Statement on Supreme Court Ruling the Nationality Law Unconstitutional
Today, the Grand Bench of the Supreme Court overturned the decisions of the Tokyo High Court on two cases seeking Japanese nationality, which had denied the Japanese nationality of children born out of wedlock to non-Japanese mothers and Japanese fathers and acknowledged by the Japanese fathers after they were born, and confirmed that those children had Japanese nationality.
The state has not been granting Japanese nationality to children whose Japanese fathers and non-Japanese mothers are not legally married and the Japanese fathers acknowledged the children only after they were born.
Responding to an appeal for human rights relief filed by children in similar circumstances, the Japan Federation of Bar Associations (JFBA) issued a warning to the state in June 1996 stating that such interpretation and operation of the Nationality Law violated Article 14-1 of the Constitution guaranteeing equality under the law, Article 24 of the International Covenant on Civil and Political Rights, and Article 2 of the Convention on the Rights of the Child and thus the state should correct the discriminatory interpretation and operation of the law and further amend it to avoid raising any questions in its application.
The United Nations also recommended in the concluding observations of the Human Rights Committee (1998) concerning the fourth periodic report of Japan and the concluding observations of the Committee on the Rights of the Child (2004) concerning the second periodic report of Japan that Japan should eliminate discrimination against children born out of wedlock under the Nationality Law.
Today's ruling stated that Japanese nationality should be granted to the children because Article 3-1 of the Nationality Law requiring parents to be married for nationality to be granted to their children discriminates children born out of wedlock and acknowledged by their Japanese fathers and violates Article 14-1 of the Constitution since 2003 at the latest considering the recent circumstances that foreign countries are eliminating legal discrimination against children born out of wedlock, international human rights treaties which Japan has ratified specify that any children should not be discriminated due to their birth, and there is the diversification of parent-child relationships in the internationalization of Japanese society.
The JFBA appreciates today's ruling as a milestone decision which held that a law is unconstitutional in accordance with international human right standards.
The JFBA urges the state to immediately stop the discriminatory interpretation and operation of the Nationality Law and to provide remedies for those who are in similar circumstances and have not obtained Japanese nationality as we requested in our warning 1996. The state also should amend the Nationality Law to clarify the corrected treatment.
The JFBA also urges governmental organs to make today's ruling a turning point to eliminate various discriminatory treatments existing in Japan by complying with not only the Constitution but also international human rights law.
Japan Federation of Bar Associations
June 4, 2008