Statement Calling for Serious Consideration of the Opinion of the UN Human Rights Council’s WGAD concerning Detention in the Context of Migration and Complying with International Law

• Japanese

On August 28, 2020 the United Nations Human Rights Council’s Working Group on Arbitrary Detention (the “WGAD”) adopted an opinion during its 88th session (A/HRC/WGAD/2020/58, hereinafter the “Opinion”). The Opinion references two foreign nationals with pending refugee status and held in long-term detention at the Higashi-Nihon Immigration Center. The two men have been detained more than 4 years and 7 months and 5 years and 1 month, respectively. The Opinion stated that the detention of the two men was arbitrary and fell under the category of arbitrary detention, being in contravention of multiple articles of the International Covenant on Civil and Political Rights including article 9. It was the first time that the WGAD had adopted an opinion concerning any detention in the context of migration carried out in Japan.

With regard to the practice of detaining in the context of migration, the Japanese government has historically argued that the detention is carried out in accordance with domestic law, hence it does not fall under the category of arbitrary detention. The government also argued that foreign nationals who are not eligible to stay in Japan should be detained in principle to ensure their deportation as well as to prohibit them from performing any activities to stay in Japan.

As opposed to the above, the WGAD indicated clearly that the notion of “arbitrariness” is not to be equated with “against the law,” but rather interpreted more broadly, and that any detention should satisfy the requirement of necessity and proportionality and be a measure of last resort. Additionally, the WGAD underlined that the two men had lived in Japan for very long periods of time prior to their detention—13 and 30 years respectively—and placed particular importance on whether their detention could be justified by necessity or reasonableness. In light of these, the WGAD concluded that the detention in question fell under the category of arbitrary detention, highlighting that: a) the detention was contrary to the fundamental principle requiring that any detention be an exceptional measure of last resort and based on an individualized assessment of the need to detain, b) indefinite detention of individuals in the context of migration was in contravention of article 9(1) of the International Covenant on Civil and Political Rights, and c) the detention was never subject to any form of judicial review, which was in contravention of article 9(4) of the International Covenant on Civil and Political Rights.

The WGAD is composed of five independent experts appointed by the United Nations Human Rights Council. It is a part of what is known as the Special Procedures, which is the important human rights machinery of the United Nations along with its human rights treaty bodies. The Special Procedures have the mandate to investigate human rights from a thematic or country-specific perspective and report to the Human Rights Council. The WGAD receives communications as part of the investigation. In the Opinion adopted this time, the WGAD also referred to the fact that the United Nations human rights treaty bodies, including the Committee against Torture and the Committee on the Elimination of Racial Discrimination, had expressed their concerns over a span of more than 10 years about the prolonged periods of detention and the lack of judicial review. They even went so far as to point out that there was a pattern of adopting a discriminatory attitude towards individuals in the context of immigration proceedings in Japan. The Government should give serious thought to the fact that the Opinion has made a mention of the belittling attitude the Japanese Government had taken towards repeated advice from human rights treaty bodies.

As it happens, the amendment of the Immigration Control and Refugee Recognition Act is just being discussed focusing on the parts pertaining to detention and deportation. However, it is unlikely that the points highlighted clearly in the Opinion as contravening the international human rights instruments will be ameliorated, since the draft proposal reportedly does not set out a maximum detention period or provide for the judicial review of continued detention. The Japan Federation of Bar Associations encourages the Japanese Government to take the Opinion seriously and re-examine the present system for detention in the context of migration, encompassing the redress for individuals and the amendment of the Immigration Control and Refugee Recognition Act. In addition, we urge the Government to comply with international law as a member of the international community.