents highly indicative of racially discriminatory treatment have been reported.

(1) An Egyptian inmate in the Tokyo jail filed suit, alleging that he was subject to continuous beatings by guards from 1993 to 1994, also alleged that guards would call him a 'beggar', and that just before being beaten, he would be told "Now you'll see what a Japanese can do. Now you won't make fun of Japanese."

(2) In a case involving alleged severe beatings administered to a Nigerian inmate at the Tokyo jail in 1994, the inmate was allegedly called a 'gorilla' by the guards, and the guards used racially discriminatory language obviously because he was black.

Despite these circumstances, there has been no systematic education of penal institution staff pursuant to Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination, there are no examples of penal staff receiving any sort of administrative or criminal sanction or punishment for engaging in racially discriminatory speech or conduct, and the likelihood that no action will ever be taken against such persons appears to be high. (Furthermore, the worrisome situation in Japanese prisons has been specifically pointed out in paragraph 27 of the Concluding Observations of the U.N. Human Rights Committee with respect to the Fourth Periodic Report of the Japanese government pursuant to the International Covenant on Civil and Political Rights (CCPR/C/79/Add. 102).

Chapter 9: Double Discrimination Against Women

1. Discrimination against Korean female students

A. Conclusions and Recommendations

As was revealed from the examples of harassment against Korean school students, the discriminatory attitude held by many Japanese with regard to ethnic minorities is compounded by a discriminatory attitude against women, and women in particular are prone to be subject to attacks and human rights infringements based on this discriminatory mindset. The Japanese government must always pay careful attention to this issue, and should promote educational activities to eliminate ethnic discrimination, as well as to eliminate the gender discrimination.

B. The Government Report

As reported in paragraph 57 of the Government Report, there were a number of incidents of harassment and violence against Korean students that occurred across Japan from the spring to the summer of 1994, and similar cases were reported after North Korea's launch of a missile in August 1998. The Government Report further states that "the Civil Liberties Bureau of the Ministry of Justice has endeavored to gather information and investigate into the facts, and in addition, for the aim of eradicating such cases, gave an order to the Regional Legal Affairs Bureau and its local offices on September 10, 1998, to strengthen the necessary measures to raise people's awareness of the issues on Koreans in Japan." However, the government's report and the actions of the pertinent government agencies indicate an insufficient understanding that harassment of Korean students represents a combination of discrimination against Koreans and discrimination against women, and that in fact, most of the victims of such discrimination are female students, and thus demonstrate an absence of such a standpoint of double discrimination in taking strong action to prevent the continuing occurrence of such harassment.

C. Position of the JFBA

The harassment and violence committed against resident Korean students in 1994 and 1998 was aimed at both male and female students, but in the 1994 incidents, women tended to be the primary victims. Women were also the victims of a large number of such attacks in 1998. The harassment and assaults aimed at female students often took the form of the ripping of a 'chima chogori' (Korean ethnic dress) and abusive language and epithets. The reason that female Korean students were the primary targets of the harassment and violence was not only that the 'chima chogori' ethnic dress worn by female students was considered an easy target for attacks based on anti-Korean discriminatory sentiment, but that Japanese society in general harbors widespread discriminatory feelings toward women, and the combination of these two phenomena resulted in a tendency for female students to be the main victims of human rights violations.

While paragraph 57 of the Government Report does note the series of attacks against female students in 1994 involving cutting of the 'chima chogori' with a knife, there is no mention of the fact that although between January and July of 1994 there were 11 reported incidents in which the 'chima chogori' was cut or ripped off of a female Korean student, in only one case was a suspect identified. In addition, as indicated in the Government Report, the efforts of the human rights organs of the Ministry of Justice to prevent a recurrence of these attacks focus on the problem from the standpoint of discrimination against foreigners, and fail to consider the fact that since the majority of the victims were female students, the incidents actually represent a combination of both anti-foreigner sentiment and the discriminatory attitude toward women that is prevalent in Japan. Therefore, the government's countermeasures against these attacks are insufficient from the start. Future policies to prevent harassment of Korean students must incorporate an understanding that it represents the product of discriminatory feelings toward both foreigners and women.

2. Female foreign spouses in international marriages

A. Conclusions and Recommendations

The national and local governments should recognize the reality that international marriages between Japanese men and women from primarily other Asian countries are a common form of marriage in modern Japan, despite criticism that such international marriages between Japanese men and Asian women are equivalent to 'trafficking in human beings', whether the marriage was arranged through an administrative body or a private party, and that there are a large number of female foreign spouses living in Japan based on such marriages, and should promote support activities similar to those carried out in Mogami for foreign female spouses who are already married to Japanese and living in Japan, particularly in the areas such as providing education in the Japanese language, promoting mutual understanding of different cultures, and providing information regarding the legal status and rights of foreign female spouses.

B. The Government Report

Paragraph 17 of the Government report states only that 17.5% of all resident foreigners living in Japan (as of the end of 1998) resided under the classification of 'Spouse, etc. of Japanese national', but does not address the problems faced by the mostly Asian women married to Japanese men and living in Japan.

C. Position of the JFBA

Beginning in the 1990's, the number of international marriages, particularly marriages between Japanese men and foreign women, skyrocketed in Japan, and their number continues to increase each year.

In 1999, there were a total of 31,900 international marriages in Japan, of which 24,272, or 76.1%, were marriages between Japanese men and foreign women. The vast majority of the foreign women marrying Japanese men came from China (32.2%), the Philippines (26.4%), North and South Korea (23.9%) and Thailand (8.3%), meaning that Asian women accounted for at least 90.8% of foreign women marrying Japanese men in that year.

The factors behind the dramatic increase in the number of marriages between Japanese men and Asian women include the government's promotion of international marriage to Asian women to combat the shortage of 'brides', particularly in the agricultural villages of northern Japan, as well as the active efforts of brokers, beginning in mid 1980's.

The arrangement of international marriages with Asian women, particularly when such arrangements are based on short-term group introductions or even photographs, has been criticized both in Japan and overseas as amounting to trafficking in human beings, as it uses economic superiority to bring in brides from impoverished Asian countries in order to maintain Japan's 'family' system. In the wake of such criticism, government involvement in such arrangements has waned in recent years, but private agents have stepped in to take up the slack. There are no laws or regulations governing the arrangement of international marriages by private parties, and in 1980's a case was reported in which an international marriage broker that enticed a Sri Lankan woman to come to Japan ostensibly in order to study, forced her to marry a Japanese man, then subsequently forged her signature on a divorce petition and submitted it, effectively forcing her to get divorced, was ordered to pay the woman 12 million yen as consolation money (Kyoto District Court decision of November 25, 1993). Another case was reported in which the mental illness of the Japanese husband of a Chinese wife whose marriage was arranged by a private organization was revealed only after the marriage, and a divorce was granted based on the wife's petition for arbitration. While these cases are extreme examples in which the marriage between the Asian woman and the Japanese man was induced through fraud or fraudulent means, where marriages are easily arranged based on insufficient disclosure of information regarding the Japanese husband candidate or the prospective bride's likely lifestyle in Japan, such marriage arrangement may lead to racial or ethnic discrimination against female foreign spouses in the enjoyment of the right to 'marriage and choice of spouse' provided under Article 5(d)(iv).

It is not uncommon for international marriages arranged by the government or by private individuals to end in divorce, either due to a breakup of the marriage relationship, or because the wife returns to her home country. In some reported cases, the foreign female spouse has suffered a nervous breakdown or other symptoms of mental illness due to stress. Some general causes underlying the failure of these marriage relationships and the emotional problems suffered by 'foreign brides' include a mutual inability to communicate with or understand the spouse due to the language barrier, insufficient understanding of each other's customs, culture and values, the absence of friends and acquaintances with which the 'foreign bride' who comes to Japan can converse in her mother tongue, pressure exerted on the 'foreign bride' by the husband and his family to adopt a Japanese name and Japanese customs, and a loss of identity that results when the foreign wife is forcibly 'Japanized' by being told that she cannot use her native language, is prevented from speaking it with her children, and is even prohibited from singing lullabies to her children in her native tongue.

There are also cases in which the Japanese husband physically abuses his foreign wife, or becomes involved with other women. Particularly where the foreign wife resides in Japan under a visa based on her status as the wife of a Japanese man, there are many cases in which a philandering or violent Japanese husband has threatened that if the wife attempted to report his violence to the police or divorce him, he would not cooperate when she sought to renew her visa, leaving the wife no option but to simply accept her fate. In areas with a large number of 'foreign brides', such as in the Mogami region of Yamagata prefecture, international social centers have been established by the local government. These centers, in liaison to local governments, public health centers, private support organizations, etc., offer a wide variety of services for such women, including information dissemination, Japanese language and literacy education, assistance with problems related to health, children and family, programs to help the foreign wife understand Japanese customs, interaction and networking with other 'foreign brides', etc. However, such progressive examples are the exception, and other local governments have been slow to adopt comprehensive programs to assist foreign wives, while the national government has taken no particular measures on their behalf whatsoever. Given the situation described above faced by Asian women involved in international marriages, which are in some cases promoted by the local governments in which the women reside, the failure of such governments and of the national government to take action to assist these women may well constitute racial or ethnic discrimination in the enjoyment of their right to education and training as provided in Article 5(e)(v) of the Convention, as well as their right to equal participation in cultural activities as provided in Article 5(e)(vi).

In light of the problems currently confronted by the mainly Asian women living in Japan as spouses of Japanese men, the national government, and particularly the local governments in the areas in which large numbers of such foreign wives live, must adopt the measures described in the Conclusions and Recommendations above.

3. Foreign female victims of international trafficking of human beings

A. Conclusions and Recommendations

The Japanese government should take the following measures immediately to address the situation faced by foreign female victims of international trafficking in human beings:

(1) The relevant government bodies (the police, the Immigration Bureau, the Ministry of Health and Welfare, and the local governments) should establish emergency shelters for foreign women who may have been subjected to human rights infringements such as trafficking in human beings, prostitution and rape, and should make the phone number and other contact information for such shelters available to such women in their native languages.

(2) Law enforcement officials from the police and the immigration bureau should focus on exposing and arresting the organized crime groups and brokers behind these problems.

(3) Government agencies should cooperate with NGOs and provide financial assistance thereto.

(4) Benefits for emergency medical expenses incurred by non-permanent foreign residents, including victims of international trafficking in human beings, should be provided under the Social Security Law.

B. The Government Report

There is no mention of these problems in the Government Report. That is, while the report does discuss illegally employed persons and illegal residents in paragraphs 18 and 19, victims of international trafficking in human beings and organized prostitution are viewed solely as illegally employed persons and/or illegal residents, and the government has never carried out an investigation regarding the number of such victims in Japan, or considered measures to address the problem.

C. Position of the JFBA

As the result of investigation and research performed by the Tokyo Bar Association No. 2 conducted based on a petition for human rights relief submitted on behalf of Asian women working in Japan by an NGO that carries out activities to aid victims of trafficking in human beings and organized prostitution, a report was issued indicating that recruiters and organizations engaging in human trafficking purvey mainly Asian women, especially Thai women, as sexual products offering large profits, and that Japanese sex-related businesses control these female victims of human trafficking and force them into prostitution, ostensibly on account of their 'debts', or for 'repayment of debt'. The number of such victims cannot be precisely determined, but the number of Thai women alone in such circumstances was estimated to range between 20,000 and 30,000 in 1994. The situation facing Thai women victims in particular is also discussed in a report by Human Rights Watch, an international human rights NGO, issued this year.

The women victims of international trafficking in human beings have their passports and personal identification taken from them in order to prevent them from fleeing, they are confined and denied contact with the outside world, they are beaten and threatened by the owners of sex- related businesses and by people who control the women, and are prevented from escaping through rape and other means, and are ultimately coerced into prostitution. In order to sap their will and force them to become prostitutes, they are commonly given sleeping pills or 'Buron' (a type of cold medicine), or are injected with drugs against their will. While the victims are sold with the intent of generating high profits from prostitution, even though in most cases they are forced to work not only as prostitutes, but also as bar hostesses, they often receive no payment, are compelled to work long hours, and are forced to work as prostitutes even when they are menstruating. Even where such women wish to escape and go to public agencies such as the police or a Labor Standards Inspection Office for help, because they don't understand the language, or because they are sold by an agent and confined or are resold immediately after they arrive in Japan and thus they don't know the lay of the land, it is extremely difficult for them to escape or seek help from a government organ. Furthermore, because these victims entered or reside in Japan illegally, they often do not reveal their plight to the government for fear of deportation.

Even though the circumstances surrounding this type of international human trafficking were made clear in investigative reports issued by the Tokyo Bar Association No. 2 and by NGOs, the Japanese government has taken no action regarding this problem other than to investigate isolated cases under the Immigration Control Act or the Prostitution Prevention Law, and has failed to implement any measures to prevent such harm or provide relief to victims from the standpoint of protecting the human rights of women forced into prostitution as a result of organized trafficking in human beings. Although many victims suffer from physical and emotional problems due to the horrible environment in which they live and work, and require urgent medical treatment and public assistance, the Ministry of Health and Welfare has refused to offer any relief, even emergency medical assistance, on the ground that the victims reside in Japan illegally. In 1995 the JFBA asked the Minister of Health and Welfare to provide emergency medical treatment to non-permanent resident foreigners, and it made the same request to the Minister in 1999 in conjunction with its issuance of an investigative report regarding a case involving an application for human rights relief on behalf of Thai victims of international trafficking in human beings. However, there has been no change in the policy of the Ministry. Consequently, the situation faced by these female foreign victims of international human trafficking may constitute racial or ethnic discrimination infringing on the victims' right to security of person and protection by the State against violence or bodily harm as provided in Article 5(b) of the Convention, their right to leave any country and return to their own country as provided in Article 5(d)(ii), their rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, and to just and favourable remuneration as provided in Article 5(e)(i), and their right to public health, medical care, social security and social services as provided in Article 5(e)(iv). Given its ratification of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in 1958, and its obligation under that treaty to protect the victims of human trafficking, the Japanese government must immediately adopt and implement measures as described above to ensure that the foreign female victims of international human trafficking and forced prostitution are afforded equal enjoyment of their human rights.

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