Civil and Political Rights in Japan: A Tribute to Sir Nigel Rodley [1 ed.] 0815385846, 9780815385844

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
List of contributors
Introduction
Introductory remarks
1. Hate speech and the false human rights narrative in Japan
Introduction: hate speech as a new phenomenon
International standards and Japan’s inadequate legal framework
Human rights violations by private actors: the narrative
Conclusion
References
2. Media in Japan: the muzzled watchdog
Introduction
Broadcasting law and ‘fairness’
Specially Designated Secrets Act
Kisha club and the information cartel
Conclusion
References
3. Criminal Justice reform of 2016: a solution to the infamous problems in Japanese criminal procedure?
Criminal Justice reform of 2004
Criminal Justice reform of 2016
The new bargaining system (kyōgi-gōi system)
New kyōgi-gōi system
Concerns about the kyōgi-gōi system
Conclusion
Notes
Bibliography
4. An examination of the force used by Kidoutai (riot police) and Japan Coast Guard
1 Standards
2 Reported violations
3 Conclusion
Notes
References
5. Women’s empowerment and gender equality in Japan
1 Recent historical background of Japan’s gender equality
2 Women’s participation in public life
3 Employment
4 Violence against women
5 Reproductive health and rights
6 Conclusion
References
6. Discrimination against women in the sphere of marriage and family life
Introduction
Required age of marriage
Requirement of same family name
Prohibition of re-marriage
Assumption of paternity of a child born within 300 days after divorce
Conclusion
Notes
References
7. Dōwa Policy Projects as unfinished human rights business – from Dōtaishin to Ikengushin
Introduction
The positive obligations of the state
Dōwa Policy
The Advisory Council and its report
The report
Responses to the Dōtaishin
The law
The Iken Gushin
Conclusion
References
8. Blanket police surveillance of Muslims: a chilling precedent
Introduction
Religious profiling and blanket surveillance operation
‘Results’ of the surveillance
International standards on racial and religious profiling
The Japanese courts
Ethno-religious profiling: a ‘necessary activity’
Purpose and effect and the right to manifest one’s religion
Compliance with international standards
Right to privacy
Conclusion
Notes
References
9. The Fukushima diaspora: assessing the state-based non-judicial remedies
1 Introduction
2 The housing and health impacts and the ADR process
3 The ADR process
4 The state’s remedial obligations
5 Analysis
6 Conclusion
References
10. Stratification of rights and entitlements among refugees and other displaced persons in Japan
Categories of forced migrants in Japan
Convention refugees
Indo-Chinese refugees and resettlement refugees
Persons permitted to stay on humanitarian grounds
Lawfully staying asylum seekers
Unlawfully staying asylum seekers
Problems stemming from stratification
Conclusion
Notes
Bibliography
11. Japan’s military sexual slavery: seeking reparations as on-going human rights violations
Introduction
1 The beginning: women’s movement against sexual crimes and impunity
2 Japan’s reaction
3 Slow reactions by the treaty bodies
4 Denials prompt international criticism
5 Treaty bodies responded
6 As denials continue, treaty bodies continue taking up
7 2015 Korea–Japan announcement and CEDAW
Conclusion
Notes
References
12. Japan and the international human rights procedures: the ‘han-nichi’ narrative
Introduction
International bodies: engagement with the treaty bodies
Coomaraswamy report and the ‘comfort women’
The ‘comfort women’ issue returns
Criticism from Special Procedures mandate holders
‘Just an individual’
Meeting with Guterres
Political context and Constitutional debate
Increasing strength of the right wing in the country
Conclusion
Notes
References
Index

Citation preview

Civil and Political Rights in Japan

The human rights issues in Japan are multifaceted. Over decades, domestic and international human rights organisations have raised concerns, but government obstinacy has meant there has been little progress. Recommendations of UN human rights bodies are routinely ignored, and statements by the government in the Japanese parliament regarding these recommendations have been dismissive. At the review of Japan’s implementation of the International Covenant on Civil and Political Rights in 2014, Professor Nigel Rodley, then chair of the UN Human Rights Committee, lamented the lack of true engagement by Japan and the country’s unwillingness to take any action on the conclusions of UN human rights bodies. Equally worrying is the clear trend over recent years of popular publications bashing neighbouring countries and their nationals living in Japan as well as UN human rights bodies. This book explores the issues surrounding human rights in Japan, and what the future might hold for the country. Saul J. Takahashi is a human rights lawyer currently located in Tokyo, where he is the Japan Representative for the Business & Human Rights Resource Centre and teaches human rights related courses at several universities. He is also doing research on the rights of Muslims in Japan as a doctoral candidate at Waseda University. From April 2019, he will be employed as Professor of Human Rights and Peace Studies at Osaka Jogakuin University. Takahashi has worked at Amnesty International in Tokyo and in London and for international organisations in Geneva and Vienna, and from 2009 to 2014 was Deputy Head of the Office of the UN High Commissioner for Human Rights in Occupied Palestine. He holds an LLM in international human rights law from the University of Essex and is the author of several books, including Human Rights and Drug Control: the False Dichotomy, Human Rights, Human Security, and State Security: the Intersection (ed.), and Paresuchina-jin ha kurushimi tudukeru: naze kokuren ha kaiketsu dekinai no ka [The Palestinian People Continue to Suffer: Why the UN Can’t Solve the Problem].

Routledge Research in Human Rights Law

Shifting Centres of Gravity in Human Rights Protection Rethinking relations between ECHR, EU, and national legal orders Edited by Oddný Mjöll Arnardóttir and Antoine Buyse Socio-Economic Rights in Emerging Free Markets Comparative Insights from India and China Surya Deva Comparative Executive Clemency The Prerogative of Mercy in the Commonwealth Andrew Novak Social and Economic Rights in Theory and Practice A Critical Assessment Helena Alviar Garcia, Karl Klare and Lucy A. Williams Challenging Territoriality in Human Rights Law Building Blocks for a Plural and Diverse Duty-Bearer Regime Wouter Vandenhole Care, Migration and Human Rights Law and Practice Siobhán Mullally China’s Human Rights Lawyers Advocacy and Resistance Eva Pils Indigenous Peoples, Title to Territory, Rights and Resources The Transformative Role of Free Prior and Informed Consent Cathal M. Doyle Civil and Political Rights in Japan A Tribute to Sir Nigel Rodley Edited by Saul J. Takahashi For more information about this series, please visit: www.routledge.com/Routledge-Research-in-Human-Rights-Law/book-series/HUMRIGHTSLAW

Civil and Political Rights in Japan A Tribute to Sir Nigel Rodley

Edited by Saul J. Takahashi

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Saul J. Takahashi; individual chapters, the contributors The right of Saul J. Takahashi to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Takahashi, Saul, editor. | Rodley, Nigel S., honouree. Title: Civil and political rights in Japan : a tribute to Sir Nigel Rodley / Edited by Saul J. Takahashi. Description: New York, NY : Routledge, 2019. | Series: Routledge research in human rights law | Includes bibliographical references and index. Identifiers: LCCN 2018044718 | ISBN 9780815385844 (hbk) Subjects: LCSH: Civil rights--Japan. | Human rights--Japan. Classification: LCC KNX2460 .C58 2019 | DDC 323.0952--dc23 LC record available at https://lccn.loc.gov/2018044718 ISBN: 978-0-8153-8584-4 (hbk) ISBN: 978-1-351-18003-0 (ebk) Typeset in Galliard by Taylor & Francis Books

This book is dedicated to Sir Nigel Rodley (1941–2017), professor, colleague, and friend, and to all those who dedicate their lives to advancing the cause of human rights.

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Contents

List of contributors Introduction Introductory remarks 1 Hate speech and the false human rights narrative in Japan

ix xii xix 1

SAUL J. TAKAHASHI

2 Media in Japan: the muzzled watchdog

13

SAUL J. TAKAHASHI

3 Criminal Justice reform of 2016: a solution to the infamous problems in Japanese criminal procedure?

28

KANA SASAKURA

4 An examination of the force used by Kidoutai (riot police) and Japan Coast Guard

42

AI KIHARA-HUNT

5 Women’s empowerment and gender equality in Japan

55

FUMIE SAITO

6 Discrimination against women in the sphere of marriage and family life

68

AI KIHARA-HUNT

7 Do-wa Policy Projects as unfinished human rights business – from Do-taishin to Ikengushin

84

IAN NEARY

8 Blanket police surveillance of Muslims: a chilling precedent SAUL J. TAKAHASHI

97

viii Contents 9 The Fukushima diaspora: assessing the state-based non-judicial remedies

112

TARA L. VAN HO AND THEODORA N. VALKANOU

10 Stratification of rights and entitlements among refugees and other displaced persons in Japan

128

NAOKO HASHIMOTO

11 Japan’s military sexual slavery: seeking reparations as on-going human rights violations

143

MINA WATANABE

12 Japan and the international human rights procedures: the ‘han-nichi’ narrative

157

SAUL J. TAKAHASHI

Index

176

Contributors

Saul J. Takahashi is a human rights lawyer currently located in Tokyo, where he is the Japan Representative for the Business & Human Rights Resource Centre and teaches human rights related courses at several universities. He is also doing research on the rights of Muslims in Japan as a doctoral candidate at Waseda University. From April 2019, he will be employed as Professor of Human Rights and Peace Studies at Osaka Jogakuin University. Takahashi has worked at Amnesty International in Tokyo and in London and at international organisations in Geneva and Vienna, and from 2009 to 2014 was Deputy Head of the Office of the UN High Commissioner for Human Rights in Occupied Palestine. He holds an LLM in international human rights law from the University of Essex and is the author of several books, including Human Rights and Drug Control: the False Dichotomy (Hart Publishing), Human Rights, Human Security, and State Security: the Intersection (Praeger Publishing, ed.), and Paresuchina-jin ha kurushimi tudukeru: naze kokuren ha kaiketsu dekinai no ka [The Palestinian People Continue to Suffer: Why the UN Can’t Solve the Problem] (Gendai Jinbun-sha). Naoko Hashimoto is currently a doctoral candidate at the University of Sussex (International Fellow of Nippon Foundation) and a research associate in the Refugee Law Initiative at University of London. Her doctoral thesis analyses states’ logics of admitting refugees through resettlement. Prior to her doctoral studies, she gained 15 years of practical experience in refugee and forced migration issues, working for the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), and the Government of Japan in New York, Geneva, Sri Lanka, and Tokyo, among others. She has authored many publications on refugee and migration issues and has served as an independent advisor for various projects. She regularly appears on various media as an expert on refugees and migration. Naoko holds a Master of Studies in Forced Migration from Refugee Studies Centre, the University of Oxford (as a Sir John Swire scholar), and an LLM in International Human Rights Law from Queen Mary and University College London. Ai Kihara-Hunt is Associate Professor for the Graduate Program on Human Security at the University of Tokyo. Prior to that, she has worked for the UN Office of the High Commissioner for Human Rights in Nepal and in Switzerland,

x

Contributors the Independent Special Commission of Inquiry for Timor-Leste, the UN High Commissioner for Refugees in Sri Lanka, the Commission for Reception, Truth and Reconciliation in East Timor, and two UN Peace Operations in East Timor (UNTAET and UNAMET). Her publications include Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel (Brill) and ‘Why does the immunity afforded to UN personnel not appropriately reflect the needs of the Organization?’ (United Nations Studies, vol.17). She has a Ph.D. (Law) from the University of Essex.

Ian Neary studied Japanese and Politics as an undergraduate student at Sheffield University, was a research student at Kyushu University, and then wrote a doctorate on the Suiheisha at Sussex University. He taught at the universities of Huddersfield, Newcastle, and Essex before arriving at Oxford University in 2004 and has been a visiting professor at the universities of Kyushu, Saitama, and Keio. He has produced books about the Suiheisha (1989), industrial policy and the pharmaceutical industry of the UK and Japan (1995), Human Rights in Japan, South Korea, and Taiwan (2002) and a textbook on Japanese politics, The State and Politics in Modern Japan (2002). The Buraku Issue and Modern Japan – The Career of Matsumoto Jiichiro was published in English in 2010 and Japanese in 2016. His translation into English of An Introduction to Buraku History by Teraki Nobuaki and Kurokawa Midori will be published in 2019 (by Renaissance Books) as will the second edition of his textbook (by Polity). He is currently working on an analysis of the formation and implementation of Dowa policy 1969–2002. Fumie Saito has over 15 years of experience working on public policies and projects in the field of gender equality and women’s rights in both national and international settings. Formerly a Senior Policy Coordinator for the State Minister on Gender Equality and a nationally certified senior legislative aide to parliamentarians in Japan, she successfully navigated various public policies and pieces of legislation on women’s and children’s rights such as gender-based violence and child prostitution. She has lectured on Japanese gender issues in several universities and has written numerous academic papers. One of her articles, ‘Women and the 2011 East Japan Disaster’ published in Gender and Development has been referenced in many academic papers and UN documents. Fumie holds two Masters’ degrees: Public Policy with a concentration in Women’s Studies from the George Washington University, USA, and International Human Rights Law from University of Essex, UK, as well as a Juris Doctor from Waseda University, Japan. Kana Sasakura, Ph.D., is Professor of Law at Konan University Faculty of Law in Kobe, Japan. She received her B.A. in Law from the University of Tokyo and Ph.D. in Law from Hitotsubashi University. She joined the Faculty at Konan University in 2008. During the 2011–2012 academic year, she spent a year as a visiting scholar at the University of Washington School of Law where she joined the Innocence Project Northwest and worked on DNA cases. After returning to Japan, she joined a group of scholars and lawyers concerned about

Contributors

xi

wrongfully convicted cases and became one of the founding members of the Innocence Project Japan in 2016. She is currently the Deputy Director of IPJ, and oversees the project. Her research interests include criminal procedure, wrongful convictions, forensic science, death penalty, plea bargaining, citizen participation, and media coverage of criminal cases. She often works with bar associations and is now leading an informal project team on SBS (shaken baby syndrome). She is the Executive Director of Japan Law and Psychology Society and also on the board of Japanese Association of Sociological Criminology. Theodora N. Valkanou is currently a Ph.D. fellow in International Law at the University of Copenhagen. Theodora previously worked as a Research Associate to Judge James Crawford of the International Court of Justice. She has also worked at the Directorate-General for Trade of the European Commission and in legal practice in London where she was involved in international dispute resolution issues. Her current research focuses on public international law, international environmental law, and business and human rights. Tara L. Van Ho is a Lecturer at the University of Essex School of Law and Human Rights Centre in the UK, where she is the co-director for five postgraduate taught programmes in human rights. She holds a J.D., from the University of Cincinnati School of Law (USA), and an LL.M. in International Human Rights Law and a Ph.D. in Law from the University of Essex. She was previously an Assistant Professor at Aarhus University in Denmark. Her research focuses on issues of business and human rights, investment law and human rights, and transitional justice. She is the co-editor of Human Rights and Business: Direct Corporate Accountability for Human Rights (Wolf 2015). She spent two years living and teaching English in Naraha-machi, Fukushima-ken, which inspired this book chapter. Mina Watanabe is the director of the Women’s Active Museum on War and Peace (WAM) based in Tokyo. She has been active in the field of women’s rights, especially focusing on the issue of Japan’s military sexual slavery during WWII (euphemistically referred to as the ‘comfort women’ issue). She has campaigned internationally for the rights of survivors of Japan’s military sexual slavery system and has written alternative reports for, as well as lobbied at, a range of UN Human Rights institutions. She has written a number of articles, co-authored a book, and provided talks at universities and for various audiences on this topic. She holds a B.A. from International Christian University and an M.A. from the University of Tokyo.

Introduction

This book is first and foremost a tribute to Sir Nigel Rodley, whom many of us knew as a professor, a colleague, and a friend. It is a book about civil and political rights in Japan, because that is a topic that was very close to Nigel’s heart. It has been popular in Japan since at least the 1990s to talk about a wide ranging, generalised malaise in society – bakuzen to shita fuan, or ‘a vague sense of anxiety’. Such narratives have a self-producing quality; the more they are hyped in the mainstream media, the more people start believing in them. Nevertheless, it is clear that the collapse in the ‘bubble’ economy in 1991 and the social processes that started (or became the focus of more attention) then, have had profound effects on Japanese society. The bubble economy of the 1980s was characterised by cheap money, ostentatious consumption, and what was perhaps the peak of national arrogance. Japan was number one, so many people thought, and there was no need to continue learning from others (as the country had done consistently throughout its history) – rather, it was time that the rest of the world learned from us. Terms such as yoi-shireru, or intoxication, are often used to describe the national mood during that period. As with all situations of intoxication, reality the next morning is harsh. The problems facing the country are legion, and the brittle social systems, made for another era, have proven incapable of addressing them in any meaningful way. The gulf between rich and poor continues to expand, and sizable groups of the population appear doomed to a life of precarious employment and exploitation. In this context, it is not surprising that wide swathes of the populace have lost faith in a corrupt, self-serving elite. Indeed, the problems are existential, in the true meaning of the word – a rapidly ageing society and one of the lowest birth rates in the OECD means that, mathematically speaking, Japan could literally disappear before the end of this century. The ‘solution’ offered by the right is, in essence, a return to the 1930s. Bullish nationalism, reverence for the Emperor, a strengthened role for the military in both foreign policy and domestically – all of these are elements of a ‘reborn’, ‘strong’ Japan that successive governments and right-wing elements throughout the country have painstakingly promoted. It is difficult to see how a direction that led to WWII, and nearly to national apocalypse, could be anything but a recipe for another disaster, and surveys consistently show that the majority of the populace is

Introduction

xiii

sceptical of most of these policies. It is an attestation to the current state of Japanese democracy that, despite this broad scepticism, the right continues to maintain power after each election. Indeed, with the large number of ‘dead’ votes under the first past the post system, the Liberal Democratic Party and its coalition partners retain the majority with only a little above 20 percent of the popular vote. Like in most other ‘advanced’ economies, democratic institutions in Japan are under attack, not the least from the very people who have been elected to preserve those institutions. Norms such as transparency, respect for minority opinion, and accepted process are flouted, even sneered at by people in power. Corruption scandals that would have toppled governments before lead to no resignations, and high ranking civil servants who helped cover up for politicians are brazenly given promotions for their loyalty. Oppressive pieces of legislation are rammed through parliament with only a façade of debate, above howls of public protest. Just some examples of this (many of which are examined in this volume) include the Specially Designated Secrecy Act, which gives the executive almost unfettered power to designate information as national secrets and which provides for long imprisonment for not only civil servants, but also journalists and citizens who share secret information; the Conspiracy Act, which can be used to suppress peaceful dissent and can have a potentially chilling effect on civil society; laws allowing the government to dispatch military forces abroad with a minimum of parliamentary scrutiny; and a recent law cynically setting a ‘limit’ on overtime for workers at the officially recognised ‘karoshi (death from overwork) line’ of 100 hours overtime per month (while at the same time creating an entire category of workers exempt from any overtime restrictions). Polls show that all of these bills were opposed by a majority of the populace. And if even minimal parliamentary debate is too contentious, why bother? Longstanding government policy prohibiting weapons exports, a pillar of post-war diplomacy, was simply discarded with one Cabinet decision. Underpinning these issues is the question of Constitutional reform, and continuing efforts by the Japanese right (in particular the Liberal Democratic Party) to change the post-war Constitution. As noted in some chapters in this volume, if the LDP had its way, human rights would be subject to sweeping restrictions on the basis of ill-defined concepts of ‘public interest’ and ‘public order’, and, indeed, emergency provisions would be created that, if invoked, would reduce human rights protection within the country to a mere aspiration. These debates are particularly crucial since, unlike in Germany or Italy, Japanese fascists were not voted into power – they didn’t have to be, because the pre-war Constitution allowed concentration of power in the hands of the executive and the military, making the elected government effectively irrelevant. In this context, the emergency provisions that the LDP wants to re-introduce are particularly chilling. Nevertheless, it is important to recognise that, as lawyers, we tend to overestimate the importance of the letter of the law, and overlook (or underestimate) underlying social trends. Besides being a legal document, the Constitution also has immense symbolic value, as the core of the post-war democratic and pacifist regime. In reality the government has had little difficulty in adopting laws and

xiv Introduction policies that blatantly violate not only international human rights standards but arguably various Constitutional safeguards as well. Given the time and effort required to institute Constitutional amendments, the right could well do with simply continuing to ignore the document. They do not, indeed cannot, do so precisely because of the perceived importance of destroying the post-war regime once and for all, not just in practice but in a formal sense. In other words, tearing up the current Constitution is crucial for the right not just because of what the Constitution says, but because of what it stands for. In this regard, the debate surrounding the Constitution, and surrounding human rights in general, is inseparable from issues of responsibility for wartime abuses – in particular the so-called ‘comfort women’ issue, where these debates play out in the most acrimonious fashion. The right has successfully promoted the narrative that the entire ‘comfort women’ story is a fabrication, a scam used by nefarious foreigners (mainly Koreans and Chinese) and leftist, ‘anti Japanese’ elements within the country to smear the upright people of Japan. Since Japan did nothing wrong, there is no question of taking responsibility – and since the entire post-war regime is built on the foundation of Japan’s responsibility for the war, it too is a con designed to suppress the true strength of the Japanese nation. Nigel was one of the few prominent international human rights personalities to detect these trends in Japan, and the increasing leaning towards authoritarianism. For many years Japan got away with a lot – the country managed to escape sustained scrutiny from international human rights actors, partially because of the elephants next door, partially thanks to effective branding of Japan as a ‘soft’ country. Human rights actors had bigger fish to fry in the region, and were generally not overly interested in a country that did not appear to have serious problems. Nigel understood where Japan was heading, and always remained concerned about human rights in the country. On many occasions, he mentioned that he wanted to visit Japan in whatever official capacity he held at the time – unfortunately this was not to happen, but it was a country close to his heart. As Chairperson of the Human Rights Committee, he had very harsh words for the delegation at the review of Japan’s state report in 2014: while recognising that human rights were respected ‘overall’ in the country, he insisted on pointing to the glaring deficiencies in Japan’s record, and on the government’s longstanding intransigence in refusing to address them. As he always was, Nigel was persistent at this session, and did not tolerate the usual prevarications. He was near the limit of his patience with the government, but on a more fundamental level it was because, like all true activists, Nigel understood that ‘overall’ situations count for very little in human rights. On a macro, ‘overall’ level, Japan may compare favourably with China, North Korea, or others, it is true. However, to the criminal suspect tortured in a police lock-up, a refugee refused protection, or a war time ‘sex slave’ refused adequate recognition or compensation, ‘overall’ is meaningless. Nigel understood that, and used every opportunity to impart that perspective to his students and colleagues, not the least through example. He will be sorely missed.

Introduction

xv

This book is largely the brainchild of Ai Kihara-Hunt. Besides contributing two very important chapters, Ai had the initial idea of the project, and we worked closely on formulating the concept, finding contributors, and many of the other time consuming (and somewhat mundane) tasks that come with bringing together a volume of this nature. *** The wide range of human rights issues in Japan means that no one book could possibly be comprehensive. We set out to provide an overview of some (certainly not all) of the most prominent civil and political rights in the country, mainly because those were the issues Nigel focused on for most of his adult life. However, limiting the subjects to civil and political rights naturally meant that we were unable to cover the wide spectrum of economic, social, and cultural rights issues, the situation of which is becoming increasingly problematic in Japan. In recent years poverty – rather, sheer deprivation – and the increasing gap between rich and poor have increasingly become a topic of contentious public debate. In May 2018, the Special Rapporteur of Poverty and Human Rights and other UN human rights experts issued a statement calling on the government to refrain from planned cuts in income support, stating that the ‘minimum living costs determined on this basis do not embody an adequate standard of living as required by international human rights law’. As in every country in the world, there is of course a strong nexus between the enjoyment of economic, social, and cultural rights on the one hand, and civil and political rights on the other, in Japan. Just one result of the discrimination against women that is prevalent in nearly all areas of life in the country is the shocking poverty rate of 50.9 of households led by single mothers – nearly two and a half times the OECD average of 20.9 percent. In one of the largest and most advanced economies in the world, the average income of single mother led households is a pitiful JPY 1,790,000, not even USD 17,000 – even though 80 percent of single mothers work full time. According to one government survey, nearly one in three Japanese working women have been subjected to sexual harassment in the workplace, and until a supreme court case in 2014, it was common practice for women returning from maternity leave to be demoted, effectively penalised for having children. Discrimination against Korean residents of Japan also takes place in a wide range of areas affecting economic, social, and cultural rights. In a blatant violation of the right to education, in 2016, the government instructed municipalities to ‘consider’ cutting subsidies given to Korean schools (attended mainly by North Korean children), citing recent nuclear tests by North Korea. Most Koreans still go by their unofficial ‘Japanese’ names to obtain employment. Another nexus, one that has received very little attention, is that of criminal justice and poverty (or social class in a broad sense). As noted by Kana Sasakura in a chapter in this volume, and by this author elsewhere, criminal suspects in Japan are as a general rule detained in police lock-ups (daiyou kangoku: ‘substitute

xvi Introduction prisons’) for up to 23 days. During this period suspects have only limited access to lawyers or to anybody in the outside world, and are subjected to excessively long interrogation sessions, sleep deprivation, and even physical beatings in an effort to extract ‘confessions’. Unsurprisingly, wrongful convictions are not uncommon, and daiyou kangoku has been the subject of longstanding opprobrium by international and domestic human rights actors. Nigel, when he was chair of the Human Rights Committee, criticised the government for maintaining the system ‘despite its manifest incompatibility’ with the ICCPR. A recent effort at reform failed to produce results. However, what is noteworthy is that the momentum for reform was sparked by the case of a career civil servant, an elite in the social hierarchy. It is difficult to envision such public outcry regarding criminal justice, had the wrongly convicted person been just another down and out. Even with regard to civil and political rights, there are numerous issues that could not be given adequate coverage in a volume of this nature. For example, government obstinacy in the face of recent ‘revelations’ that over 15,000 people had been forcibly sterilised under Japan’s eugenics law is reminiscent of the official refusal to accept responsibility for the sexual slavery during the war. Many politicians appear to want schools to be fora for indoctrination into nationalistic thought – already teachers are punished for refusing to stand for and sing the national anthem at graduation ceremonies. The exploitation of foreign labour, in particular labourers working in Japan under the Technical Intern Trainee Programme, is a longstanding issue that has been the subject of much international criticism. And while Naoko Hashimoto has contributed a thought provoking chapter on the differing treatment afforded to different categories of forced migrants in Japan, we have not been able to give sufficient examination to the problem of refugee status determination, and the general unwillingness of the government to fulfil its obligations under the 1951 Refugee Convention. Nevertheless, this volume provides a valuable overview of many of the main civil and political rights issues that Japan faces at this moment, and the measures – if any – taken by the government to address them. It is our sincere hope that it will be a useful tool for scholars, advocates, and students of human rights. In his chapter on freedom of expression, Saul Takahashi elaborates on the official and unofficial structures that prevent the Japanese media from fulfilling their role as the fourth estate of democracy. In particular, the ‘kisha club’ system institutionalises access to journalism, and forces media outlets to sanction journalists that do not abide by ‘the rules’. Sasakura focuses on recent reform of criminal justice procedure in Japan, in particularly the introduction of a system similar to plea bargaining. She notes several deficiencies in the new system, and argues that, contrary to its initial intent, the reform has strengthened the hand of the prosecution even further. Kihara-Hunt explores another area of law enforcement, namely the policing of demonstrations. Examining the actions of riot police and other agencies in response to recent sit-ins against American military bases in Okinawa, she finds a multitude of issues to be raised, including potential excessive use of force.

Introduction

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Fumie Saito shows in her chapter how Japan still lags far behind other OECD countries in measures of gender equality. Efforts by the government, spurred mainly by civil society, have brought about progress in some areas over the years. However, it has also led to a backlash by conservative actors, who continue to argue for a subservient role for women. Gender equality is also the focus of a chapter by Kihara-Hunt, who examines discrimination against women in various areas of Japanese family law. Though the subject of public debate within the country, some of the issues have not received sustained international attention. As with other areas of women’s rights, the little progress that has been made has been extremely slow. Hate speech in Japan has been the subject of increased attention in recent years. In his chapter on the subject, Takahashi shows how government measures have been inadequate. He also argues that the hate speech issue fits neatly into the dominant human rights narrative in Japan, namely that human rights are only violated by private actors, not by the state. Ian Neary examines government measures to ensure the rights of the burakumin, and whether those measures can be said to fulfil Japan’s positive obligations to combat discrimination against that minority group. He notes that official efforts have fallen short in several key areas, and that discrimination remains pervasive even after 30 years of government action. A chapter by Takahashi on police surveillance of Muslims in Japan shows how ethno-religious profiling has become official policy, with every individual belonging to that religious minority ipso facto deemed a national security risk. This narrative has been adopted not only by the police and the mainstream media, but by the Japanese judiciary as well. Tara Van Ho and Theodora Valkanou examine an often overlooked aspect of the Fukushima disaster, namely the procedures available to provide compensation to persons who were forced to evacuate the vicinity of the nuclear reactor. Examining their compatibility with Japan’s obligations under human rights norms, they find the procedure wanting in several respects. Hashimoto writes on the differing rights and entitlements afforded to forced migrants in Japan, depending on their legal status and the manner in which they came to the country. She concludes that this stratification derives from a perceived overriding imperative on the part of the government to control the country’s borders, even though the policies adopted to that end may violate the country’s obligations under the 1951 Refugee Convention. Mina Watanabe examines the ongoing government refusal to admit responsibility for the wartime sexual slavery of the so called ‘comfort women’, and notes how international human rights bodies have increasingly focused on the issue. Noting that the continuing failure to provide a remedy means that the rights of the victims continue to be violated, she argues, inter alia, for a gender sensitive approach to Japan’s human rights obligations. In a chapter on Japan and the international human rights mechanisms, Takahashi shows how the ‘comfort women’ issue has acted as a catalyst for Japan to adopt an increasingly recalcitrant, uncompromising stance towards human rights

xviii Introduction bodies. Takahashi argues that a narrative is being propagated whereby han-nichi (anti Japanese) actors, including the UN and ‘leftists’ in Japan, are spreading falsehoods against the country, and notes that this narrative could have potentially disastrous implications for human rights.

Introductory remarks

The loss of the human rights champion Sir Nigel Rodley was a shock to human rights defenders, people in UN human rights circles, students, victims and survivors of human rights violations, people who are struggling to claim their human rights, and all those who are standing together with marginalised people, trying to make the world a fairer place. The loss is felt by the world. This, I believe, is a correct statement. However, it does not feel completely right. It is because what urged me to initiate this book project is not to commemorate this person described. It is not Sir Rodley that I wished to dedicate a book for, but Nigel, who came to the presentation of my Ph.D. research, sat in the very front row, nodding and frowning at each sentence I delivered, who patted my shoulder and commended how incredibly astonished he was at my findings, that made me want to do something to commemorate his departure. It is Nigel, who, even after having spent all his life for human rights, was always curious at new findings and still angry at serious human rights violations, who moved us. It is Nigel, who was apparently telling some students at the University of Essex to come look for me at the UN Office of the High Commissioner for Human Rights (UN-OHCHR) if they were visiting Geneva (so I was told by those students), whom I wished to show my utmost respect for. At that time I was a junior officer at the OHCHR, and the University of Essex has dozens of graduates at the office, so, why would he recommend that they look for me? It was that human touch, his care for other people, and his openness and ability to connect to people as people that moves people. There are not too many people who can be a world leader of something and still connect to everyone individually. I feel privileged to have been one of those thousands, or maybe tens of thousands, around him. This particular idea of having human rights issues in Japan compiled in English and dedicating it to him occurred to me largely because of his statement as the chairperson of the Human Rights Committee, after the Committee’s review of the situation in Japan in 2014. He showed dismay, very politely and gracefully, that the delegation may have sensed that the Committee’s recommendations are ‘simply not taken into account, they are not acted on’, and the process of Japan’s reporting and the Committee’s recommendations ‘becomes a very repetitive process, which may not be, to put it mildly, the best use of resources.’1 There are

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Introductory remarks

contributions to be made, I thought, to move past that repetition. Experts at human rights mechanisms, like Nigel, might benefit from a compilation on the human rights situation in Japan. Human rights defenders may be able to use a handy compilation of human rights issues in Japan. There is work to be done from where Nigel left. That is what triggered this project. To me, Nigel was always a model of the ‘civil and political rights’ person. I loved the times Nigel would pop by the office of Françoise Hampson, my former Ph.D. supervisor and Emeritus Professor at the University of Essex, for what was supposed to be a quick administrative conversation but quickly developed into a discussion of new cases at regional human rights courts or on engagement with civil society groups in many corners of the world. I loved their analysis and criticism, blunt but aimed at finding a solution, or even at constructing a solution. I wish for us to also remain constructive in our work, in this book and beyond. I would be honoured if this book could contribute to the analysis on some of the issues that Nigel wished to work on further. To Nigel, to our friend.

Note 1 The statement was made on 16 July 2014. It is audible at CH True Japan, ‘CCPR Chairperson Sir Nigel Rodley’, 14 November 2014, www.youtube.com/watch?v= rxvilKtrq-c, accessed 23 August 2018.

1

Hate speech and the false human rights narrative in Japan Saul J. Takahashi

Introduction: hate speech as a new phenomenon Starting in the early 2000s, Japan witnessed a sudden and dramatic increase in hate speech, in particular demonstrations aimed at propagating and promoting racial discrimination. Seemingly out of nowhere, right wing extremists organised numerous processions in public spaces spewing racial and violent epithets, with the clear aim of inciting racial hatred. In a society where overt expressions of discontent are generally frowned upon, many Japanese were shocked at the repeated scenes of masked groups numbering in the hundreds openly threatening violence, mainly towards resident Koreans and Chinese. A compilation of recorded scenes from these demonstrations viewed by the Committee on the Elimination of Racial Discrimination (CERD) upon review of Japan report in 2014 show marchers with megaphones in Korean neighbourhoods screaming ‘roaches go home’, ‘kill all the roaches’, and that they would ‘do a Nanjing massacre to [Koreans] again’ if they did not leave the country (Committee on the Elimination of Racial Discrimination 2014b). Anti racist organisations held counter demonstrations, with ensuing scuffles and arrests (see e.g. Network for the Elimination of Racial Discrimination in Japan (ERD-Net) 2013). Japan is hardly a stranger to shows of force by right wing extremists: for decades, right wing organisations have roamed the streets with large black trucks and oversized speakers, blaring militaristic songs and oration with impunity. With heavies in military style uniforms and mobster style haircuts, such organisations can be threatening, which is presumably their goal: however, they generally steer clear of openly advocating violence. The hate demonstrations of the 2000s, however, are a new breed. Unlike the organised, relatively disciplined groups of before, they stem from a scattered and disparate grass roots conservative movement in the country. Connected mainly through the internet, this movement has achieved strong momentum in recent years, and has been successful in advancing some of its views into the mainstream. The practically countless number of books and other publications bordering on hate speech towards Koreans and Chinese (though not necessarily nationals of those countries resident in Japan) accelerated efforts by the government to deny its human rights abuses during the war, and the overall rise in political power of

2 Saul J. Takahashi Nippon Kaigi and other extremist organisations are evidence to this effect. There can be little doubt that this overall climate has worked towards emboldening organisations with more inclination towards ‘direct action’ to take their hateful views to the streets. Government data suggests that there have been fewer marches in recent years (Jinken Kyouiku Keihatsu Suishin Senta 2017: 33). However, it is notable that such actions were unheard of until relatively recently. Even at its current reduced level, on average at least one hate speech demonstration takes place somewhere in the country every day (Jinken Kyouiku Keihatsu Suishin Senta 2017: 33). Hate speech in Japan is directed mainly towards Koreans in the country, predominantly those with permanent residency status. Japan forcibly annexed Korea in 1910, and, though subject to wide ranging discrimination and abuse, Koreans were automatically afforded Japanese citizenship, and with authorisation could reside in Japan. As many as two million Koreans had migrated to Japan by the end of WW2 in 1945, some of whom were forced to work in Japan’s military industry complex or as sex slaves. In 1952, immediately upon the end of American occupation, Japan unilaterally revoked the citizenship of all Koreans residing in the country, forcing them to either ‘return’ to a newly independent Korea or live in Japan as foreign nationals, with no special dispensation for their historical circumstances. Widespread international condemnation of this policy over decades finally led to the adoption of new legislation in 1991, which affords special permanent residency status to Koreans who migrated to Japan before the end of WW2 and their descendants. Though almost 700,000 Koreans obtained permanent residency pursuant to this new policy, the number has been steadily declining, largely due to the increasing number of Koreans who choose to obtain Japanese citizenship: government statistics show that, as of the end of 2017, only just under 330,000 persons held the special status (Houmushou 2018). Despite the large number of at least legally assimilated Koreans, 600,000 is the generally cited figure of Korean residents, and discrimination against Korean residents remains widespread, in particular in the area of employment. Hate speech in Japan, therefore, is inextricably linked with the public debate surrounding Japan’s human rights violations during the War, in particular with increasing efforts on the part of the right wing (including many conservative politicians) to deny outright that violations even took place. Put simply, recognition of past injustices logically leads to the conclusion that Korean residents in Japan must be treated in accordance with their historical circumstances. Denial of those injustices, on the other hand, leads to suspicion and hostility. The most prominent organisation propagating hate speech targeting Korean residents is the Zaitoku-kai, short for Zai-nichi tokken wo yurusanai shimin no kai, or ‘citizens who will not allow special privileges of Koreans’. Formed in 2007, the Zaitoku-kai propagates a narrative of victimhood similar to that of racist organisations in other countries: it claims that Koreans cheat the welfare system, do not pay taxes, and that crime committed by Koreans against Japanese is rampant yet goes unreported in the mainstream media (see e.g. Zaitoku-kai 2007). Naturally, none of these claims has any basis in reality, but prominent figures connected with

Hate speech and false human rights 3 Prime Minister Abe have made similarly outlandish assertions, in particular accusing the media of avoiding the publication of the names of criminal suspects when they are Koreans (Huffington Post 2016). After natural disasters, wild stories on social media of Koreans ransacking empty homes and committing other crimes have gone viral (Mainichi Shimbun 2014). These are reminiscent of unfounded rumours of Koreans poisoning wells that spread after the great Tokyo earthquake in 1923, and which led to mass vigilante killings of Koreans throughout the city – atrocities which, like those committed during the War, prominent right wing politicians appear to be moving towards denying as well (Yoshikawa 2017). In addition, security related concerns regarding North Korea’s abduction of Japanese and the country’s nuclear programme has added fuel to the fire, legitimising in the eyes of many the notion that North Koreans in Japan are a fifth column in the country. Zaitoku-kai regularly targets Korean schools (which are predominantly attended by North Koreans) in the country, demonstrating in front of school gates and hurling racial insults at the students (though, as discussed later, the courts in some jurisdictions have been relatively open to restricting such activities). In March 2016, the government requested local authorities to terminate educational subsidies for Korean schools, stating openly that the measure was in response to nuclear activities by North Korea and that the loyalty of the schools to Japan was in question (Yomiuri Shimbun 2016). In February 2018, Ruriko Miura, a right wing scholar with ties to the government, made the unsubstantiated claim that there were North Korean ‘sleeper cells’ throughout the country (Sankei Shimbun 2018).

International standards and Japan’s inadequate legal framework International human rights law is clear that states must prohibit hate speech. ICPPR Article 20(2) states that ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ ICERD Article 4 goes further, requiring in 4(2) that state parties: declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof. Under Article 4(3), state parties must also ‘prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law’. The treaty body charged with monitoring ICERD, the Committee on the Elimination of Racial Discrimination (CERD), has published several general comments on this Article and the nature of state obligations under it. In the most recent one, in 2013, CERD ‘[recalled] the mandatory

4 Saul J. Takahashi nature’ of Article 4, noting that it was recognised as ‘central to the struggle against racial discrimination’ during adoption of the Convention (Committee on the Elimination of Racial Discrimination 2013: 4). Nevertheless, Japan lodged a reservation to Articles 4(2) and 4(3) upon ratification of ICERD, stating it would ‘[fulfill] the obligations under those provisions to the extent that fulfillment of the obligations is compatible with the guarantee of the rights to freedom of assembly, association and expression and other rights under the Constitution of Japan’. Relevant in this regard is the lack in Japan of comprehensive anti discrimination legislation. Both CERD and the Human Rights Committee, which monitors application of the ICCPR, have been consistent in calling on state parties to adopt comprehensive legislation prohibiting all forms of racial and other discrimination. Despite being state party to both of the above conventions, Japan shows no sign of doing so – a stance subject to persistent criticism at successive reviews by these and other human rights treaty bodies (see e.g. Committee on the Elimination of Racial Discrimination 2014a: 2–3; Human Rights Committee 2014: 3–4). The government’s argument has long been that there is no need for such laws, since the Constitution guarantees equality before the law. However, though the relevant Article in the Constitution, Article 14, states ‘All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin,’ the Japanese text says ‘Subete kokumin ha’, more properly translated as ‘nationals’ or ‘citizens’. In other words, the Article applies only to Japanese citizens, not foreign nationals – a deficiency conveniently glossed over by the government (see e.g. Government of Japan 2012: 4). Japan became state party to ICERD in 1995, 30 years after adoption of the convention by the UN General Assembly. Yasuko Moro’oka notes that this long time span is in sharp contrast to most other human rights conventions, which Japan ratified much quicker after adoption, and argues that this is indicative of the government’s passive attitude towards the eradication of racial discrimination. She also points out that, contrary to the other conventions, where significant legislative changes were made upon ratification, no new legal provisions were prepared upon ratification of CERD (Moro’oka 2013: 71–73). As mentioned earlier, far from legislating proactively, Japan lodged a reservation to Article 4. On the occasion of the first review of Japan’s implementation of the Convention, CERD already: [expressed] concern that [the] interpretation [in Japan’s reservation] is in conflict with the State party’s obligations … article 4 is of mandatory nature … and the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the rights to freedom of opinion and expression. (Committee on the Elimination of Racial Discrimination 2001: 3) The McLean case of 1978 is often cited as the leading precedent regarding the rights of foreign nationals in Japan. Ronald McLean, an American national teaching in the country, had been refused an extension of his visa because of his

Hate speech and false human rights 5 participation in an anti Vietnam war demonstration. The Supreme Court found in favour of McLean, stating that constitutional rights that are not explicitly or, by their substance, implicitly limited to Japanese nationals can also be exercised by foreign nationals in the country (Saiko Saiban-sho 1978). Nevertheless, as pointed out by Moro’oka, the court also stated that the rights of foreign nationals are guaranteed ‘only within the framework of immigration controls’, restricting this seemingly liberal view (Moro’oka 2013: 196). The courts have subsequently found no issue with the fingerprinting of foreign nationals (Saiko Saiban-sho 1995), the exclusion of Korean permanent residents from managerial positions in the civil service (Saiko Saiban-sho 2005), and other openly discriminatory practices. Hebon Shin argues forcefully that the McLean precedent has for all practical terms been superseded by Japan’s 1979 ratification of ICCPR (Shin 2013: 58–60). However, the Japanese judiciary has yet to subscribe to this view, and is in general reticent of arguments based on international standards. The government initially attempted to shirk off the rising tide of domestic and international criticism of its inaction on hate speech. In Japan’s state report to CERD in 2013, the government argued that it ‘[did] not believe that, in presentday Japan, racist thoughts are disseminated and racial discrimination is incited’ to the extent that new legislation was necessary (Government of Japan 2013: 15). Nevertheless, the government was finally forced to take action, and in May 2016, parliament adopted legislation against hate speech (titled ‘Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan’ – see Government of Japan 2017: 11). This law aims at eradicating ‘unfair discriminatory speech and behaviour to incite the exclusion of persons originating exclusively from a country or region other than Japan or their descendants and who are lawfully residing in Japan from the local community’ (Article 2). This law has received criticism for being inadequate in several areas (see e.g. Nihon Bengoshi Rengo-kai 2016). The definition of prohibited speech contained in Article 2 of the law is restricted only to speech directed at lawful residents of the country, thereby excluding persons in Japan without legal status. In addition, the law only attempts to address discrimination based on nationality, and not any of the other prohibited grounds enumerated in CERD, i.e. ‘race, colour, descent, or national or ethnic origin’ (Article 1). However, perhaps the most glaring flaw with the law is that there are no penalties – as noted by Koji Higashikawa, it is mainly a ‘general statement’ (Higashikawa 2018: 4) against hate speech, encouraging the government and local authorities to take what the law states to be ‘appropriate’ measures. The government is open about this in its 2017 report to CERD, citing the preamble of the law in stating that the purpose of the law is to ‘spread awareness among the general public and to promote their understanding and cooperation through further human rights education and awareness-raising activities’ (Government of Japan 2017: 26). The August 2018 CERD session is noteworthy in that it will be the first treaty body review of Japan since the hate speech law came into force. Even with hate speech itself not prohibited, the authorities can restrict hate demonstrations on other grounds, though they have generally been reticent to do

6 Saul J. Takahashi so. In one particularly egregious case in 2009, four Zaitoku-kai members (including the head of the organisation) burst into a Korean school in Kyoto, causing damage to the premises. These four were prosecuted on charges related to forcibly obstructing business and exhibiting threatening behaviour, and received sentences ranging from one to two years – though the sentences were suspended (see Kyoto Chiho Saiban-sho 2013: 13). The court also ordered the Zaitoku-kai to refrain from demonstrating within 200 metres of the school. The government mentions this case in its report to CERD, presenting it as ‘one example of a successfully prosecuted case’ (Government of Japan 2017: 32). As further evidence of progress, the government then lists two other court judgments on hate speech cases: one in Osaka in 2014, and another in Takamatsu in 2016, noting that specific references were made in both of these court judgments to the provisions of ICERD (Government of Japan 2017: 33, 34). This is arguably misleading: the other cases are civil suits, where the victims brought cases demanding damages (in fact the Osaka judgment is simply a civil suit brought forward by the victims of the Kyoto school attack: see Osaka Koutou Saiban-sho 2014). It is obviously positive that those cases have resulted in favourable outcomes for the plaintiffs, and that, in a departure from prevailing practice, the judiciary has started to be proactive in citing standards of international human rights law. Nevertheless, the fact remains that, in the absence of any criminal legislation prohibiting hate speech, it is incumbent upon the victims of hate speech to bring forward cases using their own means. The considerable resources involved in terms of time and finances dissuade all but the most dedicated (or wealthy) victims from resorting to legal recourse. In the absence of strong action from the government, some local authorities have taken their own steps. Notable is the local ordinance of the city of Osaka, which was adopted in early 2016 and which defines hate speech for the first time in Japanese legislation. The definition is considerably narrower than Article 1 of ICERD, in particular in its sole focus on discrimination on the basis of ‘race or ethnic origin’ at the exclusion of other forms of discrimination. Nevertheless, it avoids the other obvious failings of the national law, and establishes a system whereby the city publishes, in a ‘name and shame’ fashion, perpetrators of hate speech (Osaka-shi 2017). In November 2017, the city of Kawasaki announced it was planning to adopt a policy prohibiting the use of public spaces for hate speech. The policy, which came into force in June 2018, uses the definition in national law (Kawasaki-shi 2017: 2).

Human rights violations by private actors: the narrative With regard to hate speech in Japan, therefore, the glass is perhaps half full. National legislation remains inadequate, but the government has recognised hate speech as a problem, and has taken some steps in that regard. Some local authorities, in particular in locales particularly affected by hate speech demonstrations, have adopted measures that go beyond the national framework. However insufficient, it would be unfair to say that nothing is being done.

Hate speech and false human rights 7 At the same time, it should be noted that the issue of hate speech fits perfectly the dominant narrative in Japan surrounding human rights, namely that human rights violations are committed by private actors, i.e. citizens vis-a-vis other citizens. In the minds of most Japanese, the term ‘human rights’ refers to issues such as discrimination in hiring and promotion, abuse of elderly people in retirement homes, violations of privacy by journalists, and bullying at schools. Those are no doubt serious issues, but human rights is first and foremost a legal framework that exists to protect persons from arbitrary actions of the state. The state also has an obligation to ensure that human rights are respected by private actors within its jurisdiction, but this too is a matter of state responsibility. These fundamental principles of human rights law are completely absent in the Japanese narrative, where it is private actors who are to blame, and the state is but a benevolent, paternal figure that gently scolds wayward children where necessary and redirects them to the correct path. Indeed, a case in point is the Hate Speech Act itself, which, before stating any actions to be taken by the central government or by local authorities, demands that the people must ‘further their understanding of the need to eliminate unfair discriminatory speech and behavior against persons originating from outside Japan and shall endeavor to contribute to the realization of a society free from unfair discriminatory speech’ (Article 3, translation in Government of Japan 2017: 26). In 2016, the Ministry of Justice commissioned the ‘Foreign Residents Survey’. The first official survey of its kind, the survey is notable in that it states clearly that its objective is to gauge the human rights issues faced by foreign residents in the country (Centre for Human Rights Education and Training 2017: 2). Nevertheless, the questions asked in the survey focus solely on discriminatory actions by private actors, such as discrimination in employment and housing, or being refused entry into restaurants (as well as hate speech). Utterly absent from the survey is any mention of the countless reports of arbitrary stop and search practices on the part of the police (Japan Times 2017), ill treatment in immigration detention centres (Reuters 2017), overly restrictive policies towards refugees (Tokyo Shimbun 2017), or any other violation for which the government bears direct responsibility. In addition, similar to the hate speech law, the survey was directed only towards lawful residents of the country (there is even a question asking respondents to list their immigration status), and therefore incomplete from the outset. It is not clear whether any concrete action is planned on the basis of this survey. Of course, all of the issues of discriminatory treatment by private actors could be addressed by the kind of strong and comprehensive anti-discrimination legislation that the treaty bodies have successively requested Japan to adopt. Unsurprisingly, the notion that human rights violations are committed only by private actors is promoted heavily by the government, together with the belittling of human rights protection as being constituted of problems that can be solved easily by persons merely being considerate of others. Human rights is reduced from a shield to protect against arbitrary state actions and trivialised as simple misunderstandings or a lack of compassion.

8 Saul J. Takahashi One only need to look at the promotional material of the Human Rights Bureau (HRB) of the Ministry of Justice to see this narrative at work. For years, international human rights bodies have urged Japan to establish an independent human rights institution, and the country’s reticence to take any meaningful action on this point has been the subject of longstanding criticism. The main rebuttal of the government for many years was that the country already had an institution dedicated to the protection of human rights – namely the HRB. However, the HRB is not an independent body: it is under the direction of the Minister and staffed completely with career civil servants, and is therefore clearly not compliant with the 1993 Principles relating to the Status of National Institutions (the Paris Principles). In 2012, the Democratic Party government submitted a bill to create an independent human rights institution in compliance with the Paris Principles; however, the Liberal Democratic Party (LDP) returned to power almost immediately afterwards, and the bill was for all practical purposes abandoned. Since then, at treaty body sessions the government has revised the argument that the HRB operates as a human rights institution, instead outlining the 2012 developments and stating that government consideration of a ‘desirable framework [for a human rights institution] is being appropriately discussed’ (Government of Japan 2017: 27). Interestingly, these statements would seem to indicate a recognition that the HRB cannot be said to be a national human rights institution in accordance with international standards. The HRB conducts individual counseling sessions for aggrieved persons, and attempts to mediate a solution. Counselors, most of whom are volunteers, are placed nationwide, and cases counseled number more than 21,000 annually (Government of Japan 2012: 3). At least judging from the information published by the HRB, though, none of these cases involve official action – highlighted issues include domestic violence, child abuse, bullying in schools, workplace harassment, and ‘disputes among neighbors concerning noise’ (Houmusho 2017; Government of Japan 2012: 3). What little information the HRB has published (mainly in an English report in 2014) regarding its cases is indicative of the approach. One highlighted case involved a disabled person in a wheelchair who was refused entry into a beauty salon. HRB states that: having heard the explanations of both sides, [it] worked out resolutions that fit individual situations such as depending on the degree of disability of the victim and proposed to the salon that measures to avoid risks such as support from an attendant and rescheduling of the appointment time might be best. Since the salon showed an understanding of this proposal by the Bureau and the victim also accepted it, under this measure, the victim came to be able to go to the salon. (Ministry of Justice Human Rights Bureau 2014: 59) Another case was brought by a parent of a student who had suffered bullying at school. This parent was unhappy with the measures taken by the school, but, after the intervention of HRB,

Hate speech and false human rights 9 the parent showed understanding over the manner in which the school had handled the bullying and the school also decided to handle the case taking the parent’s requests into account. And as a result, trust was redeemed between both sides. (Ministry of Justice Human Rights Bureau 2014: 61) Perhaps the most serious case in the report is one of abuse in a care facility for disabled elderly persons. HRB ascertained that one staff member had indeed ‘committed abusive behavior against a partially paralyzed resident with dementia such as by hitting the resident’s face and raising the resident’s body by grabbing hold of that resident’s hair when changing the diapers’. Questions of criminal prosecution would seem to be raised by this conduct, but apparently HRB simply ‘instructed the worker of the facility to understand the seriousness of this abusive behavior and not to repeat similar behavior’ (Ministry of Justice Human Rights Bureau 2014: 60). HRB also provides services to foreign residents (though presumably only those with legal status), and the government’s 2017 report to CERD lists some examples of the Bureau’s work on cases of foreign tourists being refused accommodation at hotels, as well as foreign residents being refused rental accommodation. There is also one example of a video of a hate demonstration posted on the internet by a ‘rightist group’. BHR ‘recommended said rightist group representative to reconsider his/her acts and never to commit similar acts again’, and also requested the internet service provider to delete the videos. There is no information as to any subsequent developments in that case (Government of Japan 2017: 44). Nowhere is there any suggestion of the increasingly grave human rights situation in Japan: by and large, the cases are the result of simple misunderstandings, and have amicable conclusions. Human rights violations are therefore downplayed, reduced to insignificant squabbles between otherwise well meaning citizens. BHR promotional material is rife with statements that human rights can be ensured by people ‘being considerate for the feelings of others’ (Houmushou Jinken Yougokyoku 2017), with posters on trains calling on people to respect human rights by giving their seats to elderly people. Problematic in itself, this narrative plays out in particularly insidious ways in Japan, where social pressure to conform, and in particular to bend to the wish of powerful actors, can be intense. Put succinctly, the person claiming their rights – i.e., the victim – is all too often branded as a troublemaker, for destroying the harmony of the group. In 2015 HRB put a statement on its website that the ‘recent trend to only demand your own rights and not to be considerate to others … is the cause of a wide range of human rights violations’ (Houmushou Jinken Yougo-kyoku 2015). This language was later changed on the Bureau’s website, but, as noted in another chapter in this volume, the notion that claiming one’s rights is a selfish, ‘inconsiderate’ action is a familiar one in the material of right wing organisations, and, indeed, of the ruling LDP. One LDP publication argues that the human rights provisions of the current Constitution are overly ‘individualistic’, and that ‘just because you have fundamental human rights doesn’t mean you can do whatever you want … if everybody acted selfishly, society would

10 Saul J. Takahashi fall apart’ (Jiyuuminshu-tou 2015: 22). Indeed, one survey on human rights conducted in Ehime prefecture found that 84 percent of respondents agree with the statement that ‘nowadays more people lack endurance and are always claiming their rights’, and 68 percent agree that ‘there would be no human rights problems if everybody would be considerate’ (Ehime-shi 2016: 3).

Conclusion The Japanese government has been making efforts to counter the rise in racist hate speech in the country, but the efforts are lacking. National legislation adopted in 2016 has numerous deficiencies, and it is largely up to the efforts of local authorities to adopt local ordinances that may prove to be marginally more effective. In particular, the Kawasaki ordinance that would prohibit public space from being used for hate demonstrations would at least make a difference in ensuring that extremist demonstrations do not take place. Nevertheless, efforts are hampered by the obstinacy of the government in refusing to consider comprehensive anti-discrimination legislation, as recommended consistently by treaty bodies and other human rights organisations. Hate speech in Japan is a serious human rights issue, and increased efforts against it are warranted. At the same time, it must be stressed that it is the government that bears the responsibility for complying with Japan’s human rights obligations – not the citizenry, or any other private actor. The narrative promoted in Japan, that human rights are violated by other citizens, not the government, is dangerous, and arguably serves as an attempt to deflect attention from the deteriorating human rights situation in the country.

References Centre for Human Rights Education and Training: 2017, ‘Analytical Report of the Foreign Residents Survey Revised Edition’, Geneva. Committee on the Elimination of Racial Discrimination: 2001, ‘Concluding observations on the initial and second periodic report of Japan’, CERD/C/304/Add.114, 27 April 2001, Geneva. Committee on the Elimination of Racial Discrimination: 2013, ‘General Comment 35: on Combating Racist Hate Speech’, CERD/C/GC/35, 26 September 2014, Geneva. Committee on the Elimination of Racial Discrimination: 2014a, ‘Concluding observations on the seventh to ninth periodic reports of Japan’, CERD/C/JPN/CO/7–9, Geneva. Committee on the Elimination of Racial Discrimination: 2014b, ‘Committee on the Elimination of Racial Discrimination considers report of Japan’, 21 August 2014, Geneva. Ehime-shi [City of Ehime]: 2016, ‘Jinken ni tsuite no himeji-shi shimin ishiki chousa kekka houkoku-sho gaiyou-ban’ [Summary report on citizen survey on human rights]. Government of Japan: 2012, ‘Human Rights Committee: Sixth periodic report of States parties: Japan’, CCPR/C/JPN/6/, 9 October 2012, Geneva. Government of Japan: 2013, ‘Seventh to Ninth Combined Periodic Report by the Government of Japan under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination’, CERD/C/JPN/709, 10 July 2013, Geneva.

Hate speech and false human rights 11 Government of Japan: 2017, ‘Tenth and Eleventh Combined Periodic Report by the Government of Japan under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination’, CERD/C/JPN/10-11, 25 September 2017, Geneva. Higashikawa, Koji: 2018, ‘Japan’s hate speech laws: Translations of the Osaka City Ordinance and the National Act to curb hate Speech in Japan’, 19Asian-Pacific Law & Policy Journal1 at 1–22. Houmusho, Monbu Kagaku-sho [Ministry of Justice and Ministry of Science, Education, and Technology]: 2017, ‘Heisei 29nendo jinken kyouiku keihatsu hakuho’ [White paper on human rights education and promotion 2017], Tokyo. Houmushou [Ministry of Justice]: 2018, ‘Heisei 29nenmatsu genzai ni okeru zairyuu gaikokuninnzuu ni tsuite’ [Resident foreign nationals as of 31 December 2017], at www. moj.go.jp/nyuukokukanri/kouhou/nyuukokukanri04_00073.html (last viewed on 29 July 2018). Houmushou Jinken Yougo-kyoku [Ministry of Justice Human Rights Bureau]: 2015, ‘Heisei 27 nendo keihatsu mokuhyou juuten mokuhyou’ [Main objectives for 2015 promotional activities], Tokyo. Houmushou Jinken Yougo-kyoku [Ministry of Justice Human Rights Bureau]: 2017, ‘Heisei 29 nendo keihatsu mokuhyou juuten mokuhyou’ [Main objectives for 2017 promotional activities], Tokyo.Huffington Post: 2016, ‘Chiba dai-sei shuudan goukan: hyakuta naokishi, “hannin wa gaikokujin de ha naika” to tsui-t shite hamon. Tsuda daisuke-shi “kono hito no akaunto wo teishi subeki”’ [Gang rape by Chiba University students: Naoki Hyakuta causes controversy by tweeting “the perpetrators must be foreigners”, Daisuke Tsuda calls for Hyakuta’s account to be cancelled], 26 November 2017. Human Rights Committee [HRC]: 2014, ‘Concluding observations on the sixth periodic report of Japan’, CCPR/C/JPN/CO/6, 20 August 2014. Japan Times: 2017, ‘Meet the man who gets frisked by the Tokyo police five times a year’, 22 January 2017. Jinken Kyouiku Keihatsu Suishin Senta [Centre for Human Rights Education and Training]: 2017, ‘He-to supi-chi ni kansuru jittai chousa houkoku-sho’ [Survey on current situation of hate speech], Tokyo. Jiyuuminshu-tou [Liberal Democratic Party]: 2015, ‘Hono-bono katei no kenpou kaisei-tte na-ni?’ [The heartwarming family: what is revising the Constitution about?]. Kawasaki-shi [City of Kawasaki]: 2017, ‘Honpou-gai shusshinn-sha ni taisuru futou na sabetsuteki gendou no kaishou ni muleta torikumi no suishinn ni kansuru houritsu ni motoduku “ooyake no shissetsu” riyou kyoka ni kansuru gaidorainn’ [Draft guidelines on use of public facilities in accordance with Act against Illegitimate Discrimination against Foreign Nationals], November 2017. Kyoto Chiho Saiban-sho [Kyoto District Court]: 2013, Case Heisei 22 (wa) number 2655. Mainichi Shimbun: 2014, ‘Hiroshima dosha saigai: akin de gaikokujin banzai no jouhou nai, hiroshima kenkei’ [Hiroshima landslide: police say no cases of burglaries by foreigners], 26 August 2014. Ministry of Justice Human Rights Bureau: 2014, ‘Human Rights Protection: Activities of the Human Rights Organs of the Ministry of Justice’, March 2014, Tokyo. Moro’oka, Yasuko: 2013, ‘He-to supi-chu to ha nanika’ [What is Hate Speech?], Iwanami shinsho, Tokyo. Network for the Elimination of Racial Discrimination in Japan (ERD-Net): 2013, International Movement Against All Forms of Discrimination and Racism – Japan Committee

12 Saul J. Takahashi (IMADR-JC), ‘Report to the Human Rights Committee On the issue of hate speech against minorities in Japan’, Geneva. Nihon Bengoshi Rengo-kai [Japan Federation of Bar Associations]: 2016, ‘Honpou-gai shusshinn-sha ni taisuru futou na sabetsuteki gendou no kaishou ni muleta torikumi no suishinn ni kansuru houritsu-an” no ichibu shuusei wo motomeru kaichou seimei’ [JFBA president calls for revisions to Draft against Illegitimate Discrimination against Foreign Nationals]’, 10 May 2016. Osaka Koutou Saiban-sho [Osaka High Court]: 2014, Case Heisei 25 (ne) number 3235. Osaka-shi [City of Osaka]: 2017, ‘“Osaka-shi he-to sups-chi he no taisho ni kansuru jourei” no unnyou ni tsuite’ [Implementation of “Osaka Ordinance against Hate Speech”], www.city.osaka.lg.jp/shimin/page/0000339043.html (last viewed on 1 March 2018). Reuters: 2017, ‘Toukyou nyuukan shisetsu de yaku 40nin no hishuuyousha ga hansuto, chouki shuuyou nado ni rougi’ [Approximately 40 detainees hunger strike in Tokyo immigration detention centre: protests against long term detenion], 11 May 2017. Saiko Saiban-sho [Supreme Court]: 1978, Civil case Volume 32 Number 7 Page 1223. Saiko Saiban-sho [Supreme Court]: 1995, Criminal case Volume 49 Number 10 Page 842. Saiko Saiban-sho [Supreme Court]: 2005, Heisei 10 (gyou-tsu) case 93. Sankei Shimbun: 2018, ‘北朝鮮スリーパーセル　市民生活に浸透、北の指令で活性化　 「専門技術型」にも警戒’, 2 March 2018. Shin, Hebon: 2013, ‘Kokusai Jinken-hou: kokusai kijun no dainamizimu to kokunai-hou tono kyouchou’ [International human rights law: Dynamism of international standards and coordination with domestic law], Sinzansha, Tokyo. Tokyo Shimbun: 2017, ‘Nanmin “soutou” wo 4wari funintei: houshou, yuushikisha shinsa “sonchou” sezu’ [40 percent of refugees not recognised: Justice Minister lacks respect for expert committee], 11 June 2017. Yomiuri Shimbun: 2016, ‘Chousen gakkou hojo no jishuku yousei he: seifu, kita kakujikkenn uke’ [Gov’t asks local councils to refrain from giving subsidies to Korean schools after North Korean nuclear experiments], 26 March 2016. Yoshikawa, Kei: 2017, ‘Koike chiji, kanto daishinsai no chouseijin gisei-sha meguri jiron: “gyakusatsu no jijitsuu kara me wo somukeru mono” to hihan no koe’ [Criticism of Governor Koike’s views on Korean victims after Kanto quake: “turning away from massacres”], Huffington Post, 26 August 2017. Zaitoku-kai [Zainichi tokken wo yurusanai shimin no kai]: 2007, ‘7tsu no yakusoku’ [7 promises], 30 January 2007, at www.zaitokukai.info/modules/about/zai/promises.html (last viewed 7 March 2018).

2

Media in Japan The muzzled watchdog Saul J. Takahashi

Introduction A free and active media is invaluable for ensuring the public’s right to know, a component of the right to freedom of expression. Often called the fourth estate, a functioning media acts as a watchdog vis-à-vis the three branches of government, and is one of the fundamental pillars on which the house of democracy stands. As noted by the Human Rights Committee, ‘free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society’ (Human Rights Committee 2011: 3). Unfortunately for Japanese democracy, the media in the country has all too often been incapable of playing this role. It would of course be false to state that the Japanese media is never critical of the government, or of other powerful social actors: however, courageous and sporadic efforts by individual media outlets and journalists notwithstanding, overall the Japanese media operates within a legal and structural framework that prevents them from playing a strong watchdog role. The situation has worsened considerably over recent years, with the government actively attacking individual newspapers and even threatening to withdraw broadcasting licenses. The situation is reflected in the global free press rankings published by Reporters Without Borders (RWB), in which Japan is ranked a dismal 67th place (Reporters Without Borders 2018). The country’s ranking has exhibited a dramatic decline, from 11th place in 2010 (Reporters Without Borders 2010) – though 2018’s position is a marginal improvement from 2017, when Japan was in 72nd place. RWB noted in 2017 that: Media freedom in Japan has been declining ever since Shinzo Abe became Prime Minister … in 2012. … journalists have difficulty serving the public interest and fulfilling their role as democracy’s watchdogs. Many journalists, both local and foreign, are harassed by government officials, who do not hide their hostility towards the media. (Reporters Without Borders 2017)

14 Saul J. Takahashi Arguably even more problematic is the fact that the bulk of Japanese journalists do not seem to question the current situation, or the frameworks that are its roots. On the contrary, the kisha club system ensures that journalists actively self censor their peers, preventing independent, investigative journalism and encouraging the media to become passive recipients of information from those in power. Indeed, Japanese journalists go out of their way to crack down on those who do not play by ‘access journalism’ rules. ‘The nail that sticks out gets hammered down’ is a saying that all Japanese children learn at an early age, both verbally and through first hand experience. The Japanese media applies this saying vigorously.

Broadcasting law and ‘fairness’ Japanese broadcasters are subject to the provisions of the 1950 Broadcast Act, which states in Article 4 that broadcasts must be ‘politically fair’ and must ‘not distort the facts’. There is no similar legal framework for the print media, but most newspapers include the importance of ‘impartiality’ or ‘fairness’ in their mission statements or other corporate documents, and take every opportunity to stress their belief that it is a guiding principle of their work (see Yomiuri Shimbun 2000; Asahi Shimbun 1952). It should also be noted that nearly all Japanese broadcast media outlets are affiliated with particular newspapers – TV Asahi belongs to the same company group as Asahi Shimbun, Nihon TV belongs to the same company group as Yomiuri Shimbun, etc. The expectation of ‘fairness’ is, therefore, fundamental to both the broadcast and the mainstream print media. Seemingly innocuous though the ‘fairness’ requirement might be, the question naturally arises as to what exactly constitutes ‘fairness’, and, perhaps more importantly, who has the right to judge whether reporting is ‘fair’. The Human Rights Committee has stated that any such regulation should be conducted by a third party actor, independent from the government, on the basis only of conditions that are ‘reasonable and objective, clear, transparent, non- discriminatory and otherwise in compliance with’ freedom of expression. The Committee went on to state clearly that ‘The penalization of a media outlet, publishers or journalist solely for being critical of the government … can never be considered’ to be acceptable (Human Rights Committee 2011: 10, 11). In contradiction with these standards, the Japanese law states clearly in Article 174 that the government, specifically the Minister of Internal Affairs and Communications, ‘shall order the suspension of the operations of broadcasting’ if an outlet should fall fowl of the ‘fairness’ or other requirements. As noted by David Kaye, Special Rapporteur on Freedom of Expression, ‘In short, media regulation in Japan is not legally independent of government, in particular not from the political party in power at any given moment’ (Kaye 2017: 6). This was not the case when the law was first enacted, during the era of American military occupation. During the war, the Japanese media had degenerated into what is often referred to with derision as ‘dai honn-ei happyou’, or ‘Imperial HQ release’ – outlets acted as military mouthpieces, simply repeating the regime’s obviously false releases with no critical questioning. Though attempts have been

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made after the war to promote a narrative of brave journalists struggling during wartime under the jackboot of military censorship, several historians have questioned this version of events, showing that, far from being a passive actor, the media played a very active role in spreading militaristic and nationalistic ideas in the run up to World War 2, even before any firm system of pre-publication censorship existed (Eto 1994; Hayakawa 2016). In any case, it was hoped after the war that institutional independence would enable the press to perform a more assertive role, and it was with that aim that, under American occupation in 1950, an independent committee was created charged with regulating the press. However, as soon as the occupation ended in 1952, the government disbanded the independent committee, and retained for itself the prerogative to order the shutdown of any broadcaster it had decided had infringed on the provisions mentioned earlier (Videonews 2016). This power has never been used, but the threat remains, and it is not an empty one. On 20 November 2014, shortly after parliament had been dissolved, the governing Liberal Democratic Party (LDP) sent a letter to broadcast networks titled ‘Request to ensure fairness, impartiality, neutrality and fairness in reporting during the election’. Referring obliquely to an incident in 1993 where a senior manager at TV Asahi had instructed reporters to engage in reporting that would favour the opposition, the letter demanded ‘neutrality and fairness’ with regard to the number, speaking time, and selection of guest speakers, and the choice of street interviews that would be broadcasted (Kaye 2017; Jiyuu Minshu-tou 2014; Nishi Nihon Shimbun 2014). The letter was sent just days after Prime Minister Abe had nearly lost his composure on live TV. After being shown multiple interviews with people stating they had not benefited from the government’s economic programme, Abe screamed that the broadcaster (not TV Asahi) had intentionally chosen people with negative views (J-Cast 2014). Unsurprisingly, TV Asahi, affiliated with the left of centre newspaper Asahi Shimbun, has been a particular target. On 26 November, the LDP sent another letter to TV Asahi to complain about a particular news programme aired on 24 November. In what could only be described as a threat, the LDP cited the provisions of the Broadcast Act, and claimed that the programme’s argument that government economic policies had benefited mainly the rich of the country was not ‘fair’ (Asahi Shimbun 2015). Tellingly, this letter was not reported on by Asahi, or by any other outlet, for months. On 29 November 2014, TV Asahi abruptly cancelled the participation of two left of centre commentators in a popular political debate programme (Mainichi Shimbun 2014). In February 2015, Shigeaki Koga, a popular newscaster at TV Asahi, was forced to resign after having made mildly critical comments of Abe on the air. On his last show, on 27 March, Koga criticised vehemently both senior management of the network and the government (Huffington Post 2015c). Almost immediately, TV Asahi was summoned for a ‘hearing’ by the LDP, on the basis that ‘distortions of truth had taken place’. TV Asahi meekly complied, and received a thorough dressing down (Tokyo Shimbun 2015). It was only after these events that the 26 November 2014 letter from the LDP came to light, and only through the

16 Saul J. Takahashi reporting of a tabloid (Nikkan Gendai 2015). Several other prominent newscasters critical of the government (in TV Asahi and other stations) have been dismissed in circumstances that strongly suggest their employers had acted under government pressure (Reporters Without Borders 2016). It is important to note that these brazen steps were taken within the context of continuous bombardment by Abe and other senior politicians of Asahi Shimbun’s reporting, over the ‘comfort women’ and other issues. As noted in Chapter 12 of this volume, both senior politicians and right wing figures were leading a nationwide campaign against the newspaper for, in the words of Abe himself, ‘[causing] great damage to Japan’s image … [and] unjust international slander’ (Asahi Shimbun 2014). The campaign continues to this day: in February 2018, called Asahi ‘pathetic’ on his Facebook page, and criticised them in parliament for ‘never apologising’ for allegedly biased reporting (Sankei Shimbun 2018). In February 2016, the Minister of Internal Affairs stated in parliament that, if a broadcaster were to present only one side of the debate regarding a ‘political issue that polarized public opinion’, that broadcast would not be considered fair, and the Minister might order a halt to their operations. Though not stated, this appeared to be a reference to media coverage of a series of extremely controversial bills that the government had rammed through parliament (including one in the summer of 2015 allowing the dispatch of military forces abroad), as well as other bills the government were preparing at the time. Problematic already in principle, the Minister’s statement also caused concern because of the assertion that action could be taken by the government on the basis of one sole broadcast. This contradicted the government position up until then that the government would only act if the totality of a broadcaster’s programming was clearly ‘unfair’ (Nihon Bengoshi Rengo-kai 2016). During the visit of the Special Rapporteur on Freedom of Expression in April 2016, the Minister’s staff stressed that this statement was in a general sense – nevertheless, the chilling effect on the media is obvious (Kaye 2017: 7). Nor has it gone unnoticed that, while broadcasters critical of the government can face heavy criticism or even dismissal, no such concern has ever been expressed for outlets that blatantly tow the government line. Most prominent is the example of NHK, the national public broadcaster (with both television and radio stations). Though NHK has generally tended to steer clear of sensitive issues, its considerable resources have, at times, allowed it to provide detailed reporting out of the reach of private networks, and it commands a level of respect within the country. Several political appointments by the Abe government, in particular Katsuto Momii as Director General, were a watershed for NHK. Aptly described by Nakano as a ‘revisionist buffoon’ (Nakano 2017: 38), Momii had never worked in the media industry, and had no discernible qualifications other than being a personal friend of Abe. At his first press conference in January 2014, Momii suggested that NHK had to abide by the government position in its reporting, stating ‘[NHK] will put forward the Japanese position to the rest of the world, that’s what we’re for. If the government says to go right, we can’t go left.’ Momii also shrugged off criticism that NHK’s reporting on the debate regarding a controversial state secrets bill had

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been inadequate, stuttering that the bill had been adopted so he ‘[saw] little point in making a fuss’ (Weemo 2014). Under Momii, NHK faced widespread criticism after refraining from airing boos and hisses Abe received at public events (Huffington Post 2015b), not airing parliamentary debates on extremely contentious bills allowing the Japanese military to be sent abroad (Huffington Post 2015a), and other issues. Abe had already appointed Naoki Hyakuta, a controversial novelist well known for his nationalistic and racist views, to the Board of NHK in 2013. In similar fashion, Abe and his peers have been relentless in attacking Asahi for what they call biased reporting. At the same time, they have blatantly favoured right of centre outlets such as Yomiuri Shimbun and Sankei Shimbun, both of which have become unabashed (some would say shameless) advocates of Abe and his conservative causes. Yomiuri has even received free advertising from Abe, who, in response to a question in parliament on his intentions regarding Constitutional reform, stated that he had detailed his plans in a recent interview with Yomiuri and said simply that the opposition members should read that (Buzzfeed 2017). The government has also attempted to pressure foreign media outlets – for example, the former Tokyo bureau chief of The New York Times states that, upon his appointment in 2009, the government demanded that he repudiate in writing the critical coverage of the previous bureau chief. After he refused to do so, The New York Times was unable to interview the PM, unlike other major American newspapers (Fackler 2016: 32). In 2015, it was reported that the Frankfurter Algemeiner Zeitung was subject to pressure by the government in both Tokyo and Frankfurt, where foreign ministry diplomats allegedly visited the newspaper’s offices and accused journalists of being bribed by the Chinese government (Yukan Fuji 2015). In March 2018, it came to light that Abe intended to push for the relevant provision of the Broadcasting Act to be scrapped, doing away altogether with the ‘fairness’ requirement. Under these plans, broadcast media would be treated similarly to programming on the internet, meaning there would be no regulation of content, and programmers would be free to take any political stance they wished. These plans came under near universal condemnation, with commentators pointing to the numerous right wing ‘fake news’ type outlets on the internet that acted essentially as cheerleaders for Abe and his government. It was feared that Abe was aiming for media broadcasters to degenerate into lookalikes of such outlets – Japanese Fox News. Faced with unusual opposition even from cabinet ministers, Abe was forced to retreat, and the plans were abandoned (Tokyo Shimbun 2018). It is noteworthy, therefore, that even the media is protective of the ‘fairness’ restriction, despite the vulnerable position it puts them in vis-à-vis the government. March 2018 was arguably an opportune time to raise the deficiencies of the Broadcast Act, in particular the constraints the law puts on the free working of the media. Nevertheless, the media did not raise these issues, and there was no public debate on them at the time. This is not altogether surprising, given the generally privileged position the media holds with regard to access to information, as shall be shown later in this chapter.

18 Saul J. Takahashi

Specially Designated Secrets Act In late December 2013, the Abe government rammed through parliament the Specially Designated Secrets Bill (now Act), a law stipulating government prerogatives to designate particular information as national secrets. There was widespread public opposition to the Bill, and it had been criticised vehemently by national and international human rights NGOs, UN Special Procedures Mandate Holders, and the UN High Commissioner for Human Rights herself, all of whom expressed concern regarding the sweeping powers afforded to government ministries to decide what information would be secret, the lack of public oversight, and the stiff penalties for persons who revealed secret information. As noted in Chapter 12 of this volume, the government’s reaction to international criticism was severe, and resulted in a cutting off of voluntary funds to the office of the High Commissioner the next year. The SDS Act gives ministries nearly unfettered powers to designate information as official state secrets, for up to 60 years. An appendix to the Act outlines the categories of which information can be designated, but the categories are extremely broad, and in effect information with any sort of connection to defence, diplomacy, or counter terrorism could be designated as secret. Public oversight is wholly inadequate. After widespread outcry against the Bill, the government was forced to create committees in both houses of parliament responsible for overseeing implementation of the law. However, committee decisions have no binding effect on the government, and in any case they receive only vague outlines of information the government had classified as secret, making it as a practical matter impossible to review government decisions in any meaningful manner (Tokyo Shimbun 2017a). The upper house committee has never bothered to make recommendations to the government, on the basis that there is insufficient information to do even that (Tokyo Shimbun 2017b). Equally problematic is the fact that a loophole in legislation governing the retention of public records might enable the government to discard secret documents even before their secrecy classification expires, meaning the information would never come to light (Tokyo Shimbun 2017c). Perhaps most concerning is the fact that the SDS Act stipulates for stiff penalties not only for government officials, but also for journalists or normal citizens who reveal secret information. Besides stating in Article 23(1) that persons ‘engaged in the duty of handling’ state secrets – mainly civil servants and government contractors – are liable for up to ten years imprisonment, Article 25 goes on to stipulate that any one ‘who conspires with, induces or incites another person’ to reveal a state secret is liable for up to five years in prison. The law goes on to stipulate that ‘attempts will be punished’, and even that the disclosure of state secrets through negligence can be imprisoned. Considerable public concern, both domestically and internationally, was raised regarding the chilling effects these provisions would have on journalism in Japan. The Human Rights Committee expressed concern in 2014 that the Act ‘could generate a chilling effect on the activities of journalists and human rights

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defenders’ (Human Rights Committee 2014). Reporters Without Borders called the SDS an ‘unprecedented threat to freedom of information’, stating that it effectively ‘makes investigative journalism illegal’ (Reporters Without Borders 2013). After much criticism, the government eventually included an article stating that interpretation of the Act ‘must not be expanded to unfairly violate the fundamental human rights of the citizens, and due consideration must be paid to the freedom of news reporting or news coverage, which contributes to guaranteeing the citizens’ right to know’ (Article 22). This somewhat equivocal language referring to ‘unfair violations’ and ‘due consideration’ is hardly reassuring, and it is also noteworthy that the original Japanese text is arguably formulated even more narrowly than the official English translation in terms of rights protection. Article 22 also states in even more vague terms that: news coverage by persons engaged in publishing or news reporting shall be treated as … lawful … as long as it has the sole aim of furthering the public interest and is not found to have been done in violation of laws or regulations or through the use of extremely unjustifiable means. Just how one is to judge whether particular reporting is aimed ‘solely’ and ‘furthering the public interest’ is of course open to question, as is what would constitute ‘extremely unjustifiable means’. Despite being vague and problematic, there was a considerable downgrading of criticism of the SDS Act by the media after the new provisions were introduced. However, though the provisions may have placated the media, they do little to alleviate the damage the law has on the public right to know. While journalists apparently have been awarded a privileged status in these provisions (which may be why there is far less criticism in the media), there is no protection for whistleblowers, i.e. those who provide journalists with information in the first place. This in effect makes almost impossible the exposure of anything the government deems problematic – though, as shall be seen, most Japanese journalists do not engage in investing journalism in any case. There are as of yet no known cases of any prosecution in accordance with the SDS Act, but the potential chilling effect is obvious.

Kisha club and the information cartel The previously mentioned legislation and government actions have had serious negative implications for the independence of the media and the public’s right to know. However, one of the main obstacles to the Japanese media performing an aggressive watchdog role comes not from the government, but from the media itself, through the infamous kisha club system. The kisha club creates what Laurie Anne Freeman calls the ‘information cartel’ (Freeman 2011), an overly cozy framework of ‘access journalism’ controlled by the government. Even worse, the kisha club demands conformity from media outlets, requiring that journalists compete to outdo each other in subservience. As noted by Arthur Stockwin, the Special Designated Secrets Act does not create, but rather ‘reinforces an already

20 Saul J. Takahashi existing atmosphere of conformity within large segments of the media that tends to stifle investigative journalism’ (Stockwin 2017: 115). Though sometimes translated as ‘press club’ (‘kisha’ meaning ‘journalist’), the kisha club is a unique institution that bears no resemblance to the professional organisations in other countries. Kisha clubs are associations of journalists that are assigned to a specific ‘beat’: for example, each government ministry has a kisha club, as does each house of parliament, courts, major police stations, prefectural offices, and so on. Private companies generally do not have kisha clubs, though there are exceptions: notably Tokyo Electric Power Company (TEPCO), a publicly owned company, still retains a kisha club. Ministries and other organisations provide the kisha club with office space and other facilities, and some even pay utility costs and provide secretarial services (Asano 2011: 43–44). Kisha clubs are long standing institutions, and when a journalist of a particular newspaper is transferred to another position, for example, his successor will take his place in the kisha club, ensuring continuity. There is no comprehensive data on how many kisha clubs there are, though some estimate there might be as many as a thousand nationwide (Freeman 2011: 124). Kisha clubs serve as access points to official information. When a ministry holds a press conference, for example, it is held at the kisha club. The club serves as the setting for other, more informal forms of information gathering as well – ministers regularly invite members to ‘off the record’ chats, and the club often holds gatherings out of office hours where business cards are exchanged and contacts can be made. Nevertheless, while the Japanese Newspaper Publishers and Editors Association boasts that the kisha club system ‘has been developed by the Japanese press over more than a century with the aim towards ensuring freedom of speech and the press’, this ignores the exclusive nature of the institution. Membership of the kisha clubs are as a rule only open to mainstream media outlets – i.e. Japanese newspapers and broadcast media – meaning that independent journalists are automatically ‘out of the loop’ (Asano 2011: 43). Independent journalists do not receive invitations to press conferences or other sessions, are not allowed to enter the premises even if they do hear about events, and do not receive press releases or any other material. Foreign media (including Japanese journalists working for foreign outlets) are also excluded from membership, equally hampering their access to information. In recent years, some kisha clubs have experimented with admitting selected foreign outlets to press conferences, but these have often come with clearly unacceptable restrictions, e.g. the foreign correspondent is not allowed to ask any questions (Asano 2011: 55). There is one single kisha club in Tokyo dedicated to foreign correspondents, but government officials can – and often do – simply ignore its invitations, presumably to avoid the tougher questioning they often receive (Tokyo Sports 2015). There is no such facility for independent journalists, who are left completely to their own devices. It is important to note that all kisha clubs are self regulating – it is the member journalists (and the media outlets they work for) who dictate this exclusivity, not the government or any official body.

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Even worse, the exclusive nature of the kisha club’s access to information means that the government can manipulate journalists with ease. ‘Access journalism’ always comes with a price, and in any country the journalist who breaks an embargo or cites an ‘off the record’ source can face a boycott from his sources. With the kisha club, however, angered government officials can (and do) refuse to speak with anybody from the club until and unless the rule breaker is punished, at the most extreme with expulsion. The enforcement function is thereby conveniently offloaded from the government to the other journalists in the club. Since exclusion from the kisha club is in essence a death sentence for a mainstream media outlet, there is an extremely strong incentive to follow the rules. There is a paucity of information regarding the inner workings of kisha clubs. However, even a cursory examination of the docile nature of the Japanese press provides a strong indication of how effective the system is in ensuring that coverage is uniform, is based almost word for word on official statements, and is essentially a sanitised version of events. Freeman, a scholar who obtained unusual access to kisha clubs in the early 1990s, provides an extremely rare glimpse into an instance of where a kisha club punished a member. In 1990, just over a week before an important visit by the Korean President, the Japanese press reported that a ‘senior LDP official’ had made comments to the effect that any demands that Japan apologise further for abuses against Korea during the colonial era were unreasonable – a clear diplomatic gaffe. ‘Senior LDP official’ is code for only three officials – the Prime Minister, the Cabinet Secretary, and the LDP Secretary General – but, despite the fact they presumably knew which one of the three had made the comments, none of the Japanese press identified the speaker. However, the Korean press almost immediately reported that it had been Secretary General Ozawa, and Ozawa subsequently went to the Korean embassy to make a formal apology. Even then, the Japanese media was vague as to whether it had been Ozawa who had made the comments. The exception was Asahi Shimbun, which reported on page one of the evening edition that it had been Ozawa who had made the offending remarks. The next day, the newspaper returned to citing only ‘senior LDP official’, and since then the newspaper steadfastly refrained from naming Ozawa. Freeman states that, immediately after the fateful publication of Ozawa’s name on 16 May, the kisha club demanded an explanation from the member journalist who had written the article. After giving him a personal dressing down, they informed Asahi management that the newspaper was on ‘probation’, with the possibility of barring them from coverage of parliament in the case of any future infractions. They also demanded that the journalist write a formal apology to Ozawa, and that a senior manager of the newspaper apologise to Ozawa in person on behalf of the paper. Freeman states that Asahi complied with all of these demands, and that, in addition, the offending journalist was soon after transferred to another assignment (Freeman 2011: 13, 205). It is of course hardly clear how the kisha club could ban Asahi from covering parliament, but the fact that the other journalists in the kisha club felt emboldened to make such a threat, and that Asahi complied, is indicative of the power that the club wields, and the manner in which that power is exerted.

22 Saul J. Takahashi It also gives an insight into the extremely insular world of Japanese journalism (and politics). As noted earlier, the fact that Ozawa had made the comments had already been widely reported in the Korean media – there was simply nothing left to hide anymore. And yet, the Japanese media stuck to its euphemisms, seemingly thinking that ignoring the unpleasantness would make it go away. Though Freeman’s example is a bit dated, the fact is that even in the days of the internet, little has changed, and political reporting in the country remains replete with ‘wink wink’ codes that only those ‘in the know’ can comprehend. Most of the citizenry is of course fully aware of the situation, as is evidenced by the fact that, for example, people desperate for accurate information during the Fukushima nuclear disaster abandoned the Japanese media in droves and relied mainly on foreign sources. As noted earlier, TEPCO (the operator of the Fukushima nuclear power plant) is one of the few private companies that has a kisha club, with all the attendant ability to restrict any information they might find inconvenient. A recent prominent example of the peer pressure resorted to by the kisha club is that of Isoko Mochizuki, a reporter for the left of centre newspaper Tokyo Shimbun. Mochizuki made a name for herself investigating the controversial issue of Japanese weapons exports, and the possibility of such exports being used in violations of humanitarian law. Assigned to the Prime Minister’s office in June 2016, she adopted an assertive stance at the daily press briefings by the Cabinet Secretary, tenaciously demanding substantive responses, as opposed to the usual evasive answers. Horrified, the kisha club conveyed strong concerns to Tokyo Shimbun management (Nikkan Gendai 2016). In September 2017, the government sent a letter of protest to Tokyo Shimbun, stating that ‘it was unacceptable that questions have been asked based on unconfirmed information and conjecture, causing misunderstandings amongst the public’. Though addressed to Tokyo Shimbun specifically, the letter was distributed to all members of the kisha club (Asahi Shimbun 2017; J-Cast 2017). Still, Mochizuki has remained in her position, and numerous heated exchanges between her and Suga have been televised. The right wing media has had a hey day: as of 24 November 2017, Sankei Shimbun alone had published at least 30 articles criticising Mochizuki, naming her in some 22 (Dai 2018). Though somewhat out of the scope of this chapter, any mention of the ongoing Mochizuki affair would be incomplete without noting that Mochizuki is a younger woman, in a generally male dominated environment. Viewing the televised exchanges, it is difficult to imagine Suga would be speaking in the same condescending tone had he been addressing a man, even a younger man. Though the kisha club serves as a convenient forum to control reporting, it is hardly the only method that the government and other powerful actors have used. Executives of mainstream media outlets have received considerable criticism for frequent dinners at high end restaurants with the Prime Minister and other politicians (Akahata 2017). In addition, over the years, TEPCO and many other electricity companies have taken reporters on countless all expenses paid for ‘study trips’ to nuclear facilities, wining and dining them in an obvious – and very effective – attempt to obtain positive coverage of nuclear power (Hayakawa 2014). And in 2010, Hiromu Nonaka, who was Cabinet Secretary from 1998 to 1999,

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stated that he had for years used official funds to pay journalists for favourable coverage, sometimes to the tune of hundreds of thousands of dollars per month. Nonaka’s statements were touched upon only briefly in the mainstream media, essentially buried in the back papers (Asahi 2010). Within this landscape, one media that retains importance in Japan is the tabloid magazine (in particular weekly tabloids, known as shuukanshi). There is a wide variety of weekly tabloids, ranging from relatively high brow publications affiliated with newspapers (e.g. Shuukan Asahi and Sunday Mainichi) to muckrakers featuring photos of scantily clad women (e.g. Shuukan Post and Shuukan Gendai) – the weekly tabloid that one reads is an indication of political leaning as well as level of education. Some are notably right of centre (e.g. Shuukan Bunshun and Shuukan Shinchou). What is common to the weekly tabloids (and to all magazines) is that they do not participate in kisha clubs, and do all their reporting outside of the system. Free of the constraints of the kisha club, weekly tabloids engage in much more aggressive investigative journalism. It is the normal course of events in Japan that a scandal is first reported on in one or more of these publications, and only after it has become too big to credibly ignore that it finally appears in the mainstream media. It is widely believed (though has never been confirmed) that much of the reporting for weekly tabloids is in fact done by journalists for mainstream newspapers, using pseudonyms to write the articles they are prevented from writing in their normal positions. Most Japanese will agree that weekly tabloids are the best source of information as to what is happening ‘behind the scenes’ – as Takeo Doi might say, a peer into the world of the honne, as opposed to the tatemae, the world of the facade that is presented by the mainstream media (Doi 1973). The problem, of course, is that there is no accountability. Though there is some serious reportage, the weekly tabloids are also full of unsubstantiated rumours, innuendo, and gossip, and there is no way for the reader to discern fact from fiction. Political debates in Japanese cafes and bars regularly centre on which rumour seems to be well founded, who the source and the hidden intentions might be, and other perceived conspiracies. A democracy cannot function effectively on whispers in the shadows – there must be open access to information and transparent institutions. As with the kisha clubs, the current arrangement may suit the insiders – the reporting is deniable on all sides – but it cannot be a substitute for a functioning fourth estate.

Conclusion As is often attributed to George Orwell, journalism is printing what someone else does not want printed: everything else is public relations. The most important role of the media is to monitor the government and other powerful social actors, and to bring to the public’s attention any potential abuse of power. Unfortunately for the Japanese public, the media in the country has largely failed in performing this role. Legislation (in particular in the case of broadcasters) and government pressure, in blatant violation of international standards, has played an important role in

24 Saul J. Takahashi taming the media – however, as noted by Kaye, a unified media could combat this effectively, by banding together and rejecting government pressure (Kaye 2017: 9–10). In Japan, though, the media itself bears more than its share of blame for the situation. Through preserving the exclusive kisha club system and being compliant in other blatant forms of ‘access journalism’, the bulk of the media has been a willing participant in the information cartel, hampering the public’s right to know. In 2012, to much fanfare, Asahi Shimbun opened a new investigative journalism department, stating boldly the department would bring a new era to Japanese journalism by being a ‘watchdog, not a lapdog’. Alas, it was not meant to be – soon after the campaign against Asahi on the ‘comfort women’ issue, the department was for all practical purposes shut down (Fackler 2016: 73–74). One wonders what Orwell would say about the current situation in Japan.

References Akahata: 2017, ‘Kenryoku no kanshi dekiru no ka: abe shushou to media kanbu no kaishoku’ [Can they hold power to account? Dinners between PM Abe and high ranking media officials], 31 December 2017. Asahi Shimbun: 1952, ‘Kisha kaiken no shitsumon meguri, kantei ga toukyou shimbun ni kougi’ [PM Office complains to Tokyo Shimbun about questioning in press conference], 8 September 1952, Asahi Shimbun Kouryou [General Principles]. Asahi Shimbun: 2010, ‘Kisha kaiken no shitsumon meguri, kantei ga toukyou shimbun ni kougi’ [PM Office complains to Tokyo Shimbun about questioning in press conference], 8 September 2010, ‘Nonaka Hiromu-shi, “kanbou kimitsu-hi, maituski 5senman kara 7senman tukatta”’ [Hiromu Nonaka: I used 50 to 70 million yen a month of secret funds], 30 April 2010. Asahi Shimbun: 2014, ‘Kisha kaiken no shitsumon meguri, kantei ga toukyou shimbun ni kougi’ [PM Office complains to Tokyo Shimbun about questioning in press conference], 8 September 2014,‘“Saishuu-tou de renkou” shougen: ura-deuke erarezu kyogi to handan’ [Abduction at Jeju testimony: no evidence, was falsification], 5 August 2014, Tokyo. Asahi Shimbun: 2015, ‘Kisha kaiken no shitsumon meguri, kantei ga toukyou shimbun ni kougi’ [PM Office complains to Tokyo Shimbun about questioning in press conference], 8 September 2015, ‘Jimin, kobetsu bangumi ni irei no “chuuritsu” yousei: senmonka kara hihan mo’ [LDP shocks with demands for “neutrality” in individual programmes: some experts are critical], 11 April 2015. Asahi Shimbun: 2017, ‘Kisha kaiken no shitsumon meguri, kantei ga toukyou shimbun ni kougi’ [PM Office complains to Tokyo Shimbun about questioning in press conference], 8 September 2017. Asano, Ken-ichi: 2011, Kisha kurabu kaitai shinsho [Doing Away with the Kisha Clubs], Gendai Jinbunsha, Tokyo. Buzzfeed: 2017, ‘Abe shushou, kenpou kaisei no kangae toware “yomiuri shimbun wo zehi jukudoku shite” to touben, yatou kara hihan’ [PM Abe questioned about views on constitutional reform: “just read yomiuri”, opposition in uproar], 8 May 2017. Dai, Hiroshi: 2018, ‘Kisha wo tataku shinbun-tte nani? Sankei no mochizuki isokoshi (toukyou shimbun) he no iyou na shuuchaku’ [What is a newspaper that bashes journalists? Sankei’s obsession with Isoko Mochizuki of Tokyo Shimbun], Housou Repo-to no. 270.

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Doi, Takeo: 1973, The Anatomy of Dependence: Exploring an area of the Japanese psyche: feelings of indulgence, Kodansha International. Eto, Jun: 1994, Tozasareta Gengo Kuukan: Senryogun no ken-etsu to sengo nihon [The Closed Space for Speech: Censorship by the Occupation Forces and Post War Japan], Bunshun Bunko, Tokyo. Fackler, Martin: 2016, Abe seiken ni hirefusu nihon no media [Bowing to Abe: the Japanese Media], Futaba-sha, Tokyo. Freeman, Laurie Anne (Yoshiyuki Hashiba trans.): 2011, Kisha Kurabu: Jouhou Karuteru [Press Club: the Information Cartel], Ryokufuu Shuppan, Tokyo. Hayakawa, Tadanori: 2014, Genpatsu yu-topia nihon [Nuclear Utopia Japan], Gouda Shuppan, Tokyo. Hayakawa, Tadanori: 2016, ‘Nippon sugoi’ no deisutopia: Senjika jigajisan no keifu [The ‘Japan is Great’ Dystopia: Self Praise during the War], Seikyuusha, Tokyo. Huffington Post: 2015a, ‘Anpo hou-an, NHK ga kokkai chuukei sezu, Ototake Hirotadasan, “koukyou housou to ieru?”’ [No parliament coverage during debate on war bills: Hirotada Ototake: “can this really be called public broadcasting?”], 15 July 2015. Huffington Post: 2015b, ‘“NHK yo, naze abe shushou he no kaere ko-ru wo kakusunda”: kaigai media no kasha ga gimon-shi “Okinawa irei no hi”’ [Foreign correspondents: NHK, why do you hide jeering of Abe at Okinawa?], 24 June 2015. Huffington Post: 2015c, ‘Furutachi Ichiro-shi, bangkumi kouban suru Koga Shigeaki-shi to kouron, houdou sute-shon (zenbun)’ [Ichiro Furutachi, debate with Shigeaki Koga after resignation: Houdou Station full transcript], 27 March 2015. Human Rights Committee: 2011, ‘General Comment no. 34: Article 19: Freedoms of opinion and expression’, CCPR/C/GC/34, 12 September 2011. Human Rights Committee: 2014, ‘Concluding observations on the sixth periodic report of Japan’, CCPR/C/JPN/CO/6, 20 August 2014. J-Cast: 2014, ‘Suga choukan kaiken de meibutsu kisha ga shazai: kantei to toukyou shimbun no saya ate’ [Famed reporter apologises at Suga press conference: war between gov’t and Tokyo Shimbun], 15 September ‘Abe shushou, TBS “machi no koe” ni igi, “ito-tekina henshuu” honomekasu’ [PM Abe complains about TBS interviews, says intentionally edited], 19 November 2014. J-Cast: 2017, ‘Suga choukan kaiken de meibutsu kisha ga shazai: kantei to toukyou shimbun no saya ate’ [Famed reporter apologises at Suga press conference: war between gov’t and Tokyo Shimbun], 15 September 2017. Jiyuu Minshu-tou [Liberal Democractic Party]: 2014, ‘Senkyo kikan ni okeru houdou no kouhei chuuritsu narabi ni kosei no kakuho ni tsuite no onegai’ [Request for ensuring neutrality and fairness in reporting during election], 20 November 2014. Kaye, David: 2017, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression on his Mission to Japan’, United Nations Human Rights Council A/HRC/35/22/Add.1, 29 May 2017. Kraus, Ellis: 2017, ‘NHK: The Changing and Unchanged Politics of Semi-Independence’, in Kingston, Jeff ed.: 2017, Press Freedom in Contemporary Japan, Routledge, Abingdon.Mainichi Shimbun: 2014, ‘Tere-asa “asa nama” de hyouron-ka no Ogiue Chiki-shi shutsuen chuushi’ [TV Asahi, Chiki Ogiue appearance cancelled], 29 November 2014. Nakano, Koichi: 2017, ‘The Right Wing Media and the Rise of Illiberal Politics in Japan’, in Kingston, Jeff ed.: 2017, Press Freedom in Contemporary Japan, Routledge, Abingdon. Nihon Bengoshi Rengo-kai [Japan Federation of Bar Associations]: 2016, ‘Housou-hou no “seijiteki kouheisei” ni kansuru seifu kenkai no tekkai to houdou no jiyuu no hoshou wo

26 Saul J. Takahashi motomeru ikensho’ [Government should revoke views on Broadcasting Act and ensure freedom of press], Tokyo. Nikkan Gendai: 2015, ‘Kisha kurabu ga kanbou choukan ni sontaku no guu [Idiocy: kisha clubs avoid tough questions with Cabinet Secretary]’, 14 June ‘Abe jimin-tou, ‘hou sute’ ni atsuryoku bunsho [Abe LDP sends letter to pressure Houdou Station]’, 9 April 2015. Nikkan Gendai: 2016, ‘Kisha kurabu ga kanbou choukan ni sontaku no guu’ [Idiocy: kisha clubs avoid tough questions with Cabinet Secretary], 14 June 2016, cited in http://健 康法.jp/archives/31029 (last viewed 8 February 2018). Nishi Nihon Shimbun: 2014, ‘Jimin, senkyo houdou ni chuumon: terebi kakkyoku ni irei no bunsho’ [LDP complains about reporting during elections: outrageous letter sent to TV stations], 28 November 2014.Reporters Without Borders: 2010, ‘World Press Freedom Index 2010’, https://rsf.org/en/world-press-freedom-index-2010 (last viewed on 10 February 2018). Reporters Without Borders: 2013, ‘Prime Minister Shinzo Abe urged to abandon state secrecy bill’, 27 November 2013. Reporters Without Borders: 2016, ‘RSF concerned about declining media freedom in Japan’, 11 April 2016. Reporters Without Borders: 2017, ‘Japan’, https://rsf.org/en/japan (last viewed on 10 February 2018). Reporters Without Borders: 2018, ‘World Press Freedom Index 2018’, https://rsf.org/ en/ranking_table (last viewed on 29 July 2018). Sankei Shimbun: 2018, ‘Abe Shinzo shushou, Asahi Shimbun no “gohou” rekkyo shi hihan’ [PM Abe reads off list of reporting mistakes by Asahi Shimbun], 13 February 2018. Stockwin, Arthur: 2017, ‘Japan’s designated Secrets Law’, in Kingston, Jeff ed.: 2017, Press Freedom in Contemporary Japan, Routledge, Abingdon. Tokyo Shimbun: 2015, ‘NHK, Tere Asa, kougi naku ukeire’ [NHK, TV Asahi, accepts complaints with no objection], 18 April 2015. Tokyo Shimbun: 2017a, ‘Tokutei himitsu hogo-hou: tokutei himitsu 4ken, “datou ka chousa hitsuyou”, shuu-in jouhou kanshi-shin, 4shouchou ni teiji youkyuu’ [SDS Act: Lower House committee demands more information from 4 ministries on 4 secrets], 9 December 2017. Tokyo Shimbun: 2017b, ‘Tokutei himitsu hogo-hou: tokutei himitsu, kankoku koushi sezu: san-in shinsakai no nenji houkokusho’ [SDS Act: Upper House annual report, no recommendations], 8 June 2017. Tokyo Shimbun: 2017c, ‘Tokutei himitsu hogo-hou: tokutei himitsu, seifu “shi–i-teki unnyou nai”: shiteikikanchuu haki seido minaoshi kyohi’ [SDS Act: gov’t refuses to reform document discarding policy, says “no arbitrariness”], 12 April 2017. Tokyo Shimbun: 2018, ‘Housou “seijiteki kouhei” wo tekihai, seifu no seido kaikaku-an: touhashoku no tsuyoi kyoku, kanou ni’ [Gov’t broadcasting draft reform: remove political fairness requirement, enable partisan newscasters], 15 March 2018. Tokyo Sports: 2015, ‘Abe shushou, “gaikoku toku-ha’in kyoukaide kaiken nashi”, kantei ga ofa- wo kotowaru riyuu’ [PM Abe, no press conferences at foreign kisha club: why the cabinet office always says no], 11 July 2015. Videonews: 2016, ‘Nihon de ha seiji-ka ni housou no seijiteki kouheisei wo handan saseru no ka’ [Should Japan allow politicians to decide whether broadcasts are politically fair?], 13 February 2016.

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Weemo: 2014, ‘NHK kaichou kasha kaiken 2014nen 1 gatsu 25nichi’ [NHK Director press conference 25 January 2014], 25 January 2014. Yomiuri Shimbun: 2000, ‘Yomiuri Shimbun shinjou’ [Yomiuri Shimbun Principles]. Yukan Fuji: 2015, ‘Asahi Shimbun kenkyuu: ianfu mondai “kyohi jouhou” no rufu: juudai na sekinin to “tousaku”’ [Asahi Shimbun: heavy responsibility for spreading false information on comfort women issue], 1 July 2015.

3

Criminal Justice reform of 2016 A solution to the infamous problems in Japanese criminal procedure? Kana Sasakura

On its face, criminal justice in Japan seems to work quite well. As is often pointed out, Japan is a relatively safe country compared to other developed countries, and has high clearance rates, meaning that a high proportion of crimes are solved. Thanks to the diligence of the police and prosecutors, any crime is investigated thoroughly, resulting in an astounding conviction rate of more than 99 percent – or so this dominant narrative goes. However, the Japanese criminal justice has endured much criticism both domestically and internationally. A distinguished Japanese academic, Ryu-ichi Hirano, stated in a well-known critique written originally in 1985 that even though the manner in which Code of Criminal Procedure (CCP) is interpreted and applied appeared stable, ‘more deep-seated problems remain unresolved.’ He pointed out that various cases of retrial1 pointed to the troubled state of criminal procedure, and stated that ‘the real substance of criminal procedure in Japan lies in the investigative process. Moreover, this investigative process is an inquisitorial process performed by the prosecutors and police. Therein lies the truly distinctive character of Japanese criminal procedure’ and trials were ceremonies for ratifying prosecutors’ decisions. This means that it is the prosecutors, not judges, who decide the outcomes of cases. Hirano concluded that the Japanese criminal justice is abnormal, diseased (byo-teki), and ‘really quite hopeless’ (Hirano 1989). A long-standing criticism of Japanese criminal justice levelled by the international community has been the use of lengthy detention through the infamous daiyou kangoku, and interrogation during this period by police and/or prosecutors. This has led to numerous cases of false confessions and wrongful convictions (U.N. Human Rights Committee 1998; U.N. Human Rights Committee 2008). Daiyou kangoku, or ‘substitute prisons’, is a unique system under which a criminal suspect can be detained in a police holding cell. The relevant legislation stipulates that, as a general rule, suspects should be held in detention centres, as opposed to police lock-ups. However, in practice the majority of suspects are detained in daiyou kangoku for up to 23 days, and are subject to extremely lengthy interrogations, making the system a major cause of false confessions and wrongful convictions. Though the law prohibits convictions without material evidence, in practice Japanese prosecutions rely heavily on confessions, meaning that there is a

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strong dependency on interrogations during detention in daiyou kangoku, which as a rule suspects’ lawyers are not allowed to attend (Takahashi 2016). In completing its consideration of the sixth periodic report of Japan on its implementation of the provisions of the International Covenant on Civil and Political Rights, the Human Rights Committee again in 2014 emphasised these points. Sir Nigel Rodley, Chairman of the Committee, pointed out at the session that: the State party seemed to be regularly appearing before the Committee and receiving recommendations, which were then not acted on. Respect for human rights should not be a matter of available resources, especially if it came from a developed country like Japan; a case in example was the daiyokangoku system. While the Committee recognised that Japan was by and large a country respecting human rights, that did not mean there were no serious problems adversely affecting human rights. The Committee stated its expectation that the following review of Japan’s report would not need to address all the same issues once again (UN-OHCHR 2014). Concluding observations on the sixth periodic report of Japan, issued on 20 August 2014, stated that ‘(t)he State party should take all measures to abolish the substitute detention system or ensure that it is fully compliant with all guarantees in articles 9 and 14 of the Covenant’. It pushed for reforms, mainly in the criminal investigation process, such as guaranteeing: (a) alternatives to detention during pre-indictment detention (such as bail), (b) rights to counsel from the moment of apprehension and that defence counsel to be present during interrogations, (c) strict time limits for the duration and methods of interrogation (including its video-recording), and (d) the establishment of a complaint review mechanism for allegations of torture and ill-treatment during interrogation. In fact, just as this report by the Human Rights Committee was published, Japan was going through one of the most major criminal justice reforms since WWII, ultimately resulting in the 2016 Criminal Justice reform. However, will the latest reform improve the previously mentioned flaws, mainly the problems which occur during investigation or prosecution? This chapter examines the 2016 Criminal Justice reform, focusing on the new kyo-gi-go-i system – the bargaining negotiation and agreement system between prosecutors and cooperating suspects/defendants. First, it will review the two major criminal reforms in the past two decades: the first in the early 2000s and the second in the 2010s. It will then illustrate the contents of the latest reform, focusing on the new bargaining system, kyo-gi-go-i system.

Criminal Justice reform of 2004 Japan has gone through two major criminal justice reforms in the 21st Century. The first reform stemmed from recommendations by the Justice System Reform Council (JSRC), a panel established by the Cabinet in 1999.2 The report of the

30 Kana Sasakura JSRC, subtitled ‘For a Justice System to Support Japan in the 21st Century’, was presented to then Prime Minister Jun’ichiro Koizumi in June 2001 (Miyazawa 2013; Vanoverbeke 2015).3 The report proposed the introduction of graduate schools specialising in law modelled after the American system, an increase in the number of legal professionals4, the revival of Alternative Dispute Resolution (ADR) in civil procedure, and perhaps most significantly, the introduction of a mixed jury system (saiban’in system) in serious criminal cases. Pursuant to the JSRC’s recommendations, a proposal to establish the saiban’in system was submitted to the National Diet(the Japanese parliament), and the Act on the Participation of Saiban’in in Criminal Procedure (Saiban’in no Sanka suru Keiji Saiban ni Kansuru Ho-ritsu) was adopted in May 2004, with the system coming into effect five years later. This Act also revised the Code of Criminal Procedure, introducing the Pre-trial Arrangement Proceedings (Ko-han-zen Seiri Tetsuzuki, hereinafter PAP). Since trials involving juries (saiban’in) naturally involve burdens on laypersons, the government announced that trial sessions would be held consecutively, without the relatively long breaks between them that had been normal until then. This meant much more energy needed to be directed towards the preparation of trials before the proceedings actually began, and was the main impetus behind the PAP. During the procedure, both prosecution and defence disclose evidence related to the facts to be proved at the trial. The process is compulsory for saiban’in cases, and could be held in other cases as well, with the court’s approval.5 The PAP has resulted in a significant increase of evidence disclosure6, though the effect has of course been limited in scope, as the process is used only in a small number of cases. Additionally, the 2004 amendments to the CCP extended access to court appointed counsel to pre-indictment for serious cases. Until then, suspects were only allowed access to court appointed counsel after indictment, by which stage the prosecutors had usually already obtained a confession. Hence, there has been some progress through the 2004 reform. As Daniel H. Foote describes, the introduction of the saiban’in system ‘provided the opening for several other major reforms to the criminal justice system as a whole, including strengthening the defence counsel function and expanding discovery’ (Foote 2014). However, many of the changes have extended only to saiban’in trials, and ‘the pattern in non-saiban’in trials remains unchanged, with trials dominated by so-called cho-sho – written confession statements and written witness statements’ (Foote 2014). Moreover, it is troubling that the 2004 amendments to CCP had nothing to do with reforming the investigation process, the main criticism of Japanese criminal justice. For example, there had been a debate from as early as 1975 that interrogation by the police or prosecutors should be video recorded.7 In the following decades, kashika (visualisation) of interrogation had become a heated topic of debate.8 However, the 2001 JSRC report did not even touch on the subject: it states only that: while there are some opinions that audio and video recording of the questioning itself and the attendance of the defence counsel at the questioning are

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necessary, it is difficult to decide with certainty whether to introduce such measures at this stage, since careful attention should be paid to such measures with regard to the function and significance of the questioning of suspects in the whole structure of the criminal procedure. Thus, these should be regarded as matters to be considered in the future. (Shiho- seido kaikoku shingikai 2001) The main troubling features of the Japanese criminal process were preserved, including the domination of the process by prosecutors to the detriment of suspects and their legal counsel as well as the judiciary (commonly referred with derision as ‘kensatsukan-shiho- [“justice owned by prosecutors”]) (Johnson 2012; Johnson 2002). The process still lacked transparency, and the outcome of the case was still decided in closed interrogation rooms without the participation of legal counsel, and not in open court (Goto- 2016b: 6). There were almost no means to ensure external accountability.

Criminal Justice reform of 2016 After the reforms in the early 2000s, several cases of wrongful conviction came to light. Two cases were exonerated in 2007: the Himi rape case9 and the Shibushi case.10 In Himi, a man had been convicted of a 2002 rape case to which he confessed, but after he served his sentence and was released on parole, another person came forward in 2006 saying that he was the real perpetrator. In Shibushi, 15 people had been arrested and indicted for violation of the Elections Law. Six of them confessed to using bribes to ‘buy’ votes, but later on all denied the charges, and were eventually acquitted. These cases forced the National Police Agency to announce a ‘Policy on Ensuring Propriety of Examination in Police Investigations’ in 2008, a policy aimed at preventing abuses during the interrogation process (see Wachi and Watanabe 2017). Then, in March 2010, there was another highly publicised case of wrongful conviction: the Ashikaga case (Sugaya 2009; Sugaya and Sato 2009; Sato 2016), where Toshikazu Sugaya was exonerated by DNA evidence for the rape and murder of a young girl in 1990. One of the pieces of evidence that had led to his conviction in his original trial was the result of DNA testing conducted by the National Research Institute of Police Sciences (NRIPS, Kagaku Keisatsu Kenkyusho) in 1991. However, back then, NRIPS was using the MCT 118 method of DNA testing, which had only been in use for one year in the police department. The NRIPS lab had concluded that there was a match of both DNA and blood type, and that statistically only one person in 832 could have the same matches. With this result, the police interrogated Sugaya and he eventually confessed to the crime, after the police had told him that there was a DNA match. He later recanted, but he confessed the crime again in front of judges (which he later recanted again). After the retrial was filed, the prosecutors finally agreed to conduct a new DNA testing in 2007 using new STR testing technology, the result of which being that he could not have been the perpetrator. He was released from prison and was exonerated in 2009.

32 Kana Sasakura In 2010, an unprecedented scandal came to light when Atsuko Muraki (former head of the Equal Employment, Children, and Families Bureau at the Welfare Ministry) was acquitted of violation of the Postal Law (Muraki case, Muraki 2013). The evidence of her guilt had consisted of the confession of a co-worker who had also been indicted as a co-conspirator; however, the court found his confession to be unreliable, and acquitted Muraki. Even more scandalous was that one of the prosecutors of the Osaka District Public Prosecutors Office was later found guilty of tampering with evidence in the case. The Muraki case was highly publicised, and eventually the Ministry of Justice was forced to set up a commission to review the Public Prosecutors Office, which was called Kensatsu no Arikata Kento- Kaigi (‘Review Commission on How the Prosecution Should Be’). The Commission issued a final report in March 201111 and the Justice Minister established the Special Subcommittee on the Criminal Justice System in a New Era (Shin-Jidai no Keiji Shiho- Seido Tokubetsu Bukai, ‘Special Subcommittee’) in the Legislative Deliberation Council (LDC) of the Ministry of Justice (Justice Minister, Consultation (shimon) number 92 to the Legislative Deliberation Council). The Minister tasked the council with making recommendations: on how criminal substantive law and procedure law should be constructed, by re-evaluating the current situation of excessive reliance on interrogation and use of statement dossiers (cho-sho) and considering whether to introduce the system where suspect interrogation be video recorded, among other things, in light of the recent circumstance surrounding criminal procedure and to build a new criminal justice system for the new era. [emphasis added] This was the chance to reform the most troubling features of Japanese criminal procedure, in particular the investigation process, which had remained untouched by the 2004 reform: as one commentator stated, the 2004 reform was as if ‘the walls and roof of the house was renovated, but reforms of the foundation of the house were postponed’ (Goto- 2016). Time seemed ripe for reform of the foundation of the house, with the aim of enhancing transparency of criminal justice in Japan. Notably, there were five non-lawyer members on the Special Subcommittee, including Atsuko Muraki and Masayuki Suo-. Muraki was the defendant of the 2010 Muraki case which was the catalyst for the reform, and Suo- was the movie director of a popular 2007 film on wrongful convictions (Soredemo Boku ha Yattenai (I just didn’t do it’)). The Special Subcommittee held 50 meetings combined, 30 meetings by the Subcommittee, and additional 20 meetings by working groups. The final recommendation was presented in July 2014,12 approved as a whole by the LDC, and then submitted to the Minister in September of that year. The Ministry drafted a bill according to the recommendations that included broad amendments to the CCP and other relevant laws. The bill was finally passed by the Diet and promulgated on 3 June 2016, and is expected to go into force before June 2019.13

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There are five major points of the 2016 reform : (1) mandatory video-recording of interrogation of suspects in certain types of crimes (crimes investigated by the Special Investigation Team of Public Prosecutors Office and crimes which are subject to trial by saiban’in); (2) introduction of bargaining between prosecutors (kyo-gi-go-i system) and suspects/defendants and immunity and compulsory testimony of witnesses in criminal trials; (3) allowing increased use of wiretapping in investigation and promoting efficiency of its process; (4) promoting disclosure of evidence (e.g., disclosure of list of evidence obtained by the prosecutors); and (5) victim and witness protection.15 It should be remembered that the starting point of this reform was the numerous cases of wrongful convictions as well as prosecutorial misconduct in the late 2000s. Nevertheless, the result of the 2016 reform was mixed. Although some amendments aimed to further due process and the transparency of criminal investigations, other amendments would, surprisingly, strengthen the power of the prosecution authorities. This was a result of compromises during the deliberation in the Special Committee. For example, it was argued that the police and prosecutors had been finding that confessions or statements were more difficult to obtain in recent years. It would become impossible to find ‘the truth’, especially with the introduction of video-recording interrogations. They argued that other means to secure statements were necessary: hence the introduction of a new system to obtain statements through bargains (Yamaguchi 2014). In the end, the emphasis of the reform was not to limit the use of confessions, but rather to create new methods for the prosecution to obtain confessions or statements. Let us now turn to the new bargaining system and evaluate the 2016 reform efforts. 14

The new bargaining system (kyo-gi-go-i system) Bargaining in criminal procedure has traditionally been criticised by prosecutors themselves. For example, Kinko Sato wrote in 1974 that plea bargaining, as used widely in the United States, should not be introduced in Japan, since it would impair the truth-finding function of criminal justice, and the Japanese people have generally resisted the idea that justice can be bargained. However, the need for a bargaining system was argued from two separate sides in the 1990s (Sasakura 2011). Some prosecutors argued that such means were necessary to promote efficiency in the process, and as a new method of investigation, since the traditional style of interrogation was not as effective as it had been. They argued that plea bargaining and immunity from prosecution should be considered (Ugawa 1997; Ugawa 1998). On the other hand, some defence attorneys emphasised that there was already some measure of bargaining in the criminal procedure: namely when prosecutors and police (and even judges) would use reduction of sentences or early release from detention as a leverage for obtaining confessions. In these cases, suspects and defendants give up their rights for a ‘better’ outcome. The defence attorneys argued that if these ‘bargains’ were inevitable, at least there should be rules set to conduct them in a fair manner (Takano 2004).

34 Kana Sasakura Also the 2001 report of JSRC touched on the subject of immunity, saying that: The introduction of the investigative method of securing testimony through an immunity system is recognised as an effective measure against organised crime. (It can be an effective means of obtaining testimony concerning the internal circumstances of the organisation, sources of funding, etc.) On the other hand, there are issues concerning whether the immunity system meets the sentiments and sense of fairness of the Japanese people, so it is difficult to reach an immediate conclusion on whether that system should be introduced. Thus, further consideration is needed on this issue from various standpoints.16 These issues were also deliberated at the review commission on the prosecutors’ office, where it was argued that although heavy reliance on interrogation and statements was problematic, oral evidence was still of great value for the Japanese criminal justice. In order to obtain oral evidence, instead of interrogating suspects and witnesses, it was pointed out that other countries are using immunity, witness cooperation agreements or plea bargaining, and in countries where video-recording of interrogation is enacted into law, these methods are available. The report of the commission concluded that ‘there should be measures to provide incentive to give truthful statements/testimonies, and there should be sanction to untruthful statements to enable prosecutors to collect more accurate oral evidence.’ The idea was passed on to the Special Subcommittee. The new kyo-gi-go-i system was approved by the National Diet and came into effect on 1 June 2018.

New kyo-gi-go-i system ‘Kyo-gi-go-i’ means ‘negotiation and agreement’ and it is the first official bargaining system between a suspect/defendant and the prosecutor. Commonly referred to as ‘shiho--torihiki (justice bargaining, or bargained justice)’,17 the new system is prescribed in Articles 350–2 through 350–15 of CCP. Under the system, a prosecutor can negotiate and agree with a suspect/defendant (‘co-operator’) and his/her attorney to drop charges, charge him/her with a lesser crime, or pursue a lesser sentence (Art. 350–2(1)2), in return for cooperation against a third party (‘target’) such as (1) providing information during investigation18 or trial against a third party, or (2) providing evidence or to cooperate in other ways with the prosecutor or police (Art. 350–2). The cooperator need not testify at trial: if both parties agree, he/she will provide testimony during interrogation. Both parties (i.e. the prosecutor and the co-operator) must agree on the terms of the agreement, but it is always the prosecutor who has the initiative to start negotiation, since the process starts only when the prosecutor ‘finds it necessary’ (Art. 350–2). Thus, the kyo-gi-go-i further enhances prosecutorial discretion, giving the prosecution even more power over the suspect. The court does not intervene in the negotiation and agreement process. Kyo-gi-go-i therefore resembles the American system of informants or co-operation agreements. Unlike plea bargaining in the United States, kyo-gi-go-i is not an

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agreement on the suspect/defendant’s case: rather, it requires that suspect/ defendant cooperate with the prosecution on a third party target’s case, typically a co-conspirator or co-defendant (e.g. help the prosecution obtain conviction for a leader of a criminal organisation). Negotiations and agreements can only be initiated when both the co-operator as well as the target is suspected of committing one of the crimes specified in the law, such as white collar crimes (bribery, forgery, fraud, breach of trust, embezzlement, violation of anti-trust law or tax fraud) or crimes involving criminal organisations (e.g. violation of laws on controlled drugs or firearms). Crimes such as murder or rape were excluded, in consideration of the victims. There also has to be a tangible connection between the cases of both the cooperator and the target.19 Other factors that a prosecutor should consider when deciding whether to use this system are to include the significance of the evidence that can be obtained by kyo-gi-go-i, and the gravity of related offences and extenuating circumstances. If the prosecutor finds that the case is suited for negotiation he commences the kyo-gi-go-i. The law stipulates that the agreement must be fair: the content of the agreement and benefits given by the prosecutor should be balanced. If the reward is disproportionately large, the co-operator will not be able to make a reasonable decision. The attorney for the co-operator must always be present during negotiation and agreement (Art. 350–3, 350–4). The attorney has to also agree to the agreement. However, the attorney cannot be present when the co-operator is interrogated after and in accordance with the agreement. The agreement must always be put into writing which is called ‘go-i naiyou shomen (written document of the content of agreement)’ (Art. 350–3). This document is introduced as evidence at the trial where the co-operator is indicted, or where the co-operator testifies (or where a statement dossier of the co-operator in accordance with the agreement is introduced as evidence) at the target’s trial. The document contains the result of the negotiation and the agreement. It was argued that the process of negotiation and agreement should also be disclosed and be subject to review, and when the Diet passed the bill, an additional resolution was approved which stated that the process of negotiation should be recorded in writing by the prosecutor. However, this report will only include the names of the parties, what the prosecutor explained to the co-operator, what the co-operator offered to do, the content of the co-operator’s statement during the negotiation, the reward offered by the prosecutor, co-operator and attorney’s opinion to the reward.20 There will be no video-recording of the process of negotiation or agreement.

Concerns about the kyo-gi-go-i system During the deliberation in the Special Subcommittee and in the Diet, kyo-gi-go-i was a subject of heated debate. The biggest concern was that the system might be a cause of wrongful convictions or accusations (Shiratori et al. 2015; Sasakura 2016; Sasakura 2018; Goto- et al. 2018). As a quote in the Japan Times article

36 Kana Sasakura points out, ‘there will be a strong incentive to implicate others to get away with their own crimes or receive a lighter sentence … That does lead to the possibility of wrongful accusations and convictions.’21 Kyo-gi-go-i is a systematic effort to obtain statement/testimony through a reward. It is widely known that testimonies by informants who cooperate with prosecutors and police are a major cause of wrongful convictions in the United States. Indeed, according to the Innocence Project, in 15 percent of wrongful conviction cases overturned through DNA testing, statements from people with incentives to testify were critical evidence used to convict an innocent person.22 According to a 2004 Northwestern University School of Law study,23 so-called ‘snitch’ cases account for 45.9 percent of the 111 death row exonerations since capital punishment was re-introduced in the 1970s. Nevertheless, neither the Special Subcommittee nor the National Diet conducted an in-depth research of the problematic situation in the United States (Sasakura 2018). Proponents of the kyo-gi-go-i system argue that the Japanese system is different from the U.S. one in that it has several safeguards written in the law, namely (1) presence of the attorney during negotiation and agreement proceedings; (2) introduction of go-i naiyou shomen (written document of the content of agreement) in evidence in both co-operator and target’s trial; and (3) new rules to punish ‘untruthful testimony’ as a crime (if the co-operator gives perjured testimony at target’s trial, he/she is punishable by perjury). According to the proponents of kyogi-goi, other means to ensure truthful testimony or statement of the co-operator include (4) the written records of the process of negotiation; (5) cross-examination by the target’s attorney when the co-operator testifies; and (6) the assumption that further investigation will be carried out by prosecutors to test the truthfulness of the co-operator’s testimony/statement (Sasakura 2018). One scholar who was on the Special Subcommittee and a proponent of the system praises this system since: we have found that the present system of detaining a person, interrogating thoroughly in a black-box interrogation room and creating statement dossiers has limits and problems, this method of deciding the outcome in an open court, not by a statement dossier, with accurate legal advice and reasonable negotiation between lawyers, fits properly the stated aim of ‘Criminal Justice System in the New Era’. (Sakamaki 2016) However, the effectiveness of the previously discussed measures is questionable. First of all, the attorney present at negotiation and agreement is the co-operator’s attorney, who cannot test and is not responsible for the truthfulness of his client’s testimony/statement. Secondly, even if the go-i naiyou shomen is introduced at trial, it only proves that there was an agreement between the co-operator and the prosecutor: it does not prove anything about the adequacy of the negotiation and agreement process. Thirdly, since the new law provides for punishment for ‘untruthful testimony’, there is the possibility that a co-operator might hesitate to

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retract his/her false statement/testimony, in the fear of being punished. In addition, written records may not be sufficient to test the fairness of the process of negotiation and agreement, the effectiveness of cross examination of the cooperator at the target’s trial is dubious, and lastly, there is no guarantee that the prosecutor will investigate the truthfulness of the co-operator’s testimony/ statement. It was argued during deliberation of the bill that there should be further safeguards, such as the disclosure of evidence or information regarding the negotiation and agreement to the attorneys of both the co-operator and target, videorecording of the process of negotiation as well as the interrogation before and after the negotiation, and a requirement of corroborating evidence of the co-operator’s statement/testimony. These measures were not adopted. Under the current system, there remains a risk of false accusations and testimony by the co-operator leading to wrongful conviction of the target (Sasakura 2018; Goto- 2016a).

Conclusion It is ironic that though the 2016 criminal justice reform was triggered by a series of cases of wrongful convictions as well as prosecutorial misconduct, the reform ended up strengthening prosecutors. As this chapter has argued, the fundamental problem of the Japanese criminal justice lies in excessive power of the prosecutors, lengthy detention and interrogations, and putting too much emphasis on obtaining statements and confessions. Although the 2016 reform finally introduced mandatory video-recording of interrogations by prosecutors, it is limited mainly to interrogation of detained suspects in saiban’in cases. Video-recording is used only in 2–3 percent of cases, and excludes interrogation of suspects who are present themselves on a ‘voluntary’ basis, as well as the interrogation of witnesses. On the other hand, as the new kyo-gi-go-i system shows, the reform reinforced the power of the prosecutors and heightened the risk of wrongful convictions, quite contrary to the initial goal of the reform. It has merely created another avenue for the prosecutors to obtain more statements.

Notes 1 There were several notorious cases of wrongful conviction which came to light in the 1970s and 1980s, including four death row cases (Menda case, Saitagawa case, Shimada case, and Matsuyama case). See Kamo 1980. 2 Judicial reforms would normally be discussed under the control of the Ministry of Justice, but the 1999–2001 reform council was under the direct control of the Cabinet. 3 Shiho- Seido Kaikoku Shingikai [JSRC], Shiho- Seido Kaikaku Shingikai Ikensho – 21 Seiki no Nihon wo Sasaeru Shiho- Seido [Report of the JSRC - A Justice System for Japan in the 21st Century], 12 June 2001. The official English translation is available at http s://japan.kantei.go.jp/judiciary/2001/0612report.html. 4 The number of persons who pass the Japanese bar exam is fixed every year by the government. 5 In 2016, the law was amended to give all parties right to apply for a PAP. 6 See, e.g., Saito 2015 for discussions on disclosure of evidence in Japan.

38 Kana Sasakura 7 8 9 10 11 12 13

14 15

16 17

18

19

20 21 22 23

The first suggestion to audio-record the interrogation was in Kumamoto 1975. For a brief introduction of the discussions, see Inada 2017: 18. Toyama District Court, Takaoka Branch 2007. 10. 10 Decision. Kagoshima District Court 2007. 2. 23 Decision. Obtainable at: www.moj.go.jp/content/000072551.pdf www.moj.go.jp/content/000125177.pdf The Lower House of the Diet passed the bill in August 2015, but the Diet came to the end of its term shortly afterwards. When the Diet resumed in 2016, the Upper House managed to pass it May of the same year. For the process of the 2016 reform, see Miyazawa and Hirayama 2017. For each amendment, a different timeline was set for effectuation. For example, video-recording of interrogation will come into effect in 2019, whereas the disclosure of lists of evidence already started in 2016. For an overview of the 2016 reform in English, see Umeda 2016. Goto- 2016b: 4. Other amendments include: (1) expansion of court appointed counsel to all cases where the suspects are in detention; (2) articulation of the circumstances of granting discretionary bail; (3) raising maximum penalty for refusal of testimony, destruction of evidence, intimidation of witnesses, etc. Report of JSRC. It should be noted here that immunity is not exactly ‘bargaining’ since it is a means to compel testimony, but bargaining and immunity are similar in that they are both means to obtain a testimony and are used widely in the United States. Some would call this new system ‘plea bargaining’: however, it is misleading to call kyo-gi-go-i system as a plea bargaining since (1) there is no plea proceeding in Japan to begin with, and (2) the negotiation focuses not on making the suspect/defendant plea for his/her own case, but to cooperate with the prosecution to investigate or prosecute a third party’s case. See Kato 2014 for a comparison with similar systems in other countries. The new system admits the co-operator to give statements against the target during interrogation and create a statement dossier which could be introduced as evidence at trial: this seems to contradict the goal of the reform to limit ‘excessive reliance on interrogation and use of statement dossiers (cho-sho)’. Since it was debated during the discussion of the Bill in the National Diet that ‘jailhouse informants’ were a major cause of wrongful convictions of the cases later exonerated by DNA testing in the United States (see, e.g. Garrett 2011), the connection between two cases should be established. The Bill was amended during the discussion in the Lower House. Notice from the Supreme Public Prosecutors Office on 19 March 2018. Japanese-style plea bargaining debuts but authorities fear spread of false testimony, The Japan Times 2018 [quoting Sasakura, Kana]. Innocence Project, www.innocenceproject.org/causes/incentivized-informants/ The Snitch System, obtainable at www.innocenceproject.org/wp-content/uploads/ 2016/02/SnitchSystemBooklet.pdf

Bibliography Center on Wrongful Convictions: 2004, The Snitch System, www.innocenceproject.org/wpcontent/uploads/2016/02/SnitchSystemBooklet.pdf Foote, Daniel H.: 2014, Citizen participation: appraising the Saiban’in system, 22Mich. St. Int’l L. Rev. 755 Garrett, Brandon: 2011, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Havard UP. Goto-, Akira: 2016a, ‘2015 nen Keisoho Kaisei ni okeru Kyo-gi-Go-i Seido’ [Kyo-gi-Go-i System in 2015 CCP Reform], 8Sogo Ho-ritsu Shien Ronso.

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Goto-, Akira: 2016b, ‘Keisoho-tou Kaiseian no Zentaizo’ [A full picture of the Bill to Amend CCP], 88(1) Ho-ritsu-Jiho at 4. Goto-, Akira, Nobuo, Gohara, and Sasakura, Kana: 2018, ‘Panel Discussion: Nihongata ShihoTorihiki to sono Kadai’ [The issues of Japanese bargaining], 756Hogaku-Seminar at 36. Hirano, Ryuichi: 1989, ‘Diagnosis of the current code of criminal procedure’. 22Law Japan at 129. Hirao, Kaku: 2016, Nihon Ban Shiho- Torihiki to Kigyo Taio [The Japanese bargaining and response by corporate businesses], Seibunsha. Ho-sei-Shingikai: Shinjidai no Keiji Shiho- Tokubetsu Bukai [Special subcommittee on the criminal justice system in a new era]: 2014, Aratana Keijishiho- Seido no Kouchiku ni tuiteno Chosa Shingi no Kekka [The result of research and discussion for establishing a new criminal justice system]. www.moj.go.jp/content/000125177.pdf Inada, Takashi: 2017, ‘Torishirabe Kashika-ron no Kako to Genzai’ [Past and present state of the discussion to visualize interrogation], 750Hogaku-seminar at 18. The Innocence Project: 2018, Incentivized Informants, www.innocenceproject.org/causes/ incentivized-informants/ The Japan Times: 2018, ‘Japanese-style plea bargaining debuts but authorities fear spread of false testimony’, 31 May. Johnson, David T.: 2002, The Japanese Way of Justice: Prosecuting Crime in Japan, Oxford. Johnson, David T.: 2012, ‘Japan’s prosecution system’, 41Crime & Just. at 1. Justice Minister: 2012, Consultation (shimon) number 92 to the Legislative Deliberation Council. Kagoshima District Court: 2007, Decision, 23 February. Kamo, Yohisuke ed.: 1980, Keiji Saishin no Kenkyu [Research on criminal retrials], Seibundo. Kato, Katsuyoshi:2014, ‘Keiji Tetuzuki ni okeru Kyo-gi-Go-i’ [Kyo-gi-go-i in criminal procedure] in:Festschrift for Takehiko Sone and Morikazu Taguchi, Seibundo-. Kawaide, Toshihiro: 2015, ‘Kyo-gi Go-i Seido oyobi Keiji Menseki Seido’ [Kyo-gi Go-i system and immunity system], 12Quarterly Jurist at 65. Kawasaki, Hideaki and Mishima, Satoshi: 2014, Keiji Shiho- Kaikaku toha Nanika [What is criminal justice reform?], Gendai-Jinbunsha. Kawasaki, Hideaki et al.: 2017, 2016 nen Kaisei Keijisoshoho-Tsushin Bojuho Jobun Kaiseki [2016 amendments to CCP and wiretapping law: analysis of amendments], NihonHyoronsha. Kosakai, Hisashi et al.: 2016, Q&A Heisei 28 nen Kaisei Keijisoshohotou no Pointo [Important issues in 2016 CCP amendments], Shin-Nippon Hoki. Kensatsu no Arikata Kaigi: n.d., Kensatsu no Saisei ni Mukete [Towards the rebirth of prosecution], www.moj.go.jp/content/000072551.pdf Kumamoto, Norimichi et al.: 1975, ‘Taiho, Torishirabe, Koryu, Bengo – Ripporon to shiteno Gutaiteki Teian wo Chusin ni’ [Arrests, interrogations, detentions, and representation: specific legislative proposals], 47 Ho-ritsu-jiho at 13. Miyazawa, Setsuo-: 2013, ‘Successes, failures, and remaining issues of the justice system reform in Japan: an introduction to the symposium issue’, 36Hastings Int’l & Comp. L. Rev. at 313. Miyazawa, Setsuo- and Hirayama, Mari: 2017, ‘Introduction of videotaping of interrogations and the lessons of the Imaichi case: a case of conventional criminal justice policymaking in Japan’, 27Wash. Int’l L. J. at 149. Murai, Toshikuni and Kaido, Yuichi: 2017, Kashika, Tocho, Shiho--Torihiki wo Tou [Questioning visualisation of interrogations, wiretapping, and bargaining], Nihon-Hyoronsha.

40 Kana Sasakura Muraki, Atsuko: 2013, Watashi wa Makenai, Chuo-koron Shin-Sha. Notice from the Supreme Public Prosecutors Office: 2018, Shoko Shushutou heno kyoryoku oyobi sotsui ni kansuru gouiseido nounyou ni tsuite [On practice of Go-i-System for cooperation for evidence collection and prosecution], 19 March. Saito, Tsukasa: 2015, Kousei na Keiji Tetsuzuki to Shoko Kaiji Seikyuken [Fair criminal procedure and the right to request disclosure of evidence], Ho-ritsu Bunka. Sakamaki, Tadashi: 2016, ‘Go-i Seido- Keiji Menseki Seido no Dounyu’ [Introduction of Go-i system and criminal immunity system], 104Business Law Journal at 15. Sasakura, Kana: 2011, Shiho- Torihiki no Zentei Joken [Prerequisite for plea bargaining], in: Festschrift for Dr. Toshikuni Murai, Jinken no Keijihogaku, Nihon-Hyoronsha at 385. Sasakura, Kana: 2016, ‘Keisoho Kaisei to Kyohansha Kyojutsu ni yoru Rissho’ [Amendments to CCP and proof by co-conspirater statements], 88(1) Houritsu-Jiho at 22. Sasakura, Kana: 2018, ‘Enzai Boshi to Nihongata Shiho- Torihiki’ [Preventing wrongful convictions and Japanese bargaining], 756Hogaku-Seminar at 57. Sato, Hiroshi: 2016, ‘Ashikaga Jiken to Innocence Project’ [Ashikaga case and Innocence Project], 88Quarterly Keiji Bengo at 76. Sato, Hiroshi ed.: 2017, Sousa to Bengo [Investigation and defense], Iwanami Shoten. Sato, Kinko: 1974, Torihiki no Shakai--Amerika no Keijishihou [ A society of bargains-American criminal justice system], Chuko-Shinsho. Shiho- seido kaikoku shingikai [JSRC]: 2001, ‘Shiho- seido kaikaku shingikai ikensho – 21seiki no nihon wo sasaeru shiho- seido’ [Report of the JSRC – a justice system for Japan in the 21st century], 12 June, www.kantei.go.jp/jp/sihouseido/report/ikensyo/ pdf-dex.html (The official English translation is available at https://japan.kantei.go.jp/ judiciary/2001/0612report.html) Shiratori, Yuji et al.: 2015, Nihonban Shiho- Torihiki wo Tou [Questioning the Japanese bargaining], Junpo-sha. Sugaya, Toshikazu: 2009, Aruhi Watashi wa Han’nin ni Sareta [One day I became the criminal], Asahi Shimbun Shuppan. Sugaya, Toshikazu and Sato, Hiroshi: 2009, Jinmon no Wana [The bait of interrogations], Kadokawa Shoten. Takahashi, Saul: 2016, ‘Daiyou Kangoku: Systemic Human Rights Violations in Preindictment Detention in Japan’, in Weber, Leanne et al. ed., The Routledge International Handbook of Criminology and Human Rights, Routledge. Takano, Takashi: 2004, ‘Nihonteki Shiho--Torihiki no Joken’ [Prerequisite for a Japanese plea bargaining], 39Quarterly Keijibengo at 58. Toyama District Court, Takaoka Branch: 2007, Decision, 10 October. Ugawa, Haruhiko: 1997, ‘Shiho- Torihiki wo Kangaeru’ [Thinking about plea bargaining], 1683Hanrei-Jihou at 31. Ugawa, Haruhiko: 1998, ‘Shiho- Torihiki wo Kangaeru’ [Thinking about plea bargaining], 1627Hanrei-Jihou at 38. Umeda, Sayuri: 2016, Japan: 2016 Criminal Justice System Reform, The Law Library of Congress, www.loc.gov/law/help/criminal-justice-system-reform/japan-criminal-justicesystem.pdf U.N. Human Rights Committee: 1998, Concluding Observations of Human Rights Committee: Japan. U.N. Doc. CCPR/C/79.Add. 102, 19 November. U.N. Human Rights Committee: 2008, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant Concluding Observations of the Human Rights Committee, Japan. U.N. Doc. CCPR/C/JPN/CO/5, 18 December.

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UN-OHCHR: 2014, Human Rights Committee Considers Report of Japan, 16 July, www. ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14878 Vanoverbeke, Dimitri: 2015, Juries in the Japanese Legal System: The Continuing Struggle for Citizen Participation and Democracy, Routledge. Wachi, Taeko and Watanabe, Kazumi: 2017, ‘Current practice in interviews with suspects in Japan’, in: International Developments and Practices in Investigative Interviewing and Interrogation, Routledge. Yamaguchi, Naoya: 2014, ‘Torishirabe ni Yoranai Kyojutsushoko Shushu Shudan no Rippoukadai’ [Legislative agenda: obtaining statements without interrogations], 85(8) Ho-ritsu-jiho at 18. Yoshikawa, Takashi and Yoshida, Masayuki: 2018, ‘Keijisoshoho no Ichibu wo Kaisei Suru Houritsu ni Tsuite (3)’ [On 2016 Amendments to CCP], 70(1) Hoso Jiho at 75.

4

An examination of the force used by Kidoutai (riot police) and Japan Coast Guard Ai Kihara-Hunt

Since the American occupation of Japan after World War II, a number of American military bases have been maintained in the country, a large proportion of which have been concentrated in Okinawa. The military occupation of Japan ended in 1952, but Okinawa remained under American control until it was returned to Japanese sovereignty in 1972, and the prefecture continues to accommodate 74 percent of American bases, which occupy 10 percent of its land.1 Okinawa has a distinct language and culture, and was an independent State until it was annexed by Japan in 1872. Many civil society organisations, as well as human rights treaty bodies, have recommended the government to recognise the people of Okinawa as an indigenous people – something the government has refused to do (HRC 2014: para. 26; CmERD 2010: para. 21; UNGA 2007: Articles 26, 19). In 2006, Doudou Diène, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, stated that the heavy burden born by Okinawa in terms of American military bases is the result of discriminatory policies (UN 2006). In 1996, the US agreed to return to Japan about half of a 7,800-hectare base in the north of Okinawa, provided that six existing helipads were relocated. Subsequent negotiations resulted in an agreement to relocate the helipads to Takae, in Kunigami ward, and to a base to be newly established in Henoko, Nago city. This plan to build new bases in Takae and Henoko was met by local opposition, mainly due to safety concerns (in particular because of expected military exercises involving the unsafe Osprey warplane); a perceived neglect of the views of the local government and people; anticipated environmental damage; and a general sense of outrage at the disproportional burden of people in Okinawa. In Takae, sit-in protests started in July 2007, right after the building of the first helipad started (see Section 2 in this chapter). In Henoko, protests started in 2014 (Mainichi Shimbun 2016a), with a series of sit-in protests in front of the gate of Camp Schwab, near the new Henoko base in question. There have also been seabased protests, with protesters approaching the base on boats and canoes (see Section 2 in this chapter). In response, authorities designated restricted areas around the new sites, and have since then forcibly removed protesters to move forward with the building of the new bases (Human Rights Now 2016: 3). In particular, since July 2016, the

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government started to deploy Kidoutai (riot police) from Okinawa and other prefectures in large numbers (Human Rights Now 2016: 2). Incidents of excessive use of force by Kidoutai, as well as arbitrary arrest and detention, followed by problems of fair trials have been reported by the media and civil society organisations, and there have also been reports of the Japan Coast Guard using force in removing protesters at sea. Force has reportedly also been used to remove journalists (see Section 2 in this chapter). This chapter will analyse reported incidents of excessive force used by law enforcement against protesters and journalists at Henoko and Takae using human rights standards. Related allegations of arbitrary arrests and detentions, racial discrimination and infringements of the right to self-determination are briefly discussed, only to the extent that they may add to problematic circumstances as a whole. The issue is on-going, but only information until 31 December 2017 has been gathered for this chapter.

1 Standards Right to assembly The permissive level of force in the context of protests is set out in international human rights law. For this purpose, sit-in protests and protesting on canoes on the sea are considered to be a form of assembly.2 This is the case even for lengthy sitin protests.3 The right to assembly is enshrined in Article 21 of the International Covenant on the Civil and Political Rights (ICCPR), which provides as follows: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Assemblies can contribute to democratic systems, play a fundamental role in public participation and are crucial for protecting and promoting a wide range of human rights, in particular for bringing the marginalised people’s voices to the public (UNGA 2016a: paras 5–6). It follows that the freedom of assembly should be enjoyed to the greatest extent possible, and restrictions to the exercise of this right must be an exception, not a norm (UNGA 2016a: para. 29; UNGA 2016b: Principle 3). Permissible restrictions require legality, necessity and proportionality, and must be in pursuance of one of the aims explicitly provided in Article 21 of ICCPR (UNGA 2016a: para. 29). The legality test requires a legitimate and formal basis in law for restrictions, and that the restricting authority must have the mandate and powers to do so. The law itself must be sufficiently precise (UNGA 2016a: para. 30). Under the necessity test, any restrictions must be strictly necessary in a democratic society, and be the least intrusive way to achieve the desired result (UNGA 2016b: Principles 2, 3;

44 Ai Kihara-Hunt UNGA 2016a: para. 30). A range of measures should be considered and a blanket ban on the right to assembly, even in specific places or at particular times, are intrinsically disproportionate.4 Finally, the proportionality test requires that any restrictions be appropriately and narrowly tailored to achieve their protective function, taking into consideration the full range of rights (UNGA 2016b: Principle 3; UNGA 2016a: para. 30). The use of public space by an assembly does not in itself provide the authority to restrict such assembly. Assemblies are ‘an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic’ (UNGA 2012: para. 41; OSCE/ODIHR 2010: para. 20). While some measure of coordination may be necessary, a ‘certain level of disruption to ordinary life caused by assemblies, including disruption of traffic, annoyance and even harm to commercial activities, must be tolerated if the right is not to be deprived of substance’ (ECtHR 2008: para. 44; IACmHR 2009: para. 197; UNGA 2016a: para. 32). Furthermore, when this right to assembly is exercised by groups or individuals who have historically experienced discrimination, including indigenous peoples, the authorities have obligation to make an additional effort to ensure ‘equal and effective protection’ of their right (UNGA 2014; UNGA 2016a: para. 16). This is particularly relevant in the case of Okinawa since, as noted earlier, human rights treaty bodies have expressed concern regarding persistent discrimination against Okinawans and have called on the government to recognise them as an indigenous people, with all the rights that would entail. Both de jure and de facto restrictions on the right must be evaluated. Measures that may have a chilling effect in the exercise of the right to freedom of assembly may violate the right to assembly. For example, the collection and processing of personal information of assembly participants through recording devices or closedcircuit television and undercover policing must not be conducted excessively or in a manner that interferes with the right to freedom of assembly.5 The onus of justifying a limitation rests with the authority.6 If a State invokes national security and protection of public order to restrict an assembly, it must demonstrate the precise nature of the threat and the specific risks posed (HRC 2005a: para. 7.3). Because of the recognition of the inalienable right to participate in assemblies, there is a presumption that assemblies are lawful.7 In addition, even if participants in an assembly are not peaceful and as a result forfeit their right to peaceful assembly, they retain all other rights. Therefore all assemblies are protected (UNGA 2016b: Principle 5). Right to freedom of expression Very closely related is the right to freedom of expression, enshrined in Article 19 of the ICCPR and Article 19 Universal Declaration of Human Rights (UDHR) – in particular with regard to monitors and journalists not participating in protests. States have an obligation to protect their right (UNGA 2016b: Principle 6; UNGA 2016a: paras 89–90) to observe and monitor assemblies, including their recording the protest or any law enforcement operations (UNGA 2016a: para. 71).8 It is also their

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right to record any interaction where they are being recorded by a State agent (UNGA 2016a: paras 89–90). Any interference, including the seizure or damage of any equipment, should be prohibited by law.9 Limitations of these rights must conform to a similar formula of legitimacy, necessity and proportionality to that of the right to assembly (HRC 1999; UNGA 2000: Annex VI; ICCPR 1966: Article 19–3, HRC 2005a; HRC 2005b). The authority must identify the nature of any threat in a specific and individualised fashion (HRC 2003; HRC 2011: para. 35) and demonstrate the necessity and proportionality of the specific action taken, in particular through establishing a direct and immediate link between the expression and the threat. Use of force Managing an assembly is normally the responsibility of law enforcement officials (UNGA 1979: Article 2). The scope of the managing authority’s permissible use of force must survive the strict legality, necessity, proportionality tests.10 In this context, two documents are of particular relevance: The Code of Conduct for Law Enforcement Officials (UNGA 1979), and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN 1990). The legality test demands that guidelines on the dispersal of assemblies detailing the circumstances that warrant dispersal, all necessary steps before a decision to disperse, and who may order dispersal, be developed according to human rights law and be made public (UNGA 2016a: para. 67g). The necessity test demands that force may be used only when strictly necessary and ‘to the extent required for the performance of their duty’ (UNGA 1979: Article 3). This restricts both the kind and degree of force (UNGA 2016a: para. 57). Intrusive pre-emptive measures are prohibited except where ‘a clear and present danger of imminent violence actually exists’ (UNGA 2016b: Principle 4). Even where law enforcement officials disperse unlawful assemblies, they must avoid the use of force, or if not practicable, restrict such force to the minimum extent necessary (UN 1990: Principle 13). The proportionality requirement limits the use of force proportionate to the threat posed by the particular person targeted and not by the collectivity (UNGA 2016a: para. 58; UNGA 1979: Article 3, Commentary b to Article 3). Translating these tests into an operational setting, the law enforcement agencies should deploy officers who demographically represent the community11 and who are appropriately trained and equipped, with a range of means to allow for a differentiated use of force (UNGA 2016a: para. 67a; UN 1990: Principle 2). Law enforcement officials must, as much as possible, avoid (UNGA 2016a: para. 67a) a situation in which force is required, through adequate planning, and a genuine and continuous attempt to engage with the assembly organisers, participants and monitors (UNGA 2016b: Principle 4; UNGA 2016a: paras 49c-d, 72b). When the use of force is unavoidable, the least harmful means of force, both in terms of the kind and degree, must be used (UNGA 2016a: para. 57; OHCHR 2002). This requires that any force used should ‘be targeted as individuals using violence or to avert an imminent threat’ (UNGA 2016a: para. 57).

46 Ai Kihara-Hunt Dispersal must be resorted to on an exceptional basis (UNGA 2016a: para. 62), only when strictly unavoidable. Dispersal is permitted, for example, ‘where violence is serious and widespread and represents an imminent threat to bodily safety or property, and where law enforcement officials have taken all reasonable measures to facilitate the assembly and protect participants from harm’ (UNGA 2016a: para. 61).12 Before approving dispersal, violent individuals should be identified and isolated from the assembly (UNGA 2016a: para. 61). Mere inconvenience to others (IACmHR 2009: para. 198) or temporary disruption of vehicular or pedestrian traffic on its own are not permissible ground for dispersal (UNGA 2016a: para. 62). Dispersal may be justified where an assembly prevents access to essential services, such as blocking the emergency entrance to a hospital, or where an assembly makes serious and sustained interference with traffic or the economy, for example by blocking a major highway for days (UNGA 2016a: para. 62). Failure to notify the authorities is not a permissible justification (UNGA 2016a: para. 62). In case of dispersal, the assembly participants should be clearly informed, and should be allowed reasonable time to disperse voluntarily (OSCE/ ODIHR 2010: para. 168). Only if that fails may law enforcement officials intervene further (UNGA 2016a: para. 63). Other actions may have impact on the rights to assembly and expression. Arrest of protesters under spurious, unreasonable or disproportionate charges prevent or punish the exercise of these rights, and may violate these rights (UNGA 2016a: para. 45; UNGA 2016b: Principle 4). No one should be held liable criminally, civilly or administratively for merely organising or participating in a peaceful protest (UNGA 2016b: Principle 2). Mass arrests of assembly participants are often indiscriminate and arbitrary (UNGA 2016a: para. 45). Arrest must be conducted in accordance with human rights standards, including those relating to the rights to privacy, liberty and due process rights (UNGA 2016b: Principle 4) and in such a case, detention conditions must meet internationally set minimum standards.13 Recording peaceful assembly participants in a context and manner that intimidates or harasses is also an impermissible interference (UNGA 2016a: paras 73, 76).

2 Reported violations The response of the government to protests in Takae and Henoko appears to have been sweeping and restrictive, and raises numerous concerns regarding Japan’s compliance with the previously mentioned human rights standards. Law enforcement actions, mainly by the Kidoutai and the Coast Guard, have been characterised by questionable arrests, restrictions on freedom of movement seemingly aimed at reducing the scale of protests and the preventing of reporting by journalists. Since 19 July 2016, the government has deployed over 100 members of Kidoutai from all over the country to Takae. Up to 500 Kidoutai officers regularly engaged in the forcible removal of protesters sitting in front of the construction site gate (Human Rights Now 2016: 1). Allegations of excessive use of force by the Kidoutai are numerous: for example, on 22 July 2016, a protester was

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punched in the face by a Kidoutai officer (Gomizeromirai2 2016). On 22 August 2016, the Kidoutai physically surrounded protesters, pushed them in a narrow space between two Kidoutai vehicles to immobilise them for two hours, and forcibly removed the protesters’ tent and vehicles. A woman aged 87 was grabbed by her arm and shoved on the ground, receiving an injury that required five stitches. Another Kidoutai officer pushed a 63-year-old man to the ground with his knees and held him there by putting his knees on the man’s chest. The seriousness of the injuries of both of those people meant they had to be taken to hospital by ambulance (Iho- Sosho- no Kai 1 n.d.; Okinawa Times Plus 2016). On 24 August 2016, a 72-year-old female protester was taken to hospital after hitting her head during a scuffle as Kidoutai were forcibly removing protesters (Ryukyu Shimpo 2017; Shiawase no Aoi Tori 2017). This pattern is repeated in Hekono, in particular with the Japan Coast Guard’s actions against sea-based protests. In May 2014, the government announced that any person entering a marked restricted zone in the sea neighbouring the site would be subject to prosecution. In April 2015, Shigeru Yoshida was protesting on a boat on the sea. Coast Guard officers boarded his boat screaming at him, and choked him as his boat sank. He was arrested for ‘obstructing official duties’, and was eventually sentenced to one and half years imprisonment with three-year suspension (Okinawa Koza 2015; Uchida 2017; Morita 2015). In September 2015, Coast Guard officers grabbed a protester by his throat, screaming at him and leaving him with neck injuries requiring two weeks’ treatment (Japan Times 2015). Journalists have also been subject to forced removal and obstruction. On 20 August 2016, Kidoutai in Takae physically restrained a journalist working for a local newspaper critical of the new bases. The journalist was wearing the newspaper’s armband and clearly identifiable as a journalist, yet Kidoutai officers grabbed his arms and pushed him for 40 metres into a narrow space between parked Kidoutai vehicles (Ryukyu Shimpo 2016a). On the same day, another journalist from another local newspaper was also forcibly removed from the protest, and was prevented from reporting (Iho- Sosho- no Kai 1 n.d.). On 20 January 2016, at Henoko, a Coast Guard officer held down on the ground Asako Kageyama, a female filmmaker, and seized her camera (Japan Times 2015). There are also reported examples of intimidation of protesters: for example, on 22 July 2016, police video recorded the faces, words and actions of the participants of the sit-in protest at Takae (Iho- Sosho- no Kai 1 n.d.). In addition, the police often set up roadblocks and checkpoints, resulting in a discouragement of the protests. On 19 July 2016, Kidoutai closed the main highway to the site of the protests (the road is also a main thoroughfare for residents) with multiple roadblocks between 09.30 and 12.00. Protesters were prevented from accessing the site. On 22 July, 17 November and 9 December, police set up two vehicle checkpoints on the same road, and stopped vehicles for inspection for nearly an entire day. On 7 November 2016, vehicles were also stopped and prevented from taking people to the protest site. These vehicle inspections were conducted without following the necessary procedure under the

48 Ai Kihara-Hunt Road Traffic Act to request for an opinion from Okinawa prefecture (Iho- Soshono Kai 1 n.d.). Surveys conducted by civil society organisations, in particular by Japan Environmental Lawyers Federation (JELF) and Save The Dugong Foundation, suggest that these are not isolated cases, but indicative of a widespread pattern. The first survey was conducted between 31 July and 4 August 2017 for five days, in front of the gate of Camp Schwab, Henoko. There were 272 answers, and out of the 207 answers already taken into account in the report, over 70 percent, or 149 respondents, stated that they faced violence when Kidoutai forcibly removed them from the gate (Ryukyu Asahi Housou 2017). Around 70 percent of the respondents were residents of Okinawa, and over 80 percent were aged over 60. Ninety persons indicated that Kidoutai had twisted their arms or otherwise grabbed them forcefully, with 42 persons having received bruises. Five persons had been beaten, five others kicked, two responded that they had been pushed down on the ground, and two others had been grabbed by the chest. A woman in her 30s complained that she had been pushed from behind and had her arms twisted. One man in his 60s had his surgical mask forcibly taken while he was sitting and recording Kidoutai’s actions, while another man in his 60s reported that Kidoutai members had broken his walking stick, and a woman in her 60s reported that she had been verbally assaulted on several occasions (Okinawa Times Plus 2017a). A woman in her 30s mentioned that she felt uncomfortable for always being removed by male Kidoutai members. A woman in her 70s was injured in her lower back when she was forcibly removed from her sitting-in position. When they were removed from the sit-in site, over 80 percent, or 176 persons, were forcibly kept in a closed space. They were repeatedly removed from the sit-in site, one to four times daily, between ten minutes to one hour per time. One respondent stated that they had been kept under the direct sun very close to Kidoutai vehicles with exhausts running, making them dizzy (Okinawa Times Plus 2017b). A second survey, conducted several months later also at Henoko, produced similar responses, with one respondent stating they suffered from severe bruises every day. 76 percent responded that they had been taken to the space surrounded by police vehicles and police personnel at least once. A number of them indicated that they were kept there for around one hour while construction trucks entered the base. While they were kept in the closed space, they were not given water, despite their request (Okinawa Times Plus 2017a). There has been repeated official action against three protesters in particular: Hiroji Yamashiro, Hiroshi Inaba and Atsuhiro Soeda. Yamashiro has been arrested for the obstruction of official duties, assault and destruction of property (cutting barbed wire). Yamashiro and others have also been arrested for obstruction, on the basis that they stacked a large number of concrete blocks blocking the gate of the new site at Henoko from 28 to 30 January 2016. They also allegedly stood in front of vehicles to obstruct construction work (Ryukyu Shimpo 2016b). The necessity of arrest is questionable, given that they had stacked blocks in front of the police, and that the arrest was made ten months after the incident (Ryukyu Shimpo 2016b).

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On 20 March 2018, a spokesperson of the National Police Agency stated that 71 people had been arrested in relation to the series of demonstrations against US military bases since 2015, including 27 cases of obstruction of official duties, 17 for obstructing a public highway (Buzz News – BN Politics 2018). The UN Special Rapporteur on Freedom of Expression has, on several occasions, expressed concern over the situation. He reported receiving of credible reports of excessive use of force and multiple arrests, and expressed his special concern about reports on the use of force against journalists recording the protests. He was concerned about the continuing restrictions on protests and expression in Okinawa, and further about the ‘availability of space for dissent and access to information’ regarding the situation in Okinawa (UNGA 2016a: para. 59). In October 2016, he also expressed a special concern regarding the arrest and lengthy pre-trial detention of Yamashiro, who had at that point already been detained for five months. The Special Rapporteur considered the length of the detention disproportionate to Yamashiro’s actions, and stated that government action could have a chilling effect on expression, in particular public protest and dissent (UNHRC 2017: paras 59–60). Yamashiro was eventually released from pre-trial detention in March 2017. Finally, there were two widely publicised incidents in Takae where Kidoutai officers dispatched from Osaka were recorded using racist language towards Okinawan protesters. One was caught calling a protester a dojin – a derogatory term meaning ‘savage’ or ‘barbarian’, often used towards persons from Okinawa. On the same day, another Kidoutai officer called a protester shinajin, a derogatory term for persons with Chinese origin. The Okinawa Prefectural Council made an official complaint for these insulting remarks, and, faced with public outrage, the Osaka police announced that the two officers had been subject to disciplinary action (Sankei West 2016). However, the police also denied there had been any discriminatory intent on the part of the officers (Sankei West 2016), and the Governor of Osaka took the opportunity to praise the dedication and hard work of the police in Okinawa (Mainichi Shimbun 2016b).

3 Conclusion The actions of the Kidoutai and the Coast Guard in response to a series of protests at Takae and Henoko, largely consisted of sit-in protests, raises several human rights issues. There appears to be a general pattern of Kidoutai forcibly removing peaceful sit-in protesters, at times resulting in violence and injuries. The first issue is that the response is a general removal of protesters instead of individual removal of any violent protesters. There appears to be no necessity and no proportionality test in these actions. In general, there are no reports of protesters threatening lives or safety. This is also apparent from the fact that Kidoutai members are not even wearing protective gears in controlling the protesters. The assessment of the actual force used in the forcible removal of protesters is mixed. On the one hand, the level of force is to a certain extent controlled. Nevertheless, the apparent pattern of forcible removal of protesters in response to

50 Ai Kihara-Hunt a seemingly peaceful sit-in is certainly a concern, and in the process of forcible removal, injuries have been caused. The derogatory remarks against protesters by Kidoutai officers may indicate a lack of understanding and attitude of at least some of them, and the government’s response to it appears to be insufficient. The series of arrests and the lengthy detention of Yamashiro may bring about a chilling effect on the freedoms of assembly and of expression. The apparent prevention of reporting on these protests, as shown in examples, as well as the reported recording of protesters’ faces and names with a possible effect of intimidation fuels this concern. Some additional issues can be raised. The right to freedom of movement of protesters, journalists and the general population, including people or journalists who were heading to the protest, is a concern. Yamashiro has been denied meaningful access to legal representation, as well as to his family.14 In addition, possible discriminatory treatment by the authorities, directly and indirectly, of the protesters and potentially the people of Okinawa is also apparent. In conclusion, law enforcement’s response to protests at Takae and Henoko construction sites raises multiple issues under human rights, in particular the rights to freedom of assembly and to expression, freedom of movement and the right to privacy. Related arrests and detention also need further examination on the potentially arbitrary nature, including the case of Yamashiro. In addition, the Japanese government may need to take serious and tangible action to eliminate discrimination within its security forces, and beyond.

Notes 1 Okinawa’s land is 0.6 percent of Japan’s land (McCormack 2015; UNGA 2015). 2 An ‘assembly’, generally understood, is an intentional and temporary gathering in a private or public space for a specific purpose, and can take the form of demonstrations, meetings, strikes, processions, rallies or sit-ins with the purpose of voicing grievances and aspirations or facilitating celebrations. (UNGA 2012: para. 24). 3 ‘While an assembly is defined as a temporary gathering, this may include long-term demonstrations, including extended sit-ins and “occupy”-style manifestations’ (UNGA 2016a: para. 10). 4 This is because they preclude consideration of the specific circumstances of each assembly (UNGA 2013: para. 63; UNGA 2016a: para. 30). 5 And to the right to privacy (UNGA 2016a: para. 76). 6 ‘If any restriction is imposed there should be an option for organizers to seek judicial review and, where relevant, administrative review, that is prompt, competent, independent and impartial’ (UNGA 2016b: Principle 3). 7 A/HRC/23/39, para.50; OSCE, Guidelines, para.30 (UNGA 2016a: para. 18). 8 Everyone – whether a participant, monitor or observer – shall enjoy the right to record an assembly. 9 This is except pursuant to a warrant from a judge for probative purposes (UNGA 2016a: para. 72d). 10 Special Rapporteurs added precaution to this list of principles. The principle of precaution requires that all feasible steps be taken in planning and the conducting of the

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operation to avoid the use of force, and where it cannot be avoided, to keep the harmful consequences to the minimum (UNGA 2016b). This is linked to the need for effective communication based on trust (UNGA 2016a: para. 39). Another example is when an assembly incites discrimination, hostility or violence (UNGA 2016a: para. 62). Detainees must be treated in a humane manner and with respect for their dignity, and shall not be subjected to torture or cruel, inhuman or degrading treatment or punishment (UNGA 2016b: Principle 4). Mr. Yamashiro had been hospitalised for level 3 follicular lymphoma (Heianna 2017).

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52 Ai Kihara-Hunt ICCPR [International Covenant on Civil and Political Rights]: 1966, United Nations, Treaty Series, vol. 999, 16 December, p. 171. Iho- Sosho- no Kai 1 [Association of Lawsuit on Illegality]: >n.d., Jumin Kansa Seikyu- ni kansuru Shiryo- [Materials on residents’ audit request], https://aichi-okinawa-sosho.jimdo.com/裁判 資料/%EF%BC%92-住民監査請求に関する文書-資料/, accessed 28 June 2018. Japan Times: 2015, ‘Injuries of Okinawa Anti-Base Protesters – “Laughable” Says US Military Spokesperson’, 9 February 2015, www.japantimes.co.jp/community/2015/ 02/09/issues/injuries-okinawa-anti-base-protesters-laughable-says-u-s-military-spokesman/ #.V8OTC62T7nc, accessed 30 June 2017. Mainichi Shimbun: 2016a, Futemma Isetsu: ‘Kichi No’ Uttae 2 Nen – Henoko no Suwarikomi’ [Relocation of Futemma: ‘No Base’ 2 years of protests – sit-in in Henoko], 6 July 2016, http://mainichi.jp/articles/20160706/k00/00e/040/236000c, accessed 30 November 2017. Mainichi Shimbun: 2016b, Okinawa Helipad: ‘Dojin’ Hatsugen Kidoutai-in ni ‘ShucchoGokuro--sama’ [Okinawa Helipad: words of appreciation towards the officer who called a protester ‘Dojin’], 20 October 2016, https://mainichi.jp/articles/20161020/k00/ 00m/040/136000c, accessed 30 June 2018. McCormack, Gavan: 2015, ‘Legal flaws in government’s case on Henoko’, Japan Times, www.japantimes.co.jp/opinion/2015/07/17/commentary/japan-commentary/lega l-flaws-governments-case-henoko/#.Wm0kO2cUmM9, accessed 20 November 2017. Morita, Saori: 2015, ‘Okinawa no Hitsu- na Sakebi ni Mimi wo Katamukete’ Henoko de Kougi Okonau Yoshida Shigeru Bokushi ga Uttae [‘Listen to the Scream of Okinawa’, appeals Priest Yoshida, protesting against Henoko Base], Christian Today, 11 June 2015, www.christiantoday.co.jp/articles/16273/20150611/ywca-okinawa-day-henokoyoshida-shigeru.htm, accessed 28 July 2017. OHCHR [Office of the High Commissioner for Human Rights]: 2002, Professional Training Series No. 5/Add.2, Human Rights and Law Enforcement – A Trainer’s Guide on Human Rights for the Police, HR/P/PT/5/Add.2. Okinawa Koza: 2015, Shima-gurumi Kaigi in Kanagawa ni 260-nin! [260 people gathered in Kanagawa for Okinawa!], 26 August 2015, https://okinawakoza.at.webry.info/ 201508/article_3.html, accessed 27 November 2017. Okinawa Times Plus: 2016, Kurumaisu 87-sai Josei ‘Kizu Fukaku Niku Mieta’ Takae no Kyosei Haijo de 5 Hari Nuu Kega [87-year old lady on wheelchair, ‘deep cut, could see flesh’ – injury of five stitches in the forceful removal at Takae], www.okinawatimes.co. jp/articles/-/58718, accessed 30 July 2018. Okinawa Times Plus: 2017a, ‘Kidoutai ga Bouryoku’ 66% Uttae – Kyousei Haijo de Kansetsu Waza: Henoko Kougi 8 Wari wa 60–70-dai [66% complains violence by Kidoutai, hurts joints in forcible removal, 80% of protesters at Henoko are in their 60s and 70s], 30 November 2017, www.okinawatimes.co.jp/articles/-/177342?utm_source=yahoo& utm_medium=http&utm_campaign=link_back&utm_content=related, accessed 23 March 2018. Okinawa Times Plus: 2017b, Ude wo Hineru, Nejiru, Tsukamu…‘Kidoutai kara Bouryoku’ 149-nin Shimin Kyousei Haijoji ni Higai: Henoko Anke-to [Arm twisted and grabbed…‘Violence by Kidoutai’, says 149 citizens, hurt in the process of forcible removal, Henoko questionnaire], 5 August 2017, www.okinawatimes.co.jp/articles/-/123549, accessed 23 March 2018. OSCE/ODIHR [Organization for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights]: 2010, Guidelines on Freedom of Peaceful Assembly, 2nd edn.

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54 Ai Kihara-Hunt UNGA [United Nations General Assembly]: 2014, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai, UN Doc. A/ HRC/26/29, 14 April 2014 UNGA [United Nations General Assembly]: 2015, Joint Written Statement Submitted by the Shimin Gaikou Centre (Citizens’ Diplomatic Centre for the Rights of Indigenous Peoples), International Movement Against All Forms of Discrimination and Racism (IMADR), nongovernmental organizations in special consultative status, UN Doc. A/ HRC/30/NGO/92, 7 September 2015. UNGA [United Nations General Assembly]: 2016a, Joint report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, 4 February 2016, UN Doc. A/HRC/31/66. UNGA [United Nations General Assembly]: 2016b, 10 Principles for the Proper Management of Assemblies – Implementation Checklist, September 2016, http://freeassembly. net/wp-content/uploads/2016/09/UNSR-Implementation-Checklist-for-ManagingAssemblies.pdf, accessed 20 June 2018. UNHRC [United Nations Human Rights Council]: 2017, Report of the Special Rapporteur on the Promotion and Protection of the Right To Freedom of Opinion And Expression on His Mission to Japan, UN Doc. A/HRC/35/22/Add.1, 29 May 2017.

5

Women’s empowerment and gender equality in Japan Fumie Saito

Despite the Government’s efforts towards greater gender equality and the Prime Minister’s new initiative towards women’s economic empowerment, much work remains to be done in achieving gender equality in Japanese society. Japan’s ranking in the Gender Gap Index by the World Economic Forum has been steadily dropping over the years, and in 2017 it ranked 114th out of 144 – an all-time low. A question often asked is why a country like Japan, which has enjoyed significant economic development, has failed to significantly advance gender equality? Why is gender equality advancing at such a glacial speed in Japan? Japan advanced gender equality policies in the 1990s, influenced by important international conferences at the time, particularly the Beijing Conference in 1995. However, in the mid-2000s, a backlash against gender equality hit Japan, and that slowed down some of its progress. Since then, gender equality has stagnated. In the 2010s, Prime Minister Abe introduced the women’s economic empowerment initiative, creating ‘the society where women shine,’ in other words called ‘womenomics.’ The women’s agenda became a top priority of the Government, and it seemed a path towards gender equality would be back on track. However, the Government’s initiative was aimed at advancing the economy rather than improving gender equality or promoting women’s rights. Abe’s almost exclusive focus on women’s economic empowerment has derailed a path towards gender equality and has, instead, reinforced structural discrimination against women. The gender gap has not narrowed; rather it has expanded since the initiative was announced. With the recent increase in support of more conservative values among the general public in Japan, the advancement of gender equality is once again at risk of not only stagnating but indeed, retreating. This chapter first looks at the recent historical background of Japan’s gender equality initiatives, in order to understand the evolution of policy development which lacks a human rights-based approach. It then analyses the following issues as examples of the progress and retro-progress of women’s issues: women’s representation in politics and in the workplace, social systems that impede women’s advancement in employment, violence against women and girls, and sexual and reproductive health and rights. This chapter concludes by recommending putting more focus on women’s rights in implementing Japan’s women’s empowerment and gender equality policies.

56 Fumie Saito

1 Recent historical background of Japan’s gender equality The ratification of the Convention on Elimination of Discrimination against Women (CEDAW) in 1985, together with subsequent international conferences that focused on women’s rights, shaped the Japanese gender equality landscape of the 1990s. CEDAW brought changes to three discriminatory practices in Japan: 1. Revision of the Nationality Act; under the old Act, a child of a Japanese mother and a foreign father could not automatically obtain Japanese citizenship, as opposed to a child of a Japanese father and a foreign mother – this was changed to allow for the former; 2. Mandating that the subject of home economics be mandatory for both boys and girls in high school; as it used to be mandatory only for girls, it had been one of the major targets of the women’s movement since 1970, due to the fact that it reinforced stereotypical gender roles; and 3. Passage of the Equal Employment Opportunity Law to protect women from discrimination, as the Labour Standard Law lacked a discrimination clause based on sex. (Yamashita 2009: 16–17) In the 1990s, a series of international conferences, especially the Fourth World Conference on Women in Beijing (1995) where the Beijing Platform for Action was adopted, transformed not only the international community’s but also Japan’s gender equality policies. At the Beijing Conference, some 5,000 Japanese women and men, who were gender experts, scholars and local activists, attended the parallel NGO forum, and when they returned to Japan, they were actively involved in promoting gender equality at both national and local levels. The enthusiasm around gender equality culminated in Japan setting a trend for gender equality policies, beginning in 1996. When a ruling coalition was formed among the Liberal Democratic Party (LDP), the Social Democratic Party and the New Party Sakigake, with pressure from female National Diet (Diet) members of the latter two parties, the promotion of gender equality was agreed to as one of the policy priorities of the coalition government. A foundation for Japanese gender equality policies was also established that year. The first expert report, a ‘Vision of Gender Equality,’ was submitted to the Prime Minister by the Council for Gender Equality. The Vision, subtitled ‘creating new values for the 21st century,’ incorporated the outcomes of the Beijing Conference and proposed a ‘revision of systems and customs which might lead to gender-related prejudice’ It also recommended a set of progressive gender policies (Kashima 2017: 83–84). At the end of 1996, the Government formed a ‘National Plan for Gender Equality toward year 2000,’ which was developed from the Vision and became a foundation for the current basic plan for gender equality. The ruling coalition’s policy agreement and the introduction of the national plan were driven by the momentum towards achievement of gender equality following the ratification of CEDAW and the adoption of the Beijing Platform of Action. The enthusiasm was also

Women’s empowerment and gender equality 57 reflected in then Prime Minister Ryutaro Hashimoto’s statement later that year that gender equality was one of the most important issues for the Government (Naikaku-fu). In 1999, the Basic Act for Gender Equal Society submitted by the Government passed the Diet with unanimous support. Women Diet members across parties pushed for the bill. It was during this time that women Diet members actively collaborated to study, discuss and introduce non-partisan bills regarding women’s and children’s issues. During the following few years, numerous pieces of non-partisan legislation on the protection of women and children were initiated by some Diet members, including the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, the Protection of Children (1999), the AntiStalking Act (2000), the Act on Child Abuse Prevention (2000) and the Act on the Prevention of Spousal Violence and the Protection of Victims law (2001). This was a time when civil society worked closely with Diet members on legislation, and many bills were even initiated by civil society. Around the same time, the national machinery (the coordinating and implementing body) for gender equality was strengthened. As part of the Government’s reforms in 2001, the Gender Equality Bureau was set up as a new secretariat for gender equality under the newly established Cabinet Office. With strong support from some Diet members and the strengthened secretariat, it appeared that steady progress regarding gender equality was forthcoming. However, after a brief flourishing of gender-related legislation, a backlash hit Japan. Those who opposed gender equality advanced arguments based on misconceptions of gender equality. They especially targeted school education, alleging that the proponents of gender equality were trying to eliminate gender differences and promote a ‘gender-free’ society, where girls and boys would be forced to use mixed-sex changing rooms and toilets (Kashima 2017: 110–111). The Gender Equality Bureau became less proactive, as it was forced to adopt a defensive stance against the backlash. The momentum towards gender equality throughout the late 1990s was significantly toned down during the backlash period of the mid-2000s. However, in fact, signs of backlash were already apparent in the late 1990s. It was in 1996 that the Legislative Council of the Ministry of Justice reported to the State Minister of Justice regarding suggested civil code revisions, including allowing for spouses to have separate surnames. After being submitted by the Legislative Council, a proposed bill is usually submitted to the Diet by the Government. However, many members of the most powerful party, the LDP, opposed the bill, making spurious accusations such as ‘having separate surnames destroys traditional values of the family’ or ‘their children would be bullied in school because of parents having different family names.’ The LDP was unable to obtain internal consensus, and the bill was abandoned. Further evidence of the backlash can be seen in a bill introduced in 1999 that contained measures against the declining birth rate. This bill, which became law in 2003, as well as numerous statements by high ranking LDP politicians, contributed to the narrative that

58 Fumie Saito women had a responsibility to society to ‘produce’ children, and women who failed to fulfil that responsibility were deserving of criticism. The interventions regarding individual choices pertaining to marriage and having children were completely against the international trends created by the 1994 International Conference on Population and Development in Cairo and the Beijing Conference. They were also contrary to the momentum towards gender equality in Japan around that time. How can we explain this contradiction? A possible explanation is that gender equality, as part of basic human rights, had not taken root in Japan. Gender equality policies progressed when there was strong international pressure or pressure from women policy makers, but the momentum stagnated quickly due to the concept of gender equality being an uncertain notion in Japan. The weakness of Japan’s approach towards gender equality is evident in the statement of Prime Minister Abe at the 2013 UN General Assembly. His strong commitment ‘to create a society in which women shine’ (Cabinet Secretariat 2013) did not include a commitment to gender equality and the promotion of women’s rights. Indeed, Abe has never made a commitment to advancing gender equality. It would be a challenge for the Japanese Government to attempt to promote women’s empowerment without advancing gender equality. The lack of a rights-based approach has resulted in Japanese gender equality policies becoming fragmented, and Japan has yet to make the required changes in order to catch up with the progress of gender equality in other countries.

2 Women’s participation in public life The low representation of women in politics and business is the major contributor to Japan’s low ranking in the Gender Gap Index. In 2003, the Government introduced a target, which was called ‘30% by 2020’ aimed at 30 percent representation in all fields by 2020. However, the ratio of women in the Diet is far from the targeted number that was set 15 years ago. The 2017 General Election sent 47 women to the House of Representatives. This comprises 10.1 percent of the number of representatives and is the second highest number in the history of Japan. However, even this percentage of women representatives within the Diet is extremely low compared to the international standard. According to the Inter-Parliamentary Union (IPU), Japan ranked 157th out of 193 countries as of 1 December 2017. In the House of Councillors, women make up 20.7 percent, 50 out of 242 members. Together, women comprise 13.7 percent in the Diet (IPU 2017). At the local level, the number of women representatives used to be much lower than the national level, but it has gradually increased, and they now comprise 12.8 percent of the total at the municipal level. However, the number of women in leadership positions among local autonomies and assemblies is still low, and over 30 percent of town and village councils do not have any women representatives at all (Naikaku-fu 2017a). A bill promoting gender equality in politics was submitted to the Diet in 2017 and was expected to pass with unanimous support. However, due to the sudden

Women’s empowerment and gender equality 59 dissolution of the House of Representatives, the bill was scrapped. In any case, the bill itself merely requires political parties to make voluntary efforts to promote gender equality in terms of the number of candidates. It does not stipulate punishments for non-compliance or obligate parties to set a quota or elect an equal number of female and male Diet members. The CEDAW Committee has recommended Japan to introduce statutory quota systems, as an example of temporary special measures in accordance with Article 4, paragraph 1, which would contribute to the increase of women’s participation in political and public life (CEDAW 2016: paras 30 and 31). The Committee also recommended special measures be taken ‘to promote representation of women with disabilities, ethnic and other minority women such as Ainu, Buraku and Zainichi Korean women in decision making positions’ (para. 31), but such measures for minority women are being ignored in current discussions. Not enough women in politics also makes both the Diet and local assemblies extremely difficult places to work for women. According to the Alliance of Feminist Representatives’ survey, 52 percent of female local assembly members have experienced sexual harassment at least once in their jobs (Osumi 2015). Female politicians are frequently the target of sexist jeers or insults. As early as the late 1990s, a female local assembly member won a law suit against a male colleague who heckled her as a ‘tomboy’ at the assembly building. The sexist environment against women has continued to exist. Even during the assembly sessions, women politicians have been constantly jeered because of their sex. In the past, heckling was accepted as part of an assembly culture that stimulates debate, not as harassment. However, as more women assembly members push back against the heckling towards them, these heckling incidents are gradually seen as harassment cases. In a recent case in 2014, heckling towards a female member at the Tokyo Metropolitan Assembly drew widespread attention. During her speech on supporting women regarding pregnancy and giving birth, she was heckled with comments such as ‘Why don’t you get married?’ ‘Can’t you have children?’ These incidents of harassment result in a chilling effect on women in the assembly. Assembly members’ childbirth and child rearing are still not fully supported in national and local assemblies. Maternal leave for assembly women has been debated from time to time during the past 20 years, but elected officials have no legal right to maternal leave, and decisions on this are up to the discretion of each assembly. Even in the Diet, it was not until 2000 that the first maternity leave was allowed (Mainichi Japan 2017). Elected women often face unsympathetic reactions from their constituents for taking even a short leave after childbirth. They are often accused of neglecting their duties as elected officials. In 2017, a female city councillor in the city of Kumamoto drew intense criticism when she took her seven-month-old baby to the assembly. The city council refused to allow her to attend, alleging that the rules of procedure did not allow anyone except councillors or city officials to enter the assembly hall. Many people accused her of being selfish by bringing her baby and ‘disturbing’ the assembly. At the international level, the New Zealand Prime Minister announced her pregnancy in early 2018 and took a six-week maternity leave. During that time,

60 Fumie Saito the Deputy Prime Minister took over her work. In Norway, the first government minister took maternity leave as early as the early 1990s. This would not have happened without understanding from their colleagues and society regarding women as elected officials having children. Japan also needs a systematic change to make public places more women- and family-friendly environments.

3 Employment Positive action to increase women’s participation in the workplace was initiated in 2015. The Act on Promotion of Women’s Participation and Advancement in the Workplace obligates government agencies, local governments and private companies with more than 300 employees to disclose action plans that would increase gender equality, and data regarding women’s participation (Naikaku-fu 2017b). This is in line with the Abe Government’s ‘womenomics’ policies, and the Government has been making efforts to increase the number of women at the top management level in business. However, women’s participation in the workforce should not just aim at an increase in the number of women on corporate boards or at the management level; it must be accompanied by a changing corporate culture friendlier to workers (both women and men) and more supportive social systems for workers and their families. It was not until 1985 that women’s equal employment was legally guaranteed. The Equal Employment Opportunity Law (EEOL) resulted in a paradigm shift for companies, but the working environment has been slow to change. Even though the EEOL was passed, women are still expected to serve tea to male colleagues, receive fewer opportunities for job interviews, promotion and training, and often face sexual and/or maternity harassment. In fact, not only public space but also private space is far from women- and family-friendly. The Child Care and Family Care Leave Law permitted both women and men to take up to a year off (and, in special cases, up to two years) after childbirth. However, harassment cases for becoming pregnant and taking maternity leave are reportedly increasing. According to Ministry of Health, Labour and Welfare’s research in 2015, about 21.8 percent of regular employees and 48.7 percent of female temporary workers had experienced disadvantageous treatment, including dismissal, termination of their contracts and demotion for reasons of pregnancy. Even though the EEOL and the Child Care and Family Care Law prohibit these types of treatment, harassment cases are reported every year. In 2016 alone, 7,344 consultations over disadvantageous treatment and harassment for the reasons of pregnancy and childbirth were made at Prefectural Labour Bureaux. Sexual harassment cases in the workplace are also prevalent. There were as many sexual harassment cases reported as harassment cases due to pregnancy and childbirth (Kouseiroudou-shou 2017c: 3). The OECD highlights three factors hindering women’s participation in the labour market in Japan: childcare shortages, the tax and social security systems, and the culture of long working hours (OECD 2017: 1).

Women’s empowerment and gender equality 61 Access to childcare has been a major obstacle for women, restricting them from going back to work after childbirth. In 2016, a blog post condemning the country, ‘Screw you, Japan! (nihon shine)’ was posted by a mother who could not find a space at a licensed nursery school for her child. It drew much sympathy from other mothers and sparked public debate. Since 2009, over 20,000 children have been kept waiting for a space at recognised nursery schools (Kouseiroudou-shou 2017a). This means that, in general, the same number of either one of the parents – in most cases, women – cannot go back to work. Despite some official efforts, the childcare shortage continues to be a formidable obstacle for those who wish to continue to work. The Japanese taxation and social security systems give benefits to a household as long as the second earner – usually the woman – earns under a certain amount. If a second earner works full time, the household loses these benefits. Systems based on the male breadwinner model have been criticised on countless occasions in the context of tax and social reforms, but change has not been forthcoming. As for the culture of long working hours, little progress has been made to reduce hours. Approximately 17 percent of men in their 30s and 40s, who are fulltime employees, work more than 60 hours per week (Gender Equality Bureau 2017: 10–11). Recently, two cases of young women who died as a result of working excessively long hours drew media attention. Increasing women’s participation in the workforce should not mean that more women are incorporated into a vicious working style. As part of ‘womenomics,’ the Government announced the introduction of foreign workers to carry out housekeeping services in 2014. The policy is intended to support women’s participation in the workforce, but it reinforces stereotypical gender roles in the family, as housekeeping support workers are all women (Aoki 2014: 7). Moreover, this policy – and others introduced under the rubric of ‘womenomics’ – are problematic in that they target a select group of women while overlooking the situation of the majority of women workers (Schieder 2014: 53–58). In 2016, 55.9 percent of employed women worked as non-regular employees, dispatched from temp agencies and/or on fixed term contracts. Women’s average income is about 72 percent of that of men for female regular workers and about 50 percent for female short-time workers (Gender Equality Bureau 2017: 9). The income level of households led by single mothers is only one third of that of households with two parents. The 2015 survey shows that 82.9 percent of single mother households has difficulty in making ends meet (Kouseiroudou-shou 2017b: 54). Can single mothers afford to use these services? The Government’s women’s empowerment policy thus expands the economic gap between those who can afford to use this service and those who have high needs but cannot afford to use it. It is suggested that ‘this measure amplifies gender inequality as well as economic disparity’ (Aoki 2014: 1). The Government’s policy also expands the gap between those who use the services in developed countries and those who provide the services from developing countries. The introduction of foreign domestic workers is part of the ‘2014 Japan Revitalization Strategy.’ In the Strategy, the Government also proposed the

62 Fumie Saito expansion of the foreign technical intern training programme, which has been subject to extensive and long-standing criticism by human rights treaty bodies and international and domestic human rights NGOs (HRC 2014: para. 16; CERD 2014: para. 12). These initiatives may end up resulting in not only reinforcing the existing economic structure and corporate culture (Sato 2016: 25), but also expanding economic gaps and human rights concerns. These temporary measures also hide the real stumbling blocks for women’s participation in the workforce.

4 Violence against women Violence against women is being gradually recognised as a human rights violation that must be addressed. One of the achievements of the 2001 Prevention of Spouse Violence and Protection of Victims (DV) law is to stipulate measures in this direction. The DV law is a good example of women Diet members across different parties cooperating on legislation for the promotion of women’s rights. There were no special laws targeting violence against women and children until 2000. If a person was hit by her/his spouse, the person could only resort to laying a criminal charge of battery. The police were generally reluctant to intervene in ‘family matters,’ so it was difficult to charge abusers if the abuser was a spouse. She/he could also seek a restraining order based under the Civil Provisional Remedies Act; however, the Act does not include any punishments for non-compliance, so abusers often ignored the order even if it was imposed. The lack of legal protection drove those who worked at women’s shelters and lawyers to advocate for more effective DV legislation. The DV law would not have been realised without the collective, non-partisan efforts of women politicians in the Diet. A project team on violence against women was established, under the Research Committee on Society of Cooperative Way of Life in the House of Councillors in April 2000, and driven by the leadership of powerful female members in the Committee. The project team, comprised of one or two members from each party (mostly women), met once a week or every other week to discuss possible legislation. The determined project team members had influence not only on the eventual contents of the legislation but also over the technical and administrative staff in the House of Councillors, who actively assisted in passing the bill from behind the scenes. The Beijing follow-up Conference in 2000 also called for legislation on violence against women and thus further accelerated the process. After one year of intensive discussion amongst the project team, it finally became law in April 2001. It was the enduring efforts of these Diet members that made this legislation possible. Although the original DV law required much improvement, the law was revolutionary in creating a mechanism to protect victims of domestic violence, clarifying the responsibility of the national and local governments, and clearly identifying domestic violence as a criminal act and a violation of human rights that impedes gender equality (Kainou 2002: 17–18). Since the passage of the DV law, legislative initiatives and policy measures on violence against women have been driven by the activism of civil society including

Women’s empowerment and gender equality 63 victims of violence themselves. For the DV law, dedicated and vigorous lobbying activities by a national network of women’s shelters, along with lawyers and academics, influenced Diet members. Their lobbying actions and strategies were well organised, including the timely organisation of study sessions on domestic violence to educate the Diet members and the suggestion of specific wording on the bill to the Committee members. Since its establishment in 2001, the DV law has been revised three times to expand its scope and make it more accessible to victims. The network has initiated these revisions by taking on the ‘ownership’ of the DV law. The DV law is, indeed, nurtured by and owned by civil society. Lobbying by victims’ organisations has also led to the expansion of the definition and the penalty of the crime of rape in the criminal code, and a civil society campaign also pushed the Government to introduce measures in protecting women and girls who have been coerced into appearing in pornographic videos. They are the few positive aspects in the recent conservative political climate. However, despite the fact that more victims of sexual violence have started to speak out, this has not resulted in a large movement in Japan. The recent ‘#me too’ movement has not spread throughout Japan as it has in other countries. Overall, in cases of sexual violence and sexual harassment, it remains the tendency to blame the victim. In one recent case, a young woman journalist was raped by a prominent television broadcaster. Shortly after coming out publicly, the victim received numerous death threats, and eventually fled the country. Top political leaders and the Government also remain silent on ‘#me too’ and ‘times up,’ the recent world-wide anti-sexual violence movement.

5 Reproductive health and rights Historically, in many countries in the world, women’s sexual and reproductive health and rights have been subject to government discretion. Japan is not an exception. The total fertility rate in the country was 1.44, as of 2016. The declining birth rate is a serious problem for maintaining the population, especially given the ageing population and the lack of an open immigration policy in Japan. Following the International Conference on Population and Development (ICPD) in 1994, ‘reproductive health and rights’ were for the first time incorporated into the Japanese gender equality strategy; first in the Gender Equality Vision (1996) and second in the Plan for Gender Equality 2000 (1996). Nevertheless, there has been a constant battle as to whether ‘sexual and reproductive health and rights’ should be included in the national plan (which would mean concrete measures and budgets). In fact, the description of reproductive health and rights was greatly toned down in the Second Basic Plan for Gender Equality in 2005, and, amid the gender backlash, reproductive health and rights were mentioned only in the context of the international conference at that time (Kashima 2017: 154–155). Conservatives have always criticised ‘sexual and reproductive health and rights’ not only in the Basic Plan but also at the individual policy level. It is pointed out that the policy direction shifted towards birth incentive measures which allow for

64 Fumie Saito intervention concerning individual choices over marriage and having children, rather than protecting individual rights after the enactment of the ‘Basic Act for Measures to Cope with Society with Declining Birth-rate’ in 2003. This is in opposition to sexual and reproductive health and rights, which were enshrined in the ICPD (Tsuge 2016: 46). Intervention concerning marriage and reproduction is, in fact, a continuing strategy of the Government. In the 2013 Emergency Plan for a Breakthrough on the Crisis of Declining Birth-rate, the Government announced marriage, pregnancy and reproduction to be the three pillars aimed at reducing the declining birth rate (Naikaku-fu 2013: 2). In 2016, the Government organised a national forum for supporting an increase in the number of marriages, based on the national Strategy against Declining Birth-rate adopted in 2015. The Strategy removed the description of ‘reproductive health and rights,’ which was originally incorporated in its 2010 version. The fourth Basic Plan for Gender Equality (2015) restates the importance of reproductive health and rights for women; however, recent government policies do not seem to align with the national strategy. The recent trend in the Government has been to set aside the important principle of sexual and reproductive health and rights. Another important case concerned the Eugenic Protection Act (1948–1996). Under this Act, it is reported that 16,477 procedures of forced sterilisation and abortion were conducted. Over 68 percent of the victims were women (JNNC 2016: 61). At the ICPD in 1994, the fact that Japan still had a eugenic law shocked the international community. This fact was taken up by the international media, and eventually Japan was forced to change the Act (Yonezu 2015: 7). In 1998, the Human Rights Committee (HRC) recommended that the Japanese Government take the necessary legal steps for compensation to the victims of the Act (HRC 1998: para. 31). However, no steps towards compensation were made. After almost 20 years, at the 2016 CEDAW session, a group of women with disabilities went to Geneva and again raised this issue in front of the Committee members. The Committee issued a more detailed recommendation than the HRC to the Japanese Government, including the obligation for the State to offer victims access to legal remedies, compensation and rehabilitative services (para. 25). At first, the Government failed to take any action on this issue. The Government said that the practices were lawful under the Eugenic Protection Act, at that time, and it had no intention to compensate or apologise. In January 2018, a woman who was forced to have sterilisation under the Eugenic Protection Act filed a lawsuit against the Government. Her courageous act led to the Diet members forming caucuses in both the ruling party and opposition to tackle this issue. A non-partisan bill that includes an apology and compensation for the victims is set to be tabled in 2019.

6 Conclusion Japan still has a long way to go to catch up with other countries’ progress on gender equality. Legal and social systems are gradually changing, but the pace

Women’s empowerment and gender equality 65 remains too slow. A major factor contributing to the slow progress is policy direction, or the lack thereof. The current Government’s gender equality strategies focused on women’s empowerment are meant to contribute mainly to economic revitalisation, not to gender equality or women’s rights. The beneficiaries of this approach are limited to an economically privileged group among women, whereas the majority of women are being left behind. Without the strong support and foundation of a rights-based approach, Japan may easily reverse the already glacial progress of gender equality. In 2012, the ruling party, the LDP, announced its intention to introduce a new Constitution. One of the targets of the revision is Article 24 of the current Constitution, which stipulates matrimonial equality and individual dignity in marriage and the family. The new LDP version added a clause that ‘a family’ is respected as the ‘natural and basic unit of society.’ The reinforcement of the function of a family allows for the possibility of state institutions intervening in an institution that should be solely based on individual choices. The revised clause can also be read to deny diverse types of families and lifestyles. The proposed Article 24, together with the Government’s recent policies towards the declining birth rate and towards women’s rights, especially sexual and reproductive rights, raise questions about the Government’s women’s empowerment policies. One of the milestones for measuring the achievement of gender equality in Japan would be legal reform to allow spouses to maintain separate surnames. The CEDAW Committee has continued to make recommendations on this issue to the Japanese Government. The restriction on surname choices is an equality issue and a women’s rights issue, as it affects women’s careers as well as their lives on a daily basis. Issues relating to women’s rights and/or gender equality are often treated as being opposed to tradition or diminished as being individual issues; however, it should not be treated as an ideological framework. The surname case can be seen as a litmus test of whether Japanese society is truly heading on a path towards gender equality. In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development, which includes 17 Sustainable Development Goals (SDGs). Unlike the Millennium Development Goals, developed countries like Japan are also responsible for achieving the SDGs. Goal 5 sets out women’s empowerment and gender equality. Both women’s empowerment and gender equality cannot be mutually exclusive, and they cannot be achieved without the fulfilment of women’s rights. The detachment of women’s empowerment from gender equality and women’s rights is a key factor for Japan’s stagnating results in the Gender Gap Index. Japan has to reset its gender equality strategies, putting women’s rights at the centre. Otherwise, Japan will never catch up with other countries’ progress in this arena.

References Aoki, Chikako: 2014, Gaikokujin Kaji Roudousha no Ukeire ni kansuru Gender Seisaku toshiteno Kadai [Gender Policy on Migrant Domestic Workers] Nichidai Seikatsu-ka

66 Fumie Saito Ken-hou (Report of the Research Institute of Sciences for Living College of International Relations, Nihon University) 37; 3–12. Cabinet Secretariat: 2013, ‘Address by Prime Minister Shinzo Abe, at the Sixty-Eighth Session of the General Assembly of The United Nations’, 26 September. CEDAW [Committee on the Elimination of Discrimination against Women]: 2016, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Japan, 2 March, CEDAW/C/JPN/CO/7–8. CERD [Committee on the Elimination of Racial Discrimination]: 2014, Concluding Observations on the Combined Seventh to Ninth Periodic Reports of Japan, 26 September, CERD/C/JPN/CO/7–9. Gender Equality Bureau (Cabinet Office): 2017, ‘Women and men in Japan’. HRC [Human Rights Committee]: 1998, Concluding Observations of the Human Rights Committee, 30 October, CCPR/C/JPN/CO/5. HRC [Human Rights Committee]: 2014, Concluding Observations on the Sixth Periodic Report of Japan, 20 August, CCPR/C/JPN/CO/6. IPU [Inter-Parliamentary Union]: 2017, ‘Women in national parliaments’, Retrieved on 7 January 2018 from: http://archive.ipu.org/wmn-e/classif.htm JNNC [Japan NGO Network for CEDAW]: 2016, ‘NGO Joint Report’ (Japan) with regard to the consideration of the combined seventh and eight periodic reports of Japan for the sixty-third session of the Committee on the Elimination of Discrimination against Women, 10 January. Kainou, Tamie: 2002, Domestic Violence Boushi-hou to Josei ni Taisuru Bouryoku Boushi Heno Kadai [Issues regarding the Domestic Violence Prevention Law and measures to prevent violence against women] Masse Osaka kenkyu kiyo, dai 5 gou. [Masse Osaka Research Bulletin, vol.5] Koeki zaidan-houjin Osaka-fu shichouson shinkou kyoukai/ Osaka shichouson shokuin kenshu kenkyu’u center [Masse Osaka] Kashima, Takashi: 2017, Danjo Byodou wa Shinka shitaka: Danjo Kyodosankaku Kihon Keikaku no Sakutei, Sesaku no Kanshi kara [“Has gender equality advanced?” From the formulation of basic plan for gender equality and the review of its policies], Shinyo-sha. Kouseiroudou-shou [Ministry of Health, Labour and Welfare]: 2017a, Hoikusho kanren jokyo torimatome [A summary of nursery school related conditions], 1 April. Kouseiroudou-shou [Ministry of Health, Labour and Welfare]: 2017b, Seihei 28 nen Kokumin Seikatsu Kiso Chousa no Gaikyou [Comprehensive Survey of Living Conditions 2016]. Kouseiroudou-shou [Ministry of Health, Labour and Welfare]: 2017c, Heisei 28 nendo Todoufuken roudoukyoku koyou kankyou kintoubu (shitsu) deno hou shikou joukyou [2016 Law enforcement situation at Employment Environment and Equal Employment Departments (Divisions), Prefectural Labour Bureaus]. Mainichi Japan: 2017, ‘Female lawmakers in Japan still disparaged over pregnancy, maternity leave’, 28 July. Retrieved on 7 January 2018 from: https://mainichi.jp/english/ articles/20170728/p2a/00m/0na/002000c Naikaku-fu: 2013, Shoshika Kiki Toppa no tameno Kinkyu Tiasku [Emergency Plan for Breakthrough on the Crisis of Declining Birth Rate] 7 June. Naikaku-fu [Cabinet Office]: 2017a, Joseino seiji sankaku map 2017 [A Map on Women’s Participation in Politics 2017]. Naikaku-fu [Cabinet Office]: 2017b, Joujou kigyo ni okeru josei yakuin no joukyou [The status of women executives in listed companies] 27 November. OECD [Organization for Economic Co-operation and Development]: 2017, ‘Japan Policy Brief’, April OECD Better Policies Series. Employment: IMPROVING THE LABOUR MARKET OUTCOMES OF WOMEN.

Women’s empowerment and gender equality 67 Osawa, Mari: 2010, ‘Saibunpai no gender bias ga hinkon wo fukamete iru’ [Gender-biased Redistribution Aggravates Poverty in Japan] Trends in the Sciences, Vol 15 Issue 9, at 52–54. Osumi, Megdalena: 2015, ‘Over 50% of assembly women in Japan have been sexually harassed, survey suggests’, The Japan Times, 13 August. Retrieved on 7 January 2018 from: www.japa ntimes.co.jp/news/2015/08/13/national/politics-diplomacy/50-assemblywomen-japansexually-harassed-survey-suggests/#.WjtWQWiWaUk Sato, Fumika: 2016, Gunjika ni torikomareru “josei katsuyaku” [Women’s empowerment captured in militarization] Onna tachi no 21 seiki [Women’s 21st Century] no.86, 2016.6, Asia-Japan Women’s Resource Center [AJWRC], at 22–25. Schieder, Chelsea Szendi: 2014, ‘Womenomics vs. Women: Neoliberal Cooptation of Feminism in Japan’, Meiji Journal of Political Science and Economics, Volume 3, at 53–60. Tsuge, Azumi: 2016, ‘An overview of two decades of women’s health policies in Japan: from the introduction of ‘reproductive health and rights’ to policies addressing the declining birthrate’, Japanese Journal of International Society for Gender Studies, Vol. 14, at 32–52. Yamashita, Yasuko: 2009, Joseisabetsujoyaku to Nippon [CEDAW and Japan], Bunkyo Gakuin Daigaku Gaikokugo-gakubu Bunkyo Gakuin Tanki Daigaku Kiyo Dai 9 Go. (Bunkyo Gakuin University, Faculty of Foreign Studies, & Bunkyo Gakuin Junior College, Bulletin Vol. 9) at 13–33. Yonezu, Tomoko: 2015, ‘The sexual and reproductive health and rights of women with disabilities’, CGS Newsletter 018, September. Center for Gender Studies, International Christian University.

6

Discrimination against women in the sphere of marriage and family life Ai Kihara-Hunt

Introduction Japan is a county with a large gender gap. Japan was ranked at the 114th place out of 144 countries in gender equality in 2017, dropping three places from the previous year (World Economic Forum 2017). The gender gap in Japan has been the subject of a large number of recommendations and concerns expressed by UN human rights mechanisms. These concern a variety of areas, from legal protection; national mechanisms to protect human rights; representation; employment; traditional gender roles; violence against women; trafficking and exploitation; ‘comfort women’; political and public life; education; health; economic and social benefits; disadvantaged women; and marital and family relations (CmEDAW 2016). This chapter will focus on discrimination in legislation – discrimination de jure and legislation with discriminatory effect – in the sphere of marriage and family life. The chapter will exclude other issues, such as domestic violence, marital rape, and more general sexual and other violence against women. It will also exclude discrimination related to sexual orientation, discrimination against children or any potential multiple discrimination that some women suffer additionally. More precisely, the chapter will address the following four issues: required age of marriage; the requirement for married couples to have the same family name; prohibition of re-marriage after divorce; and the assumption of paternity of a child born within 300 days after a divorce. Both the Committee on the Elimination of Discrimination against Women (CmEDAW) and the Human Rights Committee (HRC) have been recommending that the government repeal the first two legislations and to review the third one since the first review.1 The paternity issue is combined with the issue of prohibited period of re-marriage, as the rationale for the two is essentially the same. As shall be shown, what little progress that has been made in some of these areas has been extremely slow, and in many of these areas, remains non-existent. In human rights treaties, prohibition of discrimination against women is set out in all core treaties (ICCPR 1966: Articles 3, 26; UDHR 1948: Articles 2, 7; CEDAW 1979: Article 26; ICESCR 1966: Articles 2–3, 3; ICERD 1965: Article 2; CRC 1989: Article 2; CMW 1990: Article 7; CRPD 2007: Article 5).2 Article 3 of the International Covenant on Civil and Political Rights (ICCPR) requires

Discrimination against women 69 States to ensure the rights in the Covenant be enjoyed by men and women equally (ICCPR 1966: Article 3), and Article 26 provides equality of all before the law without discrimination (ICCPR 1966: Article 26). In relation to discrimination against women, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the central instrument.3 In the sphere of marriage and family life, Article 23 of the ICCPR and Article 16 of CEDAW set out the right to marry and to found a family.4 Prohibition of discrimination is so fundamental in international law that it is also enshrined in the United Nations (UN) Charter in its articles and, moreover, as a purpose of the UN (UN Charter 1945: Articles 1–3, 55c and 56, and Article 1–2), and as that fact indicates, the principle of non-discrimination is widely considered to be a customary part of international law, and general principle of international law.5 The requirement of prohibition of discrimination goes further than merely having the same text guaranteeing the same rights, or not distinguishing men and women in setting their rights. Discrimination is found in legislation and policies if there is a discriminatory effect. There may be indirect discrimination, when a law, policy, programme or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in practice on women because pre-existing inequalities are not addressed by the apparently neutral measure. (CmEDAW 2010: para. 16) In other words, States have obligation of results. States have obligation to abolish or amend discriminatory laws. Article 2 of both ICCPR and CEDAW set out State obligations in order to guarantee rights enshrined in the respective treaties. The obligation includes to take necessary steps to correct discriminatory legislation. General Comment on Article 2 of ICCPR clarified that ‘the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees’ (HRC 2004: para. 13). The General Recommendations on Article 2 of CEDAW are clear: the obligation of States parties to provide legal protection and to abolish or amend discriminatory laws and regulations as part of the policy of eliminating discrimination against women…. States parties have an obligation to take steps to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. (CmEDAW 2010: para. 31) Japan abides by a dual system in the implementation of international law. Accordingly, the content of international treaties, including ICCPR and CEDAW, are not self-executing, nor has it a direct effect in the domestic sphere. This was reiterated in the ruling by Tokyo High Court in 2014 (CmEDAW 2016: para. 8).6

70 Ai Kihara-Hunt In any case, under this dual system, States have the obligation to align domestic legislation with treaty obligations: By ratifying the Convention or acceding to it, States parties undertake to incorporate the Convention into their domestic legal systems or to give it otherwise appropriate legal effect within their domestic legal orders in order to secure the enforceability of its provisions at the national level. (CmEDAW 2010: paras 24, 31) These amendments must be done ‘without delay’ (CEDAW 1979: Article 2), which indicate actions to be taken are of an ‘immediate nature’ (CmEDAW 2010: para. 29). In this relation, HRC expressed its concern that Japan needs to make further actions to comply.7

Required age of marriage Japan’s Civil Code is a product of 1896, with a major amendment in 1947 (Civil Code). Article 731 as amended sets the legal age of marriage at 16 for women and 18 for men (Civil Code 1896, as amended in 1947, Article 731). The rationale for this distinction, as explained in the late 19th century, was their perception that girls develop more quickly than boys.8 Of the four areas examined in this chapter, this distinction is the most blatant. For it to be in compliance with human rights, distinctions must be based on objective and reasonable grounds, and must be proportionate to the purpose pursued (HRC 2000b: paras 9.2, 9.3, 9.4, 9.5, 9.6, 10). CmEDAW has stated that: [s]ome countries provide for different ages for marriage for men and women. As such provisions assume incorrectly that women have a different rate of intellectual development from men, or that their stage of physical and intellectual development at marriage is immaterial, these provisions should be abolished. (CmEDAW 1994: para. 38) On difference on legal marital age between the two sexes, Article 16 of CEDAW requires States Parties to ‘take all appropriate measures to eliminate discrimination against women in relation to marriage and family relations’, in particular to ensure ‘the same right to enter into marriage’ (CEDAW 1979: Article 16–1a). Similarly, Article 23 of ICCPR requires States to recognise the right of men and women of marriageable age to marry and to found a family, and to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage (ICCPR 1966: Articles 23–2 and 23–4). HRC singles out that a factor that determines the enjoyment of the right ‘relates to the minimum age for marriage. That age should be set by the State on the basis of equal criteria for men and women. These criteria should ensure women’s capacity to make an informed and uncoerced decision’ (HRC 2000a: para. 23).

Discrimination against women 71 CEDAW is explicit that ‘[t]he betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage’. For this purpose, the CmEDAW considers that the minimum age for marriage should be 18, in line with the definition of a child under the Convention on the Rights of the Child (CRC) and the Vienna Declaration (CmEDAW 1994: para. 36).9 This is considering the adverse effect of early marriage to women’s enjoyment of rights, as well as the capacity to assume responsibilities as marital partners. Consequently, the Committee considers that marriage should not be permitted before they have attained full maturity and capacity to act (CmEDAW 1994: para. 36). Not surprisingly, Japan’s Civil Code provision on marriageable age has been repeatedly criticised by HRC and CmEDAW. At the Committee’s review of Japan in 2003, the Committee urged Japan to repeal discriminatory provisions of the Civil Code, including the different minimum age for marriage set for men and women (UNGA 2003: paras 371–2). This was repeated in sessions in 2009 (CmEDAW 2009: paras 17–18) and in 2016 (CmEDAW 2016: paras 12a and 13a). The HRC has also raised this issue with Japan since 1998. The Committee was concerned about the discriminatory laws including the different age set for marriage, and called for repealing the law (HRC 1998: para 16). In 2008 (HRC 2008), HRC identified this as its primary concern and recommended Japan to make the marriable age the same for men and women.10 In 2014, this was repeated, and the Committee went further to connect this to the ‘stereotypes regarding the roles of women and men in the family and in society’ which are not to be ‘used to justify violations of women’s right to equality before the law’ (HRC 2014: para. 8). Furthermore, High Commissioner for Human Rights singled out this legislation as a priority for amendment in his letter to Japan in 2018.11 In the domestic sphere, this different marital age was subject to public debate for many years, especially amongst acknowledgement that there had been insufficient progress in amending the Civil Code.12 The Japanese Ministry of Justice has stated that the age was set because women were considered to physically and mentally mature earlier than men, and because there existed early marriage and giving birth (Ho-mu Sho- 1996). Nevertheless, there has been recognition of the need to amend the law since at least the late 1980s,13 and amendments have just recently been adopted that set the legal age of marriage for both sexes at 18. The change will enter into force on 1 April 2022 (Osaki 2018).

Requirement of same family name The discrimination contained in the requirement that a married couple must have a same family name is arguably less apparent compared to the issue of marriage age. Article 750 of the Civil Code requires a married couple to have the same family name (Civil Code 1896, as amended in 1947, Article 750), and selecting either the husband’s or the wife’s family name is a condition for registration of the marriage.14 CEDAW Article 16–1-g requires State Parties to particularly ensure ‘[t]he same personal rights as husband and wife, including the right to choose a family name’

72 Ai Kihara-Hunt (CEDAW 1979: Article 16–1-g). General Comment 19 also stresses ‘the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name should be safeguarded’ (HRC 1990: para. 7). Article 750 of the Civil Code requires a married couple to have the same family name, but it can be the husband who changes his family name to the wife’s. Therefore, on its face, this provision does not appear to directly discriminate against women. However, CmEDAW has stated: identical or neutral treatment of women and men might constitute discrimination against women if such treatment resulted in or had the effect of women being denied the exercise of a right because there was no recognition of the pre-existing gender-based disadvantage and inequality that women face. (CmEDAW 2010: para. 5) That requires States to: refrain from making laws, policies, regulations, …, administrative procedures, …, that directly or indirectly result in the denial of the equal enjoyment by women of their…rights. States are further obliged to take steps directly aimed at eliminating customary and all other practices that prejudice and perpetuate the notion of inferiority or superiority of either of the sexes, and of stereotyped roles for men and women. (CmEDAW 2010: para. 5) States are obliged to ‘take a wide variety of steps to ensure that women and men enjoy equal rights de jure and de facto’, and this entails ‘obligations of means or conduct and obligations of results’ (CmEDAW 2010: para. 5). It follows that States must ensure that ‘any laws, policies or actions that have the effect or result of generating discrimination are abolished’ (CmEDAW 2010: para. 35). With the cultural and social setting in Japan, the paternalistic family registration system, and persistent notions regarding the roles of women in the family and in the society,15 over 96 percent of married couples take the husband’s family name.16 In reality women have virtually no choice but to change their family names that they may have been using professionally, and face loss of their identity and significant disadvantages.17 In separate contexts, Japanese courts have acknowledged the fundamental importance of names for individual identity, and have found violations of the right to be respected as individuals (Article 13 of the Constitution) for incorrectly using others’ names or using them without permission (Tokyo Chisai 2011: 21), which means that the Court acknowledges someone being forced to change his or her family name as a possible infringement of his or her rights. In that case, the consideration shall be whether justification for such potential infringement is based on an objective and reasonable ground and is proportional to the purpose pursued (HRC 2000b: paras 9.2, 9.3, 9.4, 9.5, 9.6, 10). In that relation,

Discrimination against women 73 General Comment 28 by HRC sets out ‘[s]tates parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights’ (HRC 2000a: para. 5). CEDAW General Recommendation clarifies that ‘custom, tradition and failure to enforce these laws in reality contravene the Convention’ (CmEDAW 1994: para. 15). Another CEDAW General Recommendation is even clearer: each partner should have the right to choose his or her name, thereby preserving individuality and identity in the community and distinguishing that person from other members of society. When by law or custom a woman is obliged to change her name on marriage or at its dissolution, she is denied these rights. (CmEDAW 1994: para. 24; emphasis added). Jurisprudence and findings by human rights bodies on family names on marriage are informative. In Müller and Engelhard v. Namibia, the HRC found a violation of non-discrimination clause (Article 26) for having more stringent procedure for married couples who wish to choose the wife’s family name. In particular, it was held that: [i]n view of the importance of the principle of equality between men and women, the argument of a long-standing tradition cannot be maintained as a general justification for different treatment of men and women, which is contrary to the Covenant.18 In Burghartz v. Switzerland, the European Court of Human Rights found that legislation requiring women to change their family name at the time of marriage was a violation of the right to family life and requirement of non-discrimination (ECtHR 1994).19 CmEDAW has been clear in pointing out that Article 750 of the Japanese Civil Code infringes CEDAW Article 16–1-g. In 2003, the Committee urged Japan to repeal discriminatory provisions of the Civil Code, including the waiting period for re-marriage set only for women (see next section) (UNGA 2003: paras 371–2).20 This was repeated in sessions in 2009 (CmEDAW 2009: paras 17–18) and in 2016 (CmEDAW 2016, paras.12 and 13). HRC has raised this issue already in 1981 (HRC 1981: para. 64). The Committee was concerned about this discriminatory legislation, and called for repealing the law (HRC 1998: para. 16). This issue has been the subject of considerable public debate, even already in the period of the first amendment of the Code in 1947. There have also been several court cases that question the constitutionality of this requirement.21 Most recently, in 16 December 2015, the issue came once again before the Supreme Court (Saiko- Saibansyo 2015). The petitioners, a married couple, argued that Article 750 of the Civil Code was unconstitutional, specifically that it violated Article 13 on the right to be respected as individuals, because the right to be

74 Ai Kihara-Hunt respected as individuals enshrined in Article 13 includes the right not to be forced to change one’s family name. They also argued that the provision was against Article 14 on equality under the law because it created a situation where over 96 percent of couples choose to take the husband’s family name, causing disadvantages almost exclusively for women. Finally, they argued that Article 24 on dignity and equality in family life of the Constitution was also violated, the argument being that by making one party change his or her family name as a condition for marriage, the provision in essence violates the right to marry and therefore infringes people’s dignity (Tokyo Chisai 2011: 33–38). For not taking steps to amend or abolish the legislation, the petitioners claimed compensation from the State (Tokyo Chisai 2011: 1–2). The Supreme Court did take CmEDAW recommendations into consideration in its ruling, and also noted the circumstance that women change their family names in the vast majority of marriages. It further agreed that caution was necessary to ensure that the choice of family name was truly a free choice, and that working on removing negative influence of any potential discriminatory attitude or customs against women would be in accordance with Article 14–1 of the Constitution. However, the Court denied the argument that over 96 percent of couples entering marriage take the man’s family name was caused by the law itself, stating that, on the contrary, this was merely a result of consultations between the individuals entering marriage. It weighed the arguments against the established family systems in Japan, and ruled that family traditions are built deeply in the society, that the family is a natural and fundamental unit in society and, accordingly, that it is logical to require one single family name for that unit. The Court considered under Article 24 of the Constitution that there may be circumstances where the changing of one’s family name may result in a loss of identity, loss of reputation or a sense of honour. It also admitted that such disadvantages were experienced more by women than by men. In addition, the Court admitted that there may be couples who choose not to register their marriage because of the provision. Nevertheless, the Court found that such disadvantages can be reduced to a certain extent by women using their maiden names in their social life (Saiko- Saibansyo 2015: 9–10). This finding is regrettable, in particular because the Court limited its understanding of discrimination to de jure legalities, and made a regressive precedence of this issue. It is nonetheless significant that there were five dissenting opinions in this case, three of them by female judges (Saiko- Saibansyo 2015: 11–27). Judges Okabe, Sakurai and Onimaru considered that the legislation failed to reflect the significant changes in the role of women in society, and that the disadvantages caused by the loss of identity, in the economic sphere of women’s enjoyment of rights, and their right to marry meant the provision should be struck down (Saiko- Saibansyo 2015: 15–20). It is hoped that in the occasion that the Court is asked again about the constitutionality of the provision, it will take the rights of women more fully into account. In any case, the legislation can be amended without a court case stamping its

Discrimination against women 75 unconstitutionality. The legislature should move forward with the long-awaiting amendment to this requirement.

Prohibition of re-marriage The prohibition of re-marriage only for women has seen partial success for correcting discriminatory legislation. Until June 2016, according to Article 733 of the Civil Code, women were prohibited from marrying again for six months after divorce. The reasoning was to avoid conflict regarding paternity in case a child is born shortly after divorce (Saiko- Saibansyo 1995: 177–243). This provision appears to be a clear violation of CEDAW Article 16–1a’s requirement on State Parties to ensure ‘the same right to enter into marriage’, in the same way as different marital age for men and women (see the previous section). HRC General Comment 28 is explicit that an ‘aspect of the right to marry may be affected when States impose restrictions on remarriage by women that are not imposed on men’ (HRC 2000a: para. 24). At the CmEDAW’s review of Japan in 2003, the Committee urged Japan to repeal discriminatory provisions of the Civil Code, including the waiting period for re-marriage set only for women (UNGA 2003: paras 371–2).22 This was repeated in sessions in 2009 (CmEDAW 2009: paras 17–18) and in 2016 (CmEDAW 2016: paras 12–13). In 2008, HRC has raised this discriminatory legislation as one of its primary concerns, and called on Japan to amend the law and eliminate the prohibited period of re-marriage for women.23 In 2014, the Committee repeated its recommendation, and linked this discriminatory legislation to the ‘stereotypes regarding the roles of women and men in the family and in society’ which are not to be ‘used to justify violations of women’s right to equality before the law’ (HRC 2014: para. 8). The constitutionality of this provision was challenged at Japan’s Supreme Court in nine cases before December 2015. In all cases, the Supreme Court rejected the arguments of unconstitutionality (Satou n.d.: 55). For example, in the case in 1996, the Supreme Court stated that the restriction had reasonable grounds, and distinguishing treatment of individuals based on reasonable grounds was not contrary to the non-discrimination clause of the Constitution (Article 14–1). The Court also stated that the Article’s objective was to prevent any conflict regarding paternity (Saiko- Saibansyo 1995). However, the Supreme Court issued what was arguably a partial victory for women’s rights in a ground-breaking decision on 16 December 2015. In that case, the petitioners had argued that Article 733 of the Civil Code was against the equality clauses of the Constitution: Articles 14–1 and 24–2. They stated that it was discriminatory to force women to have a six-month break between marriages, that modern technology means that the prohibition is unnecessary for paternity determination of a child born soon after divorce, and that in any case, six months is unnecessarily lengthy for paternity determination. None of these arguments were particularly new, but in this case the Court, while upholding the constitutionality of the prohibition of re-marriage up to 100 days, ruled that any prohibition over 100 days was unconstitutional (Saiko- Saibansyo 2013).

76 Ai Kihara-Hunt This ruling overturned the High Court’s ruling, which upheld the avoidance of conflict in paternity determination as a logical rationale, and which stated that determining the specific length of any period where re-marriage was prohibited was the role of the legislature, not the court’s. The Supreme Court did acknowledge the social values that the legislation aims to protect, and supported the fundamental rationale for the prohibition. However, it reasoned that any direct distinction in legislation between men and women must be for legitimate reasons, and that the distinction must be proportionate to the aim pursued. In that consideration, the changing views of the society towards family needed to be taken into account, and the Court considered that there was a social demand for less limitation (Saiko- Saibansyo 2013: 14–15). In this case, the dissenting opinion of Judge Yamaura referred to ICCPR and CEDAW recommendations. He argued that it is not the matter of the period of time during which women are prohibited to re-enter into marriage, but rather the constitutionality of having such a period only for women that was in question. He found the ban of re-marriage as a whole unconstitutional, as it imposed harsh conditions on women. He went further and opined that the petitioners should receive compensation (Saiko- Saibansyo 2013: 31–41). On 1 June 2016, the Civil Code was amended to change the prohibited period of marriage from six months to 100 days. The new provisions also stipulated that this 100-day limitation could be waived in exceptional cases, with a doctor’s certificate proving that the woman is not pregnant (Act to Amend Part of the Civil Code 2016). As the dissenting opinion of Judge Yamaura indicated, shortening the period of prohibition is not sufficient for ensuring the equal enjoyment of the right to marry to family life. CmEDAW found that the 100-day prohibition is still discriminatory against women, as the prohibition is imposed only on women (CmEDAW 2016: para. 12b). It is regrettable that the Court did not address the discriminatory nature of distinction between men and women itself not sufficiently justified, and thus missed the opportunity to correct the thinking behind the law and to amend the legislation.

Assumption of paternity of a child born within 300 days after divorce A provision that was created largely for the same rationale as the prohibition of remarriage for women is mechanical registration of a child born within 300 days after divorce (see later for further discussion). Article 772–2 of the Civil Code states that ‘[a] child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage’.24 According to the provision, the child is therefore registered in the family registration of the assumed father. This assumption cannot be overturned without bringing the case to the Family Court,25 even where all parties – the woman, divorced husband and the biological father of the child – agree on paternity, or where DNA examination confirms paternity, or both. Even after the case is brought to the Family Court, as the

Discrimination against women 77 Court considers the biological paternity of a child separate from family registration, it can rule that a child shall not be registered under his or her biological father.26 The reasoning behind the automatic assumption of the former husband’s paternity of a child was to minimise potential disputes over the paternity of any child (Saiko- Saibansyo 1995: 243). This system of paternity assumption has traditionally been understood to aim at protecting harmony in the family. It is only when the husband was physically away from his wife for a long period, for example in the military and at a battlefield, residing in a foreign country, imprisonment or de facto divorce, that this assumption can be overturned.27 Even in those cases, decisions are made at the discretion of the Family Court. This automatic assumption of paternity causes disadvantages for both women and children. The child is registered automatically in the family registration of the divorced husband. The divorced husband retains custody, and with family registration, he can see the domicile of the child, and physically trace the child. This is problematic in cases where women or other children in the dissolved family suffered domestic violence or abuse, as mostly such children live with their mothers after divorce. This puts women and children vulnerable to further danger, and the legislation arguably fails to protect women (and children) from domestic violence.28 In order to avoid being found by their former spouses, at least 600 mothers have chosen so far not to register their children (Chapman 2018: 2). This carries immense disadvantages for the children – not being in a family registry means they cannot attend school, do not have access to public health care and have countless problems throughout their lives. The number of unregistered in Japan is unclear, but the Ministry of Justice announced that as of 10 June 2017 they had identified 715 individuals nationally (Ministry of Justice 2017). This figure is unlikely to be the correct total of all the unregistered, and estimates from other sources have put the figure at more than 10,000 (Chapman 2018: 2). It is also apparent, as Chapman argues, that this provision is based on the ideological framework that ‘favours patriarchy, tradition, fidelity and convention’ (Chapman 2018: 2; Curtin 2002), and thus arguably works as part of a larger picture of discrimination against women.

Conclusion One area that has finally seen progress is different minimum age for men and women for marriage. This is set in Article 731 of the Civil Code. It is the clearest distinction between the two sexes, and has been criticised by HRC and CmEDAW as discriminatory. After lengthy public debate, it has finally been amended. On the other hand, the requirement for married couples to have the same family name has also been questioned by HRC and CmEDAW regarding its discriminatory effect on women, and separately at domestic courts for its constitutionality under its equality provisions, but has not been amended. As the Supreme Court upheld the constitutionality of the provision, Article 750 of the Civil Code, in December 2015 emphasising the legitimacy of family names as a means of association of individuals to the social unit, family, they belong to, the Court dismissed the view that disadvantage faced by married women is caused by the legislation itself.

78 Ai Kihara-Hunt An area that has been partly amended is the six-month prohibition of remarriage after divorce only for women. It is justified for avoiding potential conflict in determining paternity, based on the idea that underpins the family system in Japan: peace in the family and privacy of marital life should be kept. This was still supported by the Supreme Court in December 2015 in judging the constitutionality of this provision: Article 733, but it ruled the part over 100 days unconstitutional in both cases, citing growing social demand for a change. Often discussed together with this time period prohibition of remarriage is the automatic assumption of paternity of the child born within 300 days after divorce as the former husband. The rationale for this rule is largely the same, but this rule is causing a significant problem of vulnerability of women who divorced after domestic violence, resulting inconveniences and infringement of their full rights, and that of unregistered children, lack of protection and major problem for them to enjoy their rights. Overall, despite decades of attempts by affected women and lawyers to correct it, there remain discrimination in the legislation. Arguably, a more serious problem is that such legislation with discriminatory effect appears to stem from the underlining idea about paternity, patriarchy, family and stereotypes regarding gender roles within. Nonetheless, amendments of the marital age for women and shortening of the restricted period of re-marriage for women are positive steps. Further examination and amendment to the rest of the provisions with discriminatory effect is awaited.

Notes 1 At CEDAW reviews, the issue of minimum age of marriage was raised by the Committee in every review since 2003 (in 2003, 2009 and 2016); the issue of requirement of same family name was also raised in 2003, 2009 and 2016; as well as the issue of prohibition on re-marriage after divorce. The Committee deferred concluding remarks in 1994 (one before 2003), and in the first reporting cycle there was no concluding observation. At the Human Rights Committee (HRC) that reviews compliance with ICCPR, minimum age of marriage was criticised at every session since 1998; temporal ban on re-marriage was also criticised at every session since 1998. These observations at human rights bodies’ reviews are available at the Office of the High Commissioner for Human Rights (OHCHR 1 n.d.). 2 In addition, the entire CEDAW and ICERD are about non-discrimination. 3 The Convention aims to adopt the measures required for the elimination of discrimination against women ‘in all its forms and manifestations’ (CEDAW Preamble). For the purpose of CEDAW, ‘discrimination against women’ means: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. (CEDAW 1979: Article 1) 4 ICCPR Article 23 provides: 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Discrimination against women 79 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. (ICCPR 1966: Article 23) CEDAW Article 16 is more detailed in this regard: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. There are also regional human rights treaties, but there is no regional human rights treaty that Japan is a party to. (CEDAW 1979: Article 16) 5 Detailed discussion on the status of this principle is outside the scope of this chapter. For detailed analysis, see, for example, Moeckli 2008; Bert 1973; Fredman 2001; Wouter 2005. 6 The HRC expressed its concern in 2014: ‘[w]hile noting that treaties ratified by the State party have the effect of domestic law, the Committee is concerned at the restricted number of cases in which the rights protected under the Covenant have been applied by courts’ (HRC 2014: para. 6). 7 The Committee reiterates its recommendation (see CCPR/C/JPN/CO/5, para. 7) and calls upon the State party to ensure that the application and interpretation of the Covenant form part of the professional training of lawyers, judges and prosecutors at all levels, including the lower instances. The State party should also ensure that effective remedies are available for violations of the rights protected under the Covenant. (HRC 2014: para. 6) 8 The previous Civil Code set the age at 15 for women and 17 for men (Japan Times 2017). 9 The HRC, on the other hand, does not specify what age it considers appropriate to set for marriageable age (ICCPR 1966: Article 23; HRC 1990: para. 4).

80 Ai Kihara-Hunt 10 ‘The State party should amend the Civil Code, with a view to eliminating the period during which women are prohibited from remarrying following divorce and harmonizing the minimum age of marriage for men and women’ (HRC 2008: para. 11). 11 The letter recommended Japan to ‘[t]ake measures to reduce inequalities between men and women, in particular by raising the legal age of marriage to 18 years for all with additional reform of the Penal Code’ (HCHR 2018: Annex, Section D). 12 It was already acknowledged in the 1940s (Shu-giin 1947: 9). 13 See comments by Representative of Japan delegation at the CEDAW review in 1988 (UNGA 1988: para. 53). 14 ‘Article 74 Persons who wish to marry shall submit a notification to that effect, entering the following matters in the written notification: (i) the surname that the husband and wife will take’ (Koseki Hou 1947: Article 74). This did not apply to Japanese and non-Japanese marriage under the Civil Code. With the amendment of the Family Register Act and the introduction of Article 107–2 (‘[w]hen a person who has married a foreign national intends to change his/her surname to the surname used by his/her spouse, he/she may submit a notification to that effect, within the limit of six months from the date of their marriage, without obtaining the permission of the family court’), Japanese and non-Japanese couples could also take one family name as a married couple. 15 On the family system, see Yamamoto 2013. The link between the legislation and stereotypes regarding the role of men and women was made by human rights bodies. For example, HRC 2014: para. 8. 16 The statistic is that of 2009 (Tokyo Chisai 2011: 35). 17 For example, see the four cases that were eventually combined at the Supreme Court in 2015 (Saiko- Saibansyo 2015). 18 It further found: [t]o subject the possibility of choosing the wife’s surname as family name to stricter and much more cumbersome conditions than the alternative (choice of husband’s surname) cannot be judged to be reasonable; at any rate the reason for the distinction has no sufficient importance in order to outweigh the generally excluded gender-based approach. Accordingly, the Committee finds that the authors have been the victims of discrimination and violation of article 26 of the Covenant. (HRC 2002: paras 6.8, 6.9) 19 The European Court held that the objective of a joint surname reflecting the family unity could be reached just as effectively by adopting the surname of the wife as the family surname, and allowing the husband to add his surname, as by the converse arrangement. The Court, before finding a violation of articles 14 and 8 of the European Convention on Human Rights, also stated that there was no genuine tradition at issue, but that in any event the Convention must always be interpreted in the light of present day conditions, particularly regarding the importance of the principle of non-discrimination. 20 In fact, in the sessions in 1988, this issue was already raised (UNGA 1988: para. 51). 21 For details, see Kadomoto 2015: 9–14. 22 In fact, in the sessions in 1988 and 1994 (Concluding Observations were deferred to the next session), the question of discriminatory legislation including the waiting period for women to re-marry was raised (UNGA 1988: para. 51; UNGA 1994: para. 606). 23 ‘The State party should amend the Civil Code, with a view to eliminating the period during which women are prohibited from remarrying following divorce and harmonizing the minimum age of marriage for men and women’ (HRC 2008: para. 11). 24 Translation taken from Ministry of Justice. 25 The proceeding is on the denial of paternity by the former husband or by the child under Article 775 of the Civil Code. If the former husband is bringing the case, it is to

Discrimination against women 81 be brought to the court within one year from the time that he learned the birth of the child in question (Civil Code 1896: Articles 772, 774–778). 26 The Supreme Court ruled that even for cases where DNA proves paternity, it does not automatically reverse the mechanical assumption of paternity because the need to protect the stability of the child’s status continues regardless. Note that in this case, there are two cases combined, and in both cases, the registered fathers wished to continue being registered as a father (Saiko- Saibansyo 2014: 59). 27 Minority view is that where scientific and objective evidence such as blood types denies paternity for the individual case, the assumption could be overturned (Kadomoto 2015: 118). 28 For details, see Chapman 2018.

References Act to Amend Part of the Civil Code: 2016, available at Ministry of Justice, ‘On the Act to Amend Part of the Civil Code (Shortening the Period of Prohibition of Remarriage)’, www.moj.go.jp/MINJI/minji07_00191.html, accessed 12 June 2018. Bert, Vierdag E. W.: 1973, The Concept of Discrimination in International Law, The Hague: Martinus Nijhoff. CEDAW [Convention on the Elimination of All Forms of Discrimination Against Women]: 1979, United Nations Treaty Series, 18 December 1979, vol. 1249, p. 13. Chapman, David: 2018, ‘Article 772 and Japan’s Unregistered’, Japan Forum, https:// tandfonline.com/doi/abs/10.1080/09555803.2018.1461676?journalCode=rjfo20, accessed 28 June 2018. Civil Code [Civil Code, Act No. 89 of April 27, 1896, as last amended by Amendment of Act No. 94 of 2013]: 1896, translation is available at: Ministry of Justice, ‘Japanese Law Translation, Civil Code’, www.japaneselawtranslation.go.jp/law/detail/?id=2252&vm= 02&re=02, accessed 12 June 2018. CmEDAW [Committee on the Elimination of Discrimination Against Women]: 1994, CEDAW General Recommendation No. 21 on Equality in Marriage and Family Relations, 12 April 1994, CEDAW/C/GC/21. CmEDAW [Committee on the Elimination of Discrimination against Women]: 2009, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Japan, 7 August 2009, CEDAW/C/JPN/CO/6. CmEDAW [Committee on the Elimination of Discrimination against Women]: 2010, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, CEDAW/C/GC/28. CmEDAW [Committee on the Elimination of Discrimination against Women]: 2016, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Japan, 7 March 2016, CEDAW/C/JPN/CO/7–8. CMW [International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families]: 1990, adopted by General Assembly Resolution 45/ 158 of 18 December 1990. CRC [Convention on the Rights of the Child]: 1989, United Nations Treaty Series, 20 November 1989, vol. 1577, p.3. CRPD [Convention on the Rights of Persons with Disabilities]: 2007, adopted by the General Assembly Resolution A/RES/61/106 of 24 January 2007. Curtin, Sean: 2002, Inequality in Marriage and Divorce Laws, http://unpan1.un.org/intra doc/groups/public/documents/APCITY/UNPAN016633.pdf, accessed 2 July 2018.

82 Ai Kihara-Hunt ECtHR [European Court of Human Rights]: 1994, Burghartz v. Switzerland, Judgement A280-B of 22 February 1994. Fredman, Sandra, ed.: 2001, Discrimination and Human Rights: The Case of Racism. Academy of European Law, Oxford: Oxford University Press. HCHR [United Nations High Commissioner for Human Rights]: 2018, Letter by the High Commissioner for Human Rights to the Foreign Minister, 13 April 2018. Ho-mu Sho- [Ministry of Justice]: 1996, Ho-sei Shingikai [Legislation Council], February 1996, as cited in Nihon Bengoshi Kyo-kai [Japan Bar Association], ‘Sentakuteki Hu-fu Bessei-sei Do-nyu- Narabini Hi-Tekisyutsu-shi Sabetsu Teppai no Minpou Kaisei ni Kansuru Ketsugi’[Resolution regarding Different Family Names and Abolition of Discrimination against Children Born Out of Wedlock], 1996, www.nichibenren.or.jp/activity/docum ent/civil_liberties/year/1996/1996_2.html, accessed 16 November 2018. HRC [Human Rights Committee]: 1981, Fourteenth Session, Summary Record of the 319th Meeting, 6 November 1981, CCPR/C/SR.319. HRC [Human Rights Committee]: 1990, General Comment No. 19, Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990. HRC [Human Rights Committee]: 1998, Concluding Observations of the Human Rights Committee: Japan, 19 November 1998, CCPR/C/79/Add.102. HRC [Human Rights Committee]: 2000a, General Comment No. 28, Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/ Add.10. HRC [Human Rights Committee]: 2000b, Guido Jacobs v. Belgium, Communication no. 943/2000, CCPR/C/81/D/943/2000. HRC [Human Rights Committee]: 2002, Michael Andreas Müller and Imke Engelhard v. Namibia, Communication No. 919/2000, CCPR/C/74/D/919/2000. HRC [Human Rights Committee]: 2004, General Comment no. 31 [80], The Nature of The General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13. HRC [Human Rights Committee]: 2008, Concluding Observations of the Human Rights Committee on the Fifth Periodic Report of Japan, 18 December 2008, CCPR/C/JPN/ CO/5. HRC [Human Rights Committee]: 2014, Concluding Observations on the Sixth Periodic Report of Japan, 20 August 2014, CCPR/C/JPN/CO/6. ICCPR [International Covenant on Civil and Political Rights]: 1966, United Nations Treaty Series, 16 December 1966, vol. 999, p.171. ICERD [International Convention on the Elimination of All Forms of Racial Discrimination]: 1965, United Nations Treaty Series, 21 December 1965, vol. 660, p.195. ICESCR [International Covenant on Economic, Social and Cultural Rights]: 1966, United Nations Treaty Series, 16 December 1966, vol. 993, p.3. Japan Times: 2017, ‘Japan looks to unify minimum marriage age at 18 for both sexes’, 3 February 2017, www.japantimes.co.jp/news/2017/02/03/national/japan-looks-establishminimum-marriage-age-18-sexes/#.W3NAFPZuJyw, accessed 30 June 2018. Kadomoto, Kazuri: 2015, ‘Minji Hanrei Kenkyu (Civicl Case Studies)’, The Hokkaido Law Review, 66(1): 126[207]-97[136], at 9–14. Koseki Hou [Family Register Act]: 1947, Act No. 224 of December 22, 1947, as amended by Amendment of Act No. 35 of 2007. Translation is available from Ministry of Justice, Japanese Law Translation, Family Register Act, www.japaneselawtranslation.go.jp/law/ detail/?id=2161&vm=04&re=01, accessed 29 June 2018.

Discrimination against women 83 Ministry of Justice: 2017, Homudaijin kakugigo kisya kaiken gaivo [Postscript summary of a cabinet meeting with the Ministry of Justice]. Available from: www.moj.go.jp/hisho/ kouhou/hisho08_00950.html, accessed 21 November 2018. Moeckli, Daniel: 2008, Human Rights and Non-discrimination in the ‘War on Terror’, New York: Oxford University Press. OHCHR 1 (Office of the High Commissioner for Human Rights [OHCHR]): n.d., Human Rights by Country: Japan, www.ohchr.org/EN/Countries/AsiaRegion/Pages/ JPIndex.aspx, accessed 20 January 2018. Osaki, Tomohiko: 2018, ‘Japan’s Diet Oks law lowering age of adulthood to 18’, Japan Times, 13 June 2018, www.japantimes.co.jp/news/2018/06/13/national/ crime-legal/japan-enacts-law-lower-adulthood-age-18/#.W3NCrvZuJyw, accessed 25 June 2018. Saiko- Saibansyo [Supreme Court]: 1995, Minji (O) [Civil Case (O)] No.255, Judgement of 5 December 1995, Supreme Court Reports (Civil Cases), 177–243. Saiko- Saibansyo [Supreme Court]: 2013, Petition of Claim for Damage Case (O) No.1079, 16 December 2015, Full Bench Judgement. Saiko- Saibansyo [Supreme Court]: 2014, 17 July 2014, Hanrei Times 1406. Saiko- Saibansyo [Supreme Court]: 2015, Compensation for Damage Case No.1023,15 December 2015, Full Bench Judgment. Satou, Kazuaki: n.d., ‘Josei no Saikon Kinshi Kikan Minpou 733-jou wa Kenpou 14-jou, 24-jou ni Ihan Suruka [Prohibitionary Period for Women Pursuing Remarriage (Article 733 of the Civil Code) (Constitution Article 14): A Violation of Article 24 of the Constitution]’, Nihon Keitai Ronsyu, 46–1, at 55–72. Shu-giin [House of Representatives]: 1947, Dai 1-kai Gijiroku [Record of First Meeting], No.50, Houmu Iinkai [Judicial Committee], 27 October 1947. Tokyo Chisai [Tokyo District Court]: 2011, Petition submitted by Ms. Fujiko Sakakibara, Legal Counsel for Petitioners, and Others, 14 February 2011. UDHR [Universal Declaration of Human Rights]: 1948, adopted by General Assembly Resolution 217 A(III) of 10 December 1948. UN Charter [Charter of the United Nations]: 1945, 1 United Nations Treaty Series XVI, 24 October 1945. UNGA [United Nations General Assembly]: 1988, Seventh Session, Summary Record of the IIIth Meeting, 24 February 1988, CEDAW/C/SR.111. UNGA [United Nations General Assembly]: 1994, Report of the Commission on the Elimination of Discrimination against Women, 12 April 1994, UN Doc. A/49/38(SUPP). UNGA [United Nations General Assembly]: 2003, Report of the Committee on the Elimination of Discrimination against Women: Twenty-eighth session (13–31 January 2003), Twenty-ninth session (30 June-18 July 2003), UN Doc. A/58/38. World Economic Forum: 2017, The Global Gender Gap Report, www3.weforum.org/ docs/WEF_GGGR_2017.pdf, accessed 16 June 2018. Wouter, Vandenhole: 2005, Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies, Antwerp, Belgium: Intersentia. Yamamoto, Kiyoko: 2013, ‘Minpou Kaisei ni Miru Kazoku Seido no Henka – 1920nendai – 40-nendai [Shift in Family System Reflected in Amendments of the Civil Code – from the 1920s to the 1940s]’, Sonoda Gakuen Joshi Ronbunsyu, vol.47.

7

Do-wa Policy Projects as unfinished human rights business – from Do-taishin to Ikengushin Ian Neary

Introduction A state’s commitment to human rights is one that requires not just the negative duties of restraint but also positive obligations to ensure the full realisation of rights. This is an idea that, while not new, has certainly been developed during the twenty-first century. It has mainly been discussed in the context of the European Convention on Human Rights, for example in the work of Akandji-Kombe, 2007 or Fredman, 2008. However, between 1969–2002 funding for the Do-wa Policy Projects (Do-wa Taisaku Jigyo-): …aimed to eliminate the various elements that unjustly obstructed the improvement of the social and economic status of the residents of the target areas by improvement of their living environment, promotion of their social welfare, stimulation of their economy, stabilisation of employment, enrichment of their education and strengthening of human rights protection activity. (Do-wa Gyo-seishi Henshu- Iinkai 2002: 307–309) Should we regard this as the acceptance by the Japanese state of its ‘positive obligations’ avant la lettre? This would have significant implications because Japan is often accused of having generally responded defensively to human rights proposals at variance with Japanese law or practice (Peek 1992). For example, in July 2014 the Human Rights Committee noted with some frustration that Japan ‘seemed to be regularly appearing before the committee and receiving recommendations which were not acted upon’ (Human Rights Committee 2014). The chair, Nigel Rodley, talked of it as a ‘dialogue of the deaf’. Then, in August 2014, the report of Committee on the Elimination of Racial Discrimination noted with concern that Japan had still not adopted a comprehensive definition for racial discrimination nor legislation enabling victims of discrimination to seek legal redress (CERD 2014). This chapter will begin by outlining what it might mean to assert that a state has positive obligations and how that might be relevant to research on Do-wa issues. Then, following a brief explanation of the historical context of the formation of Do-wa policy in the 1960s, we will focus on the intellectual justification for

Do-wa Policy Projects

85

the Do-wa Policy Projects that were launched after 1969 and the process that led to the projects’ termination in 2002.

The positive obligations of the state When a state commits to the protection of human rights it engages with three kinds of obligations to the individuals within that state: firstly, to respect a person’s rights in the sense of not itself violating any of them; secondly, to protect that person from having their rights infringed by a third party and to punish those who do; thirdly, to implement measures that give full realisation to these rights. The requirement for the state to positively intervene derives from these second and third obligations. Often civil and political rights, as defined for example in the International Covenant on Civil and Political Rights, are associated with negative obligations of the state to refrain from interference. But even in the most straightforward of political rights, a state may be expected not only not to interfere with a person’s right (say) to vote but also to ensure that all may practice that right without discrimination and without the unfair interference of third parties. Slightly more controversially, the right to life entails not just that the state should refrain from taking life but also that it should not allow deaths to occur from preventable causes. In the words of the European Court of Human Rights commenting on the convention, it ‘is intended to guarantee not rights that are theoretical and illusory but rights that are practical and effective’ (Akandji-Kombe 2007: 10). Where a state does not do this effectively it may be criticised for whole or partial failure to act. Such failures may need to be addressed by substantial measures that require basic changes to permit full engagement with the right, perhaps in our first example, reform of the law on voting rights but also procedural measures which might be the creation of an electoral commission to supervise the application of the new law or regulations. In the second example this might not just be restraint by the state not to kill and prevent others from doing so but the positive support of health care provision of some sort. These examples are sufficient to demonstrate that there can be no watertight distinction between civil and political rights which only entail negative obligations and economic, social and cultural rights which require positive action by the state if they are to be ‘practical and effective’. If economic, social and cultural rights are to be meaningful it requires the state to fulfil its positive obligations, both procedural and substantive. Fredman (2008) goes further to argue that these positive obligations can or should derive not just from ‘distributive decisions of the democratic process’ but also from a more fundamental commitment to human rights standards – from law at least as much as from politics. That is to say not from policy adopted in reflection of contingent patterns of power but more fundamental and lasting constitutional commitments. She is concerned to devise a pro-active model that is not dependent on [fickle] political commitment but on judicable rights. In other words, not just components of policy and practice but law underpinned by non-

86 Ian Neary derogable rights (Fredman 2008: 196). Her argument proceeds from the premise that human rights are about more than freedom from state interference, that as social beings we need the state to supply what is needed for the enjoyment of human rights. The state is not a neutral actor in this process but makes a clear obligation to act when it commits to rights standards either through its domestic constitution or ratification of international instruments. But under what circumstances should a state take such positive action? Firstly states should refrain from and restrain others from treating similarly situated individuals differently. That is to say, there should be a commitment to the principle of equality but further than that there should be interaction between the notions of equality of status and distributive equality. In this context when a state is committed to reducing or eliminating inequality it requires more than just restraint and rather it has a duty to take positive measures. As Amartya Sen puts it, ‘Equal consideration for all may demand very unequal treatment in favour of the disadvantaged’ (quoted in Fredman 2008: 178). Recognising that societal disadvantage results from more than just individual acts of prejudice, Fredman suggests the following four aims of equality that should decide the content of positive duties:    

to promote respect for the equal dignity and the worth of all, to accommodate, positively affirm and celebrate identity within the community, to break the cycle of disadvantage associated with outgroups, and to facilitate full social participation. (Fredman 2008: 180)

She concedes that in some regimes, such as the USA, the Supreme Court has resisted the idea that equality can give rise to positive duties. However, its equivalents in South Africa and Canada have not been so opposed to the idea. Moreover, in the UK the principles of equality expressed in the Race Relations Act of 1976/2000 supplemented for gender and disability have created a system of norms such that UK institutions must now give ‘due regard’ in delivering equality even if little progress has been made in the absence of defined objectives and mechanisms for mounting the strategy. These preliminary comments do not exhaust or even adequately summarise Fredman’s account of how human rights are transformed by the notion of the positive obligations of the state but they will, I hope, provide a framework within which to locate our discussion of the development of the Do-wa Policy Project. Can Japan be shown to have acted positively to promote equality in its adoption of Do-wa policy and did this amount to a principled commitment to rights? We will return to the question directly in our concluding remarks but, before tracing the process of the formation of the Do-taishin, some historical context.

Do-wa Policy In 1870 there were in most parts of Japan communities whose members were not permitted to have normal social relations with the mainstream population. They

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were not permitted to intermarry, they were not allowed to take part in the local religious festivities, they were sometimes not even allowed to enter urban areas at certain times of the day, there were restrictions on what they could wear and where they could live. Meanwhile, they were relied on to carry out certain occupations, some of which were clearly ‘dirty’– they were executioners or cleared the roads of dead animals or were engaged in trades which put them in contact with dead animals – e.g. leather making. Nevertheless, by 1870 the bulk of this marginal population was involved in agriculture and many of their traditional occupations were not obviously polluting, for example making bamboo goods. There were a large number of names used to refer to them but in Tokyo and Kyoto they were known as eta or hinin and these are the names used most frequently in the English language sources. In the period 1870–3 the state began to dismantle most of the structures of feudal social and political life and this was no exception: on 28 August 1871 the Emancipation Declaration was passed which abolished all the laws that had previously restricted the social, economic and political activities of ‘eta, hinin and others.’ Still, government paid minimal attention to the issue until the early 1920s when it started to develop a Yu-wa (reconciliation) policy, though even when developed, this was never effective in reducing discrimination against those now widely referred to as Burakumin. Immediately after defeat in World War 2, dire poverty was not uncommon in the bombed out urban areas where there was not much to distinguish the living circumstances of the residents of Buraku communities from other Japanese. Some optimistically expected that as post-war reconstruction and democratisation progressed they would eliminate the inequality of wealth distribution that formed the material base of prejudice and discrimination against those at the bottom of the status hierarchy. However, in the course of the 1950s it became clear this was not happening. Moreover, a movement, called from 1955 the Buraku Liberation League (BLL), engaged in a series of protests about instances of prejudice that it linked to institutional discrimination. This prompted local governments to commit more funding to Buraku improvement projects, a policy that had been renamed Do-wa. In 1957 at its 12th national conference the BLL formally resolved to campaign that government should adopt a coordinated and well-funded improvement policy. The national council of prefectural governors expressed support for such a policy in 1958. And, perhaps reflecting this diverse activity there was an eruption of media interest in the issue. An immediate, interim and not well thought through response to these demands was the decision to launch a Ten-Year Improvement Plan starting in FY1959. However, as the details of the plan were announced, it was clear that it was very restricted in scope, and did not represent current thinking about the issue. There was not much new money on offer either. For example, although the plan promised to spend of ¥3,000M each year (and ¥30,000M over the decade) the budgets proposed for the first three years were: 1960 ¥400M, 1961 ¥600M and 1962 ¥800M (Kanai 1991: 144).

88 Ian Neary

The Advisory Council and its report Mainstream political parties began to make demands for some kind of nationally coordinated policy from the late 1950s. The Social Democratic Party of Japan (JSP) created a specialist sub-committee in its Policy Advisory Council in January 1957, and the ruling Liberal Democratic Party (LDP) started to take the issue seriously the following year. Finally, Yagi Kazuo, a JSP member of the Lower House, submitted a draft bill proposing the creation of a policy council on 30 November 1959. The following spring/summer, a new proposal was passed with the support of all three of the main parties. This brief law established a committee of 11 representatives of concerned ministries and nine individuals who had knowledge or experience of the Do-wa issue with an option to appoint members of specialist sub-committees (Do-wa Gyo-seishi HenshuIinkai 2002: 223–224). Two of the main panel members had experience of the liberation movement. Also on the committee were three academics, a journalist, a city mayor (Himeji) and two retired bureaucrats from agencies attached to the Ministry of Health and Welfare (MHW). It met for the first time on 7 December 1961. In May the following year, the committee decided to survey conditions in the Buraku communities. Firstly they asked each prefecture to provide basic data on the number of Buraku communities, the number of households in each and their employment pattern as of 1 January 1963. Nine prefectures refused to reply – Hokkaido, Aomori, Iwate, Miyagi, Akita, Yamagata, Tokyo, Kanagawa and Miyazaki – meaning the survey was not as comprehensive as anticipated, but it still identified 4,160 communities and a total population of 1,220,157 (1.26 percent of the total population). Then 16 communities were selected for a more detailed survey and were chosen to capture the differences between urban and rural, small and large, those reliant on traditional or modern industry. Thirdly they surveyed attitudes towards the Buraku issue current among the majority population (Sekai Jinken Mondai KenkyuSentaahen 2014: 187–198). In February 1963 three sub-committees were created to consider issues relating to education, the living environment and economic conditions. These surveys and the sub-committee discussions provided a wealth of data and opinions but the basic debate on the main committee concerned whether there really was a need for any special policy. Isomura Eichi, chair of the research subcommittee and later chair of the full panel, recalled that: Most debate was about whether we should “let sleeping dogs lie”. Those who had no previous connection with Buraku issues held the view dominant at the time that there was no need for such policies. For example, representatives from the Ministry of Construction argued that the poor housing conditions in Buraku communities could be dealt with by the general policy for slum clearance. Similarly, given the basic principle of freedom of occupation, employment problems could be dealt with by overall policy. Indeed to create any special policy would itself be discriminatory. (Kanai 1991, n. 144 based on an interview with Isomura, 1 April 1983)

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There was fierce debate about the content of the final report and a consensus was hard to reach. The chair threatened on three occasions to resign (Kanai 1991: 66). Finally, a report was agreed and presented to PM Eisaku Sato- on 11 August 1965.

The report The report, known as the Do-taishin, divides into three substantive sections: its analysis of the Buraku/Do-wa problem, a review of the development of Do-wa policy and recommendations for policy. The preamble defines the problem as ‘an issue that concerns basic human rights that are guaranteed by the constitution and are connected to the universal principles of human freedom and equality’. Secondly, it takes the view that the rapid resolution of this problem is ‘the responsibility of the state and at the same time a task for the nation.’ It begins by explaining that the problem is one of discrimination against a group of Japanese citizens which has been created as a result of Japan’s historical development and which has resulted in serious infringements of their basic human rights. It emphatically rejects any suggestion that they are not racially the same as other Japanese citizens. Although formally freed from the status regulations of feudal society by the Emancipation Declaration they remain on the margins of Japanese society and poor. It points to the ‘dual structure’ of the Japanese economy and suggests that Buraku industries are located within the sectors that have not benefitted from post-war growth. This duality of the economic structure is reflected in the social structure which also is composed of one part that is characterised by modern civil society and the other where feudal status structures and patriarchal family relationships persist. Irrational beliefs and superstitions forming the basis of prejudices are strongly rooted in these latter social structures. It identifies both material and cultural (psychological) aspects to discrimination and argues that as they are inter-connected policy must address both – both the ideas that prevent normal social relations such as access to education and marriage and also the material conditions that reproduce negative images such as inadequate housing, high levels of unemployment and poverty. These statements are followed by a review of the survey data on both the material conditions within the communities and the attitudes of the majority Japanese towards them. The review of the evolution of pre-war policy and the Burakumin movements concludes with recommendations that henceforth the Do-wa issue should become part of the nation’s basic policies and that all agencies of government should make the direct and indirect promotion of the elimination of Do-wa discrimination a fundamental priority. This, it argues, will require close collaboration between central and local government to assist poorer regions and significant increases in central government funding of the projects. It sets out five policy areas: environment improvement, social welfare, industry and employment, education, and human rights. Careful consultation with the residents of these communities will be needed to ensure that the plans take into account special local circumstances. Whereas pre-war policy was based on the ideas of the Emancipation Declaration

90 Ian Neary proclaimed by the emperor, this new policy is founded on the rights set out in the post-war constitution and thus is a basic obligation of the state. This basic responsibility of the state will continue as long as Buraku discrimination exists. To this end, three basic principles should inform each of the five policy areas. Firstly, policies should seek to raise the social, economic and cultural living standards in these communities such that the differences with the neighbouring communities are eliminated while at the same time encouraging selfreliance. Secondly, it will be necessary to eliminate prejudices and discrimination against Buraku communities through education both within schools and society at large and the promotion of human rights activities so as to remove irrational beliefs and superstitions. Thirdly, the resolution of the social and economic problems of the Do-wa communities should be located in the context of rising living standards in Japanese society generally, such as the improvement of the housing conditions and the promotion of equal opportunity in employment. The Do-taishin states that all of this will require the passage of a Special Measures Law to create an appropriate administrative structure and a Do-wa Policy Promotion Council will be needed to propose how these ideas will be implemented. The state should take on the role of ensuring that local governments carry out their obligations with respect to Do-wa policy but it will also need to provide more financial support. Finally, there should be a long-term comprehensive plan to coordinate policy across each region and policy topic.

Responses to the Do-taishin When the report was presented to the prime minister, he promised to act. The BLL welcomed the report’s commitment to introduce a more comprehensive Do-wa policy. Two months later at its annual conference, the BLL leadership introduced the report as the fruit of their ten-year campaign but it noted that their task now was to make sure that it was acted upon. In the words of Tanaka Orinoshin, JSP Diet member and secretary to the BLL, ‘No-one thinks that complete liberation will result from the report but we should systematically examine its content and work out how we can fight for its implementation and how we can improve on its inadequate aspects’ (Kanai 1991: 181). Oga Masayuki argues that the Do-taishin was crucial in demolishing three arguments that had prevented the coordinated development of Do-wa policy at the national level:   

that Buraku discrimination did not really exist anymore, and even the traces that remain were being eradicated by the post-war process of democratisation; that even where some elements of discrimination still remain it is a result of ‘fate’ or ‘human nature’ and thus not amenable to elimination by policies implemented by the state; that even if it were possible for policy intervention to have some impact the best approach would be through ‘general’ policies to clear slums or enhance the educational performance of the socially and economically disadvantaged

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more generally. To introduce targeted policies would risk generating feelings of ‘reverse discrimination’ and thus perpetuate the problem. The survey evidence clearly demonstrated the existence of serious problems: both the extent to which Buraku communities were disadvantaged compared to the majority and even their neighbours and the existence of deep-rooted prejudice within the mainstream community despite nearly 20 years of commitment to democratic practice and rapid economic growth. This was contrary to both universal principles and to the constitutionally guaranteed notions of liberty and equality that it was the duty of the state to implement. Oga notes the report committed the state to take a lead in implementing a positive policy to improve living conditions and life opportunities, as well as creating broad legal protection for human rights by making discrimination illegal and provide redress when it occurred (Oga 2015, interview 28 August 2015). There was some resistance to this stance from its supporters in the Japanese Communist Party (JCP), but most of the movement backed the campaign for the full implementation of the Do-taishin recommendations. It mobilised its supporters in political parties, labour unions and local government to work with them, but progress was slow. At the administrative level bureaucrats argued that implementation would have to be delayed until another survey of Buraku living conditions could be carried out to provide the basis for the formulation of specific policies (carried out in 1967, published in March 1968; see Sekai Jinken Mondai Kenkyu- Sentaahen 2014: 199–211). Among the politicians, the debate was about what kind of legislative response was appropriate. Some argued that the process should begin with the passage of a Basic Law which is located somewhere between constitutional provisions and specific legislation. They set out the basic principles that should guide policy formation. Most legislation is embedded within an area previously defined by a Basic Law. The adoption of a new one signifies that government is starting to take an issue seriously as, for example, when the Basic Law for Persons with Disabilities was adopted in 1970. Yagi and the BLL wanted a basic law that would commit the state to combatting Buraku discrimination and which could be used to hold the government to account. However, the government and LDP sought both to minimise the financial cost of the law and the extent of human rights commitment, arguing that to create a permanent law risked preserving the problem rather than enabling its elimination (Kanai 1991: 194). Finally, in April 1969 the LDP agreed to the passage of the Do-wa Taisaku Jigyo- Tokubetsu Sochiho-, Do-wa Policy Projects Special Measures Law, hereafter SML.

The law The overall aim of the law is ‘to contribute to the enhancement of economic strength, the stabilisation of living conditions and improvement of social welfare in the target areas’ (Do-wa Gyo-seishi Henshu- Iinkai 2002: 307–309). These are defined as ‘those districts where the stable improvement of living standards has been hindered for historical and social reasons contrary to the principles of the

92 Ian Neary Japanese constitution which guarantee the possession of basic human rights to all citizens.’ The core of the SML is article 5, which aims: …to eliminate the various conditions that unfairly prevent the improvement of the social and economic status of the residents of these districts by planning to improve the living environment of the target districts, to develop social security provision, to stimulate industry, to establish stable employment, to enrich education and strengthen activity to protect human rights. Article 6 specifies in a bit more detail what the policies should consist of. Articles 7–10 provide the outline of the financial provisions. Supplementary article 2 specifies that the law will only be valid until 31 March 1979. It was, then, a project law, not a basic law. It incorporated most of the ideas contained in the Do-taishin but its limited objectives did not include the elimination of discrimination and its definition of the problem, and even who would be entitled to benefit from the measures were left vague. The BLL and JSP had to work hard within the Diet to get the main recommendations of the report enacted, and it would continue to be crucial for them to remain engaged with the campaign in central and local government to ensure the policy was enacted. *** The BLL and its sympathisers persuaded the government to extend the programme well beyond the original ten years such that it was not finally brought to a close until 31 March 2002. However, it was unsuccessful in its campaign to change the terms of reference for the aims of the projects or to have government commit to a basic law of any kind. Nevertheless over $40B – ¥4,291,031M – was spent by central government during the 33-year period and at least as much by local government (although that is more difficult to document). Policy was implemented by eight ministries – Justice; Education; Health and Welfare; Agriculture, Forestry and Fisheries; International Trade and Industry; Labour; Construction; and Home Affairs – and coordinated from an office based in the Prime Minister’s Office from 1973 and the So-musho- (Internal Affairs and Communications) from 1984. The largest Do-wa budgets were allocated to the three ‘spending’ ministries – Health and Welfare 22 percent, Agriculture, Forestry and Fisheries 12 percent, Construction 47 percent – and inevitably they became associated with clientelist state structures. Local governments played a crucial role in the actual implementation of Do-wa policy not only providing significant amounts of funding but also consulting with local communities to try to ensure that they worked to satisfy local needs. Further analysis of what these projects did and whether they can be judged successful is the subject for another study.

The Iken Gushin Its work done, the advisory council was dissolved, but in June 1966 it was reconstituted as the Do-wa Taisaku Kyo-gikai (Do-wa Policy Council) with a very

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similar membership. In particular, it included four representatives from Buraku communities among its five specialist committee members. This pattern was sustained into the 1970s until the council was dissolved in May 1978. When it was reconvened in June 1981 none of its ten members was from the Buraku movement, their place apparently being taken by academics. This membership pattern remained stable until it was disbanded in February 1997. The SML was extended for three or five years at a time with the recommendation for extension coming from this council. It also produced reports commenting on the evolution of policy from time to time. It is not necessary to consider any of these reports except for the final one known as the Iken Gushin. What made this report different from its predecessors was that it was anticipating the end of the Do-wa policy programmes at the national level. It is a relatively brief document: less than eight pages as usually reproduced (Do-wa Gyo-seishi Henshu- Iinkai 2002: 493–506. Do-wa Mondai no So-ki Kaiketsu ni Muketa Kongo no Hosaku no Arikata ni tsuite – Advice on the arrangements of measures for the rapid resolution of the Do-wa problem). The first section contextualises the report in a post-Cold War world within which, on the one hand, much regional conflict results from discrimination and prejudice while at the same time a framework of international human rights covenants has emerged. Japan is a part of this international community and has ratified many of the core human rights agreements including most recently the CERD (Convention on the Elimination of all forms of Racial Discrimination, ratified by Japan in 1995 effective January 1996). Section two briefly reviews the three national surveys which examined the living conditions of and attitudes towards Do-wa communities (surveys carried out 1993 published 1995, Sekai Jinken Mondai Kenkyu- Sentaahen 2014: 292–310). The report notes that the average age of Do-wa community residents has increased as younger people have moved out, that the differences between Do-wa communities and their neighbours’ roads and living environment have largely disappeared even if they often remain poor by national standards. High school attendance is now over 90 percent and only a few percentage points less than the national average, although there remains a big gap in university attendance. Still, 30 percent of Do-wa residents report have experience of discrimination, although very few formally report it. While there is an increase in the proportion of Do-wa residents marrying out of their community, discrimination in marriage remains one of the most serious issues. This section concludes with comments that material differences have been removed, but because human rights protection is still inadequate, there remains a need to develop policies that will address discrimination and prejudice. Thirdly, considering the impact of Do-wa Policy Projects, it suggests that most of the planned projects are now complete and that the vicious cycle that connected poverty and discrimination has been broken. However, problems remain in the areas of education and employment and there is continuing need for positive policy. In particular, it suggests that as provision moves from policies specifically aimed at these communities to general policies, the focus on human rights will become more important.

94 Ian Neary Looking to the future it suggests that education should target the removal of discriminatory ideas within schools and the broader society and argues the need to complement this by creating an effective means for redress in cases of human rights violations. Indeed, the report emphasises that ‘It is no exaggeration to say that a country’s human rights redress system is indicative of its attitude to human rights’ (Do-wa Gyo-seishi Henshu- Iinkai 2002: 501). Within the context of the ‘general’ policies, it suggests that it will continue to be important to move towards the early resolution of the Do-wa problem with the central and local government continuing to work together. In the twenty-first century – ‘the century of human rights’ – Japan will need to develop a comprehensive policy to coordinate human rights policy across the whole of government while local governments will need to create an administrative network that addresses Do-wa issues and respect for human rights. For those active in the twenty-first century in the BLL, this document is second in importance only to the Do-taishin. It re-emphasises that even after 30 years of Do-wa policy the issue is not yet finally resolved and that there is a continuing need for all levels of government to work together on policies. It notes that Japan has now made international human rights commitments and that the resolution of this issue is therefore not just a matter of implementing the domestic constitutional commitments but a way of demonstrating its international commitments. Moreover, precisely at a time when there is a transition from the ‘special’ to ‘general’ policies, it will be even more important to focus on human rights dimensions, especially where progress on Do-wa policy implementation has been slow because of weak local government finance. In fact, where this is the case there may continue to be a need for policy to continue and even for central government to support it. Finally, and for the first time, the strategy for dealing with the Do-wa issue is explicitly linked to other human rights issues (Tomonaga 2015: 116). The Iken Gushin made clear that the end of the special projects did not mean that the Do-wa problem was solved and indeed it explicitly emphasises the need to monitor human rights and infuse human rights awareness into all aspects of policy.

Conclusion The Iken Gushin made much about the importance of a system to make discrimination illegal and to provide a system of redress to deal with instances of human rights violations. No such system exists. Since 2000 there have been three attempts to establish some kind of Human Rights Commission (Croydon 2017). Each time progress was painfully slow mainly because the Ministry of Justice would not allow it the degree of administrative and financial independence that would make it compatible with the standards set out by the UN in the ‘Paris Principles’. At the end of the 1960s, it seemed as though Japan was starting to take human rights seriously by adopting the Do-wa policies which focused on addressing the cycle of disadvantage, facilitate their full social participation and promote respect for the equal dignity and the worth of all. However, the promotion of respect for

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equal dignity, the positive affirmation of identity and facilitation of social participation are all at best ‘works in progress’. It is clear that discrimination and prejudice continue to affect people’s lives in the crucial areas of employment and marriage. If we just look at evidence from the Tokyo area where in general awareness of Buraku discrimination is said to be weak, there were 166 cases of discrimination investigated by the BLL including several hundred examples of companies that were routinely investigating applicants’ background as part of the recruitment process (Fujimoto 2017: 26–35). A survey undertaken in 2013 by the Tokyo Metropolitan Government about parent reaction to one of their children planning to marry someone from a Dowa community found that only 46.5 percent would positively endorse their decision (www.metro.tokyo.jp/INET/ CHOUSA/2014/04/60o48111.htm). We are then still some distance from achieving the BLL aim of a society where, ‘without hiding our background we can fully develop our own personalities and potential, a society where people mutually recognise human rights’ (quoted in Article 6.2 in Buraku Kaiho- Do-mei n.d.). This would be a society free from prejudice, discrimination and fear of discrimination in which individuals from Do-wa communities could choose to affirm their identities, or not, unconcerned about negative consequences. More proactive human rights supporting policies could assist in achieving this state, something which was a key theme in the Iken Gushin of 1996. Constitutional principles and the commitments that Japan made in the various international covenants are difficult for individuals or groups to operationalise in the absence of such intermediary structures. The law to promote the elimination of Buraku discrimination passed in 2016 may be a step in this direction. On the other hand, it may simply be a cynical government move intended to provide a future response to criticisms from such bodies as the UN Human Rights Committee. Whichever turns out to be the case, the evidence from both the background to the Do-wa legislation and the lack of positive activity since 2002 clearly leads to the conclusion that the adoption of the Do-wa policies did not amount to the adoption of a principled commitment to human rights protection and promotion or an acceptance by the Japanese state of its positive obligations.

References Akandji-Kombe, Jean Francois: 2007, Positive Obligations under the ECHR - Human Rights Handbooks No 7, Director General Human Rights, Council of Europe, Strasbourg. Buraku Kaiho- Do-mei: n.d., ‘Buraku Kaiho- Do-mei Ko-ryo-’ [Programme of the Buraku Liberation League]. Buraku Kaiho- to wa dono yo-no Jo-tai ka [What is ‘Buraku Liberation’?] Section 3. Buraku Kaiho- Do-mei: 2011, ‘Buraku Kaiho- Do-mei Ko-ryo-’ [Programme of the Buraku Liberation League]. Adopted at the 68th National Conference held 4 March 2011. www.bll.gr.jp/guide-koryo2011.html CERD: 2014, ‘Concluding observations’, 29 August, http://tbinternet.ohchr.org/Treaties/ CERD/Shared%20Documents/JPN/CERD_C_JPN_CO_7-9_18106_E.pdf

96 Ian Neary Croydon, Silvia; 2017, ‘Progress or prevarication? The move towards the establishment of a Human Rights Commission in Japan’, Human Rights Quarterly, 39 (May). Do-wa Gyo-seishi Henshu- Iinkai (Do-wa Administration Policy History Editorial Committee): 2002, Do-wa Gyo-seishi [A History of Do-wa Administration], So-musho- (Ministry of Internal Affairs and Communications), Tokyo. Fredman, Sandra: 2008, Human rights transformed: positive rights and positive duties, Oxford Scholarship online. Fujimoto, Tadayoshi: 2017, Tokyo no Buraku Mondai, Buraku Kaiho-, 10, pp. 26–35. Human Rights Committee: 2014, considers report of Japan, 16 July, www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14878#sthash.NJlolfPy.dpuf Kanai, Ko-ji: 1991, Do-wa Gyo-sei – sengo no kiseki [Do-wa Administration – its postwar tracks] Kaiho- Shuppansha, Osaka. Oga, Masayuki: 2015, Naikaku Do-wa Taisaku Shingikai Toshin Goju-nen to Kongo no Ho-ko-, [The Cabinet Do-wa Policy Advisory Council Report at 50 and Future Directions], Osaka. Peek, John M: 1992, ‘Japan, the United Nations and Human Rights’, Asian Survey, 32, 3: 217–229. Sekai Jinken Mondai Kenkyu- Sentaahen (World Human Rights Issues Research Centre, ed.): 2014, Buraku Jittai Cho-sa no Shoshiteki Kenkyu- [Bibliographical Research on Surveys of Buraku Conditions], Jinken Mondai Kenkyu- 10, Kyoto. Tomonaga, Kenzo-: 2015, Buraku Kaiho- o Kangaeru [Thinking about Buraku Liberation], Kaiho- Shuppansha, Osaka.

8

Blanket police surveillance of Muslims A chilling precedent1 Saul J. Takahashi

Introduction On 28 October 2010, 114 internal documents of the Tokyo Metropolitan Police (TMP), totaling over 450 pages, were published on the internet through a popular file sharing application, with no notice or fanfare. There was no indication who leaked the documents, what the objective was, and even whether the leaking was intentional, and to this day there remains no answer to these questions. The leaked papers show that, from at least 2004, the Japanese police had been engaged in systematic and indiscriminate religious ethno-profiling, with every Muslim residing in Japan considered to be a potential terrorist risk and put under extensive, highly intrusive surveillance. Mosques and other facilities connected with Muslims were deemed as potential ‘terrorist infrastructure’ and were systematically surveilled, with attendees followed and detailed information gathered and stored in a police database. It is important to note that though in theory just one of the 47 prefectural police forces, in practice the TMP holds a privileged leadership position within the police hierarchy, and the documents show that the surveillance operation was very much a TMP-led, national effort involving the police in multiple regions of the country. The information contained in the documents led to a court case, in which the plaintiffs argued, inter alia, that the surveillance violated their right to religious freedom. Keeping in line with the general trend in Japanese judgments, these human rights based arguments were given short shrift by the Japanese judiciary, which ratified the surveillance as a ‘necessary measure’ to prevent terrorism and belittled its negative impact on human rights. The final judgment sets a worrying precedent for human rights protection in Japan.

Religious profiling and blanket surveillance operation The leaked documents reveal an operation of colossal proportions, targeting each and every Muslim in the country. Though official data regarding religion does not exist in Japan, it was estimated in 2012 that there was a total of approximately 110,000 Muslims residing in the country (Tanada 2013: 11) – all of whom are deemed as potential security risks by the police. The TMP targets all ‘nationals of

98 Saul J. Takahashi the Organisation of Islamic Cooperation (OIC) and Muslims of other nationalities’, with the note that: with regard to persons with non OIC nationalities, officers should ascertain from the individual’s words, actions, or clothing etc. whether they are Muslim … when it is not clear, the officer should report to the Public Security officer to request a decision. (Keishicho 2007a: 1) The TMP also lists several predominantly Muslim regions within particular countries not generally associated with the religion, namely the Xinjiang province in China and certain provinces in Thailand and the Philippines2 (Keishicho 2007a: 1). On May 31, 2008, the TMP stated that they had collected and stored data on 12,677 subjects, amounting to 89 percent of the 14,254 OIC nationals living in Tokyo (Keishicho 2008c: 1). The operation continued to expand in the run up to the G8 Summit in Hokkaido in July of that year, to the point where the TMP boasted it had collected data regarding 72,000 OIC nationals nationally (Tokyo Chiho Saibansho 2014). In the run up to the 2008 Summit there were 218 TMP police officers assigned full time duties related to the surveillance operation (Keishicho 2008d: 1), and special commendations were to be awarded to outstanding officers who expanded the bulk of data (Keishicho 2008c: 1). Extremely detailed information was collected on individuals, including not only photographs, addresses, dates of entry into the country and immigration records, employment history, and family information, but also attendance at mosques and general level of religious devotion. Some individuals were classified as informants, with details on any information they had provided, whereas others were clearly treated as suspects. In either case, police officers are instructed to cultivate relationships with Muslims in the hope of obtaining information on any radicalised elements within the community. The TMP provides advice on how to approach Muslims and form relationships, including to ‘refrain from making comments on religion’ and to ‘take care that the subjects do not get the idea that you are targeting them simply because they are foreigners’ (Keishicho 2007a: 1). Besides monitoring the entire Muslim community, several documents show that there was also heightened surveillance of particular ‘high risk’ individuals or groups. One document notes that ‘In light of the fact that [Japan] has sent the Self Defence Forces to Iraq in support of the United States … we must not be complacent regarding the risk of international terrorism’. The paper goes on to state that particular risks are posed firstly by ‘individuals who exhibit strong antiAmerican tendencies in their actions, words, or past activities, and who may engage in illegal activities’ (Keishicho 2005a: 1). It is indicative that the expression of ‘anti American’ political views is on its own treated as a potential terrorist flag, and is linked intrinsically with ‘illegal activities’. Another criterion states that individuals who ‘express extremely critical views of the United States, Western countries, Israel, or of Western culture’ are also high risk (Keishicho 2005a: 1).

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There are no examples given of what may constitute ‘extremely critical views’, and no indication that issues of freedom of expression were taken into account. One Kuwaiti national doing graduate studies in Tokyo is categorised as ‘high risk’ because ‘he has tendencies leaning towards Osama bin Laden, e.g. stating that he “believes only the Prophet Muhammad. The US policies towards Islam are mistaken”’ (Keishicho unknown3: 1). Another target’s postings on an internet chat site praising the leader of Hamas leads the TMP to the conclusion that he has the ‘ideological … foundation for building a terrorist infrastructure’ (Keishicho 2008f). Other criteria are aimed at gauging the target’s level of faith, showing that the Japanese police believed that a Muslim being devout ipso facto indicated they were potential terrorists. Individuals who ‘consistently engage in prayer and other religious rituals’, or who ‘refrain from alcohol and non-halal food’ are listed as terrorist risks, as are people who ‘avoid standing out, and do not speak loudly’ (Keishicho 2005a: 1). Throughout the documents, observations are made regarding the level of religious devotion of target individuals and which mosques (if any) they attend regularly. One person is treated as a risk because he ‘started to pray after his first daughter was born’ (Keishicho 2008f). Another is deemed as a potential terrorist because he attends Arabic classes with his children (Keishicho 2005d). Other criteria for ascertaining ‘high risk’ are even broader, to the point of being questionable on their face. Persons who use prepaid phones or internet cafes are deemed to be suspicious, as are persons who carry cameras, or rent cars while they are staying at hotels. A shave is also a terrorist risk, as the TMP lists persons who ‘recently shaved their beards, etc.’ as requiring heightened attention (Keishicho 2005a: 1, 2). At times, entire nationalities are deemed as ‘high risk’ groups. One report refers to orders to conduct heightened surveillance of all Lebanese nationals in Tokyo, due to ‘concerns that Hezbollah might engage in attacks against Israeli interests’ (Keishicho unknown1). Staff from the Iranian embassy in Tokyo were also surveilled, for no reason other than that ‘the United States has designated Iran as a terrorism supporting country’ and ‘the newly elected President Ahmadinejad is thoroughly anti-Western’ (Keishicho 2005b: 1). Facilities such as mosques, halal restaurants and foodshops, and Muslim owned businesses unrelated to religion (e.g. used car dealerships) were also subject to surveillance – as well as factories, apartment buildings, and other facilities where Muslims lived or were employed. Officers are reminded ‘not to neglect curry restaurants’ and bars, as ‘it has been confirmed that many Muslims’ work at such businesses. Officers also surveilled student dorms (Keishicho 2007a: 1). Mosques in particular are deemed to be ‘high risk’ for no concrete reason other than that they are ‘[centres] for Japanese Islams [sic] in the area. Persons who attend the mosque create their own community, and the mosque could therefore be used as terrorist infrastructure, a recruiting centre, or a hub for Islamic organisations’ (see Keishicho unknown2: 1). One report elaborates how police surveilled a mosque 24 hours a day (including using video cameras during the night) for an entire week, logging the number of persons who entered the mosque on each day and following newcomers to gather

100 Saul J. Takahashi information. ‘Information of special note’ in the report includes a note that a certain individual was absent from the mosque two weeks in a row, indicating the thoroughness with which the police approached the operation (Keishicho 2007c: 1). One 2008 document lists the total number of attendees at 14 mosques in Tokyo during the month of Ramadan as 22,750, with a detailed breakdown of attendance by facility and a comparison to Ramadan the previous year. The same report lists, in bold type, information about plans for new mosques in several locations in Tokyo (Keishicho 2008a: 1). Besides the huge amount of surveillance conducted directly by the police, the apparent ease in which the police were able to obtain information from third parties is also troubling. The TMP boasts in one document that they ‘have built a relationship with the four main rental car agencies in Tokyo … and can receive information from them without a formal, written request’ (Keishicho 2008c: 2). Tokyo Mitsubishi UFJ, one of the main banks in the country, provided the police with detailed information regarding the salaries of all staff in the Iranian Embassy in Tokyo and deposits in their accounts (Keishicho 2005c). Universities provided the police with details on hundreds of exchange students from OIC countries (Keishicho 2008e: 1). It appears that none of this information was obtained on the basis of a court ordered warrant, but on simple queries, some not even in written form, from police officers.

‘Results’ of the surveillance The documents show that the police had very little to show for this sweeping programme. One 2008 case is showcased in several documents as a fruit of their efforts: the TMP states it arrested a foreign national (seemingly from an Arab country) who had been attempting to establish a Hezbollah office in Tokyo. According to the TMP, he had been randomly approaching other Arab nationals in public places and inviting them to his home (which he called the ‘Hezbollah Japanese branch’), where he showed them videos of Hezbollah battling Israel and, according to TMP, engaged in other ‘organisational activities’. The TMP also notes that the individual had a poster of Hassan Nasrallah prominently on display in his apartment, on the wall facing the direction of Mecca. There is no indication of any concrete link to Hezbollah, real or even imagined by the individual concerned, and at least one commentator has noted that Hezbollah, famed for its secrecy, internal discipline, and standards of recruitment, would hardly be associated with such a clumsy operator (Tahara 2011: 103). The individual was arrested on unrelated charges (falsely claiming welfare benefits) that were eventually dropped by the prosecutor – however, the TMP boasts that it was able to ensure he was in detention during the 2008 G8 Summit, neutralising any potential danger (Keishicho 2008a: 3, 4). The only other specific case referred to, also from 2008, is that of a Pakistani national who had come to the TMP’s attention because of his allegedly ‘pro-jihad’ postings in an internet chat room. TMP states that, upon further investigation, they determined that he ‘hated the United States and wanted them to leave Iraq’,

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and felt that Pakistanis were subject to discrimination in Japan – neither of which are views that are particularly uncommon or controversial. The TMP used an immigration related violation by the individual’s roommate to confiscate all computers in his apartment, and subsequently put him under 24 hour surveillance during the Hokkaido Summit (Keishicho 2008a: 2, 3). However, no evidence was found of any actual crime, and the person was never charged (Aoki 2011: 50). Nevertheless, the TMP stresses both of these individuals had ‘strong anti American and anti Israel emotions’, and that detecting such persons are ‘key’ to the success of the operation (Keishicho 2008a: 4). Besides these two cases, both of which are questionable at best, there is no indication that this sweeping surveillance operation produced any concrete results in terms of preventing terrorism. This is hardly surprising, given that similar programmes have been found to be ineffective in other countries (see e.g. Watanabe 2015). Many commentators have noted that the operation required huge amounts of manpower that could have been put to better use (Kuroi 2010). In addition, at least one commentator has lamented the sheer ineptitude of the police exposed in the documents. Basic knowledge of Islamic organisations is shown to be clearly lacking (see e.g. Tahara 2011: 102), and in one regional meeting of counter terrorist managers held by the National Police Agency (NPA), the police bemoans they ‘are at a complete loss with regard to gathering information through the internet … obviously special language skills are required … NPA has no great ideas, so we are open to any you might have’ (Keisatsucho 2009: 2). One document outlines a planned mission of the TMP to Malaysia, where they will: visit mosques in Kuala Lumpur and ascertain from their architectural structure whether they are Turkish, Persian, or Arab. [The mission will also] examine the languages of signs etc. in the vicinity of the mosques to ascertain what groups attend the mosques. (Keishicho 2007b: 4) Tahara states that he: had to laugh … [this mission] can only be called taxpayer funded tourism. There is no connection in Malaysia between the architecture of a mosque and the affiliation of the attendees. … This betrays the superficial level of the knowledge [of the TMP]. (Tahara 2011: 104) The police also appear to think that the Pan-Malaysian Islamic Party (PAS), an Islamic political party in Malaysia, is a terrorist organisation, and the mission plans to ask the law enforcement authorities in that country if they are aware of any PAS ‘cells’ in Japan (Keishicho 2007b: 5). There is post mission report included in the leaked documents. Though the TMP initially refused to comment regarding the leaked documents, the agency eventually issued a statement in December 2010 admitting ‘a high

102 Saul J. Takahashi likelihood that [the leaked documents contain] information collected by police officers’ (Keishicho 2010). Though the TMP apologises for the ‘distress and inconvenience’ caused by the leaking of the information, it does not acknowledge, and to this day has not acknowledged, the existence of the surveillance operation itself – rather, they claim that though information had been collected on potential security risks, there was never any targeted surveillance of Muslims as such. Nevertheless, anecdotal evidence collected by the author indicates that surveillance of mosques continues in various forms. It is worth noting that not all Muslims in Japan are of foreign origin. It is estimated that there are approximately 10,000 Muslims of Japanese origin (Tanada 2013: 11), but this sizable population is completely ignored in the surveillance operation. There is one document stressing the ‘threat of home grown terrorists’, but the paper refers only to foreign nationals who could be radicalised during their stay in Japan (Keishicho 2008b). The paper also stresses the ‘threat’ of approximately 1,600 children of Muslims being raised in Japan who will be in their late teens to early twenties during the next G8 Summit to be held in the country, in 2016 (Keishicho 2008b: 5). Japanese spouses of foreign Muslims are mentioned in passing here and there in the documents, but there is no indication that they would also be targets of surveillance. On the other hand, at least two naturalised Japanese citizens of Middle Eastern origin were targeted for surveillance. Therefore, it is fair to say that, in the eyes of the Japanese police (and perhaps the majority of the Japanese populace – see e.g. Sato 2015), Muslims may represent ‘the other’ at two levels. Not only do they ascribe to a foreign, strange religion, but they are also by definition foreigners – either one being in and of itself a cause for suspicion. Even if a foreign national Muslim manages to obtain Japanese citizenship, he will always remain an ‘other’, with unknown, suspect loyalties. It may have been that this mindset simply caused the Japanese police to overlook the possibility that an indigenous Japanese could convert to Islam.

International standards on racial and religious profiling The practice of ‘profiling’ a particular group for suspicion as a potential terrorist or other criminal threat merely on the basis of their ethnic, religious, or other affiliation is by definition a violation of the principle of non-discrimination. Besides being a fundamental principle of international law, non-discrimination is enumerated in the International Covenant on Civil and Political Rights (ICCPR) in Article 2 and Article 26. The right to freedom of religion is enumerated in Article 18 of the Covenant, which states that the ‘Freedom to manifest one’s religion … may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’ (Article 18.3). States cannot derogate from Article 18, even in times of ‘public emergency which threatens the life of the nation’ (Article 4). Japan is state party to ICCPR, as well as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which defines ‘racial discrimination’ as:

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any distinction, exclusion, restriction or preference based on race, colour, descent or national origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life. (Article 1.1) The question of profiling of Muslims as a terrorist threat, and the negative human rights implications thereof, has received heightened attention in the ‘war on terror’. Though in the strict sense this would be ‘religious profiling’, for historical reasons the practice is often referred to as ‘racial profiling’, or ‘ethno-religious profiling’. The Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism notes that ‘in practice, most terrorist profiles use ethnic appearance and national origin as proxies for religion, as religious affiliation is normally not readily identifiable (and in any case easy to conceal)’ (Scheinin 2007: 13). As noted earlier, this was the case with the Japanese operation, as it focused predominantly on nationality (or region of origin) as an indicator for the target’s religion. In any case, the human rights standards applicable to racial profiling apply, mutatis mutandis, to profiling on the basis of religion as well. The Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance notes that ‘racial and ethnic profiling … has targeted particular individuals and communities solely on the basis of their race, ethnicity, national origin or religion’ (emphasis added), and that it: constitutes a violation of human rights …. Because of its fundamentally discriminatory nature and because it exacerbates discrimination already suffered as a result of ethnic origin or minority status. … The Special Rapporteur recommends a clear and unequivocal prohibition of the use of racial and ethnic profiling by law enforcement agencies. (Ruteere 2015: 18, 19) The Declaration and Plan of Action adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban: Urges States to design, implement and enforce effective measures to eliminate the phenomenon popularly known as “racial profiling” and comprising the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities. (UN 2001: 33) This was a recommendation that was reiterated in the Review Document eight years later (UN 2009: 14).

104 Saul J. Takahashi The police surveillance of Muslims was subject to criticism by human rights treaty bodies at the reviews of Japan’s implementation of the ICCPR and the ICERD, both of which took place in 2014. The Japanese delegation faced particularly tough questioning by members of CERD, including being asked ‘what was being done to end the blanket surveillance of Muslims’ and ‘whether an apology would be issued to those concerned’ (CERD 2014b: 6, 7). The government responded that: in order to protect public safety and maintain order, the police found it necessary to collect certain information in a fair and impartial manner and in accordance with the law. It did not however engage in excessive monitoring of the Muslim community … information on police information gathering activities was confidential. However, the Committee could rest assured that those activities were conducted in strict compliance with the law. (CERD 2014b: 3, 8) Astonishingly, at the session of the Human Rights Committee (CCPR), the delegation seemed to shirk any responsibility for the events, announcing that ‘a compensation claim had been filed in relation to the online disclosure of personal information pertaining to a number of Muslim citizens. The National Police wished to offer its support to the individuals affected’ (CCPR 2014b: 4). Unsurprisingly, neither treaty body was impressed by these responses. CERD stated in their Concluding Observations that they: [considered] systematic collection of security information about individuals, solely on the basis of their belonging to an ethnic or ethno-religious group, a serious form of discrimination. … The Committee urges the State party to ensure that its law enforcement officials do not rely on ethnic or ethno-religious profiling of Muslims. (CERD 2014a: 9) The Human Rights Committee also expresses similar concerns (CCPR 2014a: 6).

The Japanese courts A group of 17 Muslims (including two naturalised Japanese citizens and two Japanese spouses of surveillance targets) whose personal information was included in the leaked documents filed a civil suit in 2011, demanding compensation from the government. Arguments based on international human rights standards binding on Japan, in addition to human rights provisions of the Japanese Constitution, were advanced in court, and the aforementioned concerns of the treaty bodies were also presented at the appeals stage. The plaintiffs’ arguments regarding the unlawfulness of the surveillance operation centred on three main points, namely that it had violated their right to be free from discrimination, their right to freedom of religion, and their right to privacy.

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These arguments are interrelated: the blanket manner of the operation, targeting all Muslims in the country simply on the basis of their religion, was clearly discriminatory and falls foul of the principle of non-discrimination. The operation also prevented Muslims from exercising their freedom of religion: since merely being Muslim would lead to them being treated with suspicion by the police, they were in effect discouraged from practicing their faith openly. Finally, the operation violated the right to privacy of the group, through collection and storage of highly personal data without their permission. The court of first instance, the Tokyo district court, awarded damages of JPY 5,500,000 (approximately USD 50,000) to each plaintiff save one, who was awarded a lesser sum of JPY 2,200,000. However, the court stated that those damages were due to the fact that the information had not been secured properly by the state, i.e. the state had been unable to prevent the leaking of highly personal details. As shall be shown later, the human rights based arguments that the collection of that information itself had been unlawful were dismissed with inadequate, even cursory, consideration (Tokyo Kouto Saibansho 2014). Not satisfied, the group appealed to the appeals court, but this court reaffirmed the findings of the lower court, making only minor changes to the lower court ruling (a common practice in judgments in Japan) (Tokyo Kouto Saibansho 2015). On 31 May, 2016, the Supreme Court refused to hear the subsequent appeal, confirming the judgment of the appeals court as the final word of the Japanese judiciary (Saikou Saibansho 2016). The judgment of the lower court, and, where necessary, the slight changes made by the appeals court, will be examined here. It is submitted that both are indicative of the low priority that the Japanese judiciary affords to international human rights standards, and to human rights protection in general. In sum, the court interprets human rights safeguards extremely narrowly, and state prerogative to infringe on the rights of persons in an overly broad manner. The case also sets a chilling precedent, with potential implications for future human rights related cases in the country.

Ethno-religious profiling: a ‘necessary activity’ From the outset, the court immediately put the cart before the horse, stating that the blanket surveillance of Muslims was ‘a necessary measure to prevent international terrorism’ (Tokyo Chiho Saibansho 2014). Before examining the rights at stake, whether there had been a restriction of any of those rights, and whether any restriction might have been within the limits allowed by international law, the court simply decided that surveillance was justified, and used that as a lens through which it would view any question of rights violations. This arguably created an almost insurmountable obstacle to any rights based claim, since the court had already announced that the surveillance was legitimate. In an attempt to justify the notion that the surveillance was ‘necessary’, the court cites the United States government’s designation of a number of ‘radical Islamic’ organisations as terrorist groups, including Al Qaeda and Hezbollah. The

106 Saul J. Takahashi court produces a long list of terrorist attacks that had taken place ‘in recent years’, starting with the September 11, 2001 attack on the World Trade Center in New York (none of the terrorist attacks had taken place in Japan), and then points to general statements by Al Qaeda to the effect that Japan (and other countries), as a country allied with the United States, was a potential terrorist target. There is no suggestion – in submissions of government lawyers or in the findings of the court – of any concrete threat to Japan, nor any suggestion that any particular individuals in Japan had any connection with international terror groups. The court then cites the Dumont case, where it had come to light in 2004 that several suspected members of Al Qaeda had entered Japan and resided for a period of time between 2002 and 2003. Lionel Dumont was allegedly a high ranking member of the terrorist organisation, but besides his entry using a fake passport, there has never been any indication that Dumont (or any of the other members of Al Qaeda) engaged in any illegal activities in Japan. Nevertheless, the court notes that Dumont was ‘a devout Muslim. He never failed to pray five times a day, and frequented mosques in [the areas of Japan where he resided]’ (Tokyo Chiho Saibansho 2014). Though not stated in so many words, the logic of the court is clear: since Dumont, a known terrorist, practiced Islam with devotion, adherence to the principles of Islam must be an indicator of being a terrorist. This logic (akin to ‘not all Muslims may be terrorists, but all terrorists are Muslims’) is a textbook definition of the religious profiling that, as noted earlier, is prohibited by international human rights law.

Purpose and effect and the right to manifest one’s religion Proceeding on the assumption that the operation was ‘necessary’, the court then construes the right to freedom of religion extremely narrowly, arguing that there was no infringement of this right insofar as the state did not use force to prevent the community from practicing their religion. The court states: there was no intention to interfere with the spiritual or religious aspects of Muslim’s beliefs. … Religious beliefs are a matter wholly internal to a person, one that is not affected by the type of information gathering in the current case. Since there was no direct interference with Muslims’ exercise of their religion, even supposing difficulties were caused regarding some religious matters, such difficulties would be of an indirect and unintended nature …. Given that [the surveillance] was a necessary and inevitable measure to prevent terrorism, there is no violation of [the Japanese Constitution]. (Tokyo Chiho Saibansho 2014) As noted earlier, international human rights law prohibits policies that are discriminatory in either purpose or effect. It would appear that this principle of international law, which was stressed repeatedly by the group in their filings to the court, was simply disregarded.

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Equally problematic is the notion advanced by the court that the right to religion is infringed upon only if force is used. The court seems to believe that a state is only in violation of the right to freedom of religion if it expressly bans a particular religion, forcibly closes down all its religions facilities, and actively arrests and punishes persons who attempt to practice that religion in their own homes. This is clearly not what is envisioned by international standards, which prohibit (with limited exceptions) any action that has the effect of hampering the manifestation of a particular religion (see e.g. Taylor 2005). The court does touch on the potential effect on the targets of surveillance, but in an extremely casual manner. After reiterating that the operation was necessary to prevent terrorism, it states merely that: any effects on the plaintiffs’ [rights] are limited to discomfort or aversion (“fukai-kan, keno-kan”) they may feel when police officers are in the area of, or inside, a mosque … there is therefore no violation of [the relevant constitutional provision]. (Tokyo Kouto Saibansho 2015) The cavalier way in which the court dismisses the effects of the surveillance operation is difficult to accept, and in their submission to the Supreme Court, the group rightly argues that: there are no grounds for the court to simply decide [that the effect of surveillance on the victims is insignificant] … When the police, without any concrete evidence of a crime … treat one as a “potential radical Islamic terrorist” without any justification, the affect will not be “discomfort”, but “fear”. (Musurimu kanshi jiken bengodan 2015: 43)

Compliance with international standards The court states, as per many Japanese precedents, that the articles of international law are ‘substantively the same’ as the relevant provisions of the Japanese Constitution. The court then relies on the somewhat circular logic that, since it has already found there was no violation of the Constitution, there is no violation of international human rights standards either (Tokyo Chiho Saibansho 2014). It is worth noting that this is a longstanding trend in Japanese judgments: though cases do exist where judgments were delivered on the basis of particular international standards, these remain few and far between, and the general practice has been for courts to proclaim that the rights enumerated in international standards are in substance identical to the relevant provisions of the Constitution, and therefore the presiding interpretation of constitutional provisions suffices. With few exceptions, little if any consideration is given by the Japanese judiciary to the fact that the language (and the interpretation by international bodies) of many provisions of international human rights law often goes further in human rights protection than the articles of the Japanese Constitution (see e.g. Iwasawa 1998: 294–295).

108 Saul J. Takahashi The High Court dismisses the treaty bodies’ concerns in a similarly summary manner, finding simply that: [the treaty bodies] express concern in their reports, but they are not stating that [the operation] was a violation of the conventions. Rather, it appears they are merely stating concern regarding reports they had received from NGOs … the recommendations of [these bodies] do not state that the Japanese courts are failing to respect [human rights conventions], and do not touch on the appeal before the court. (Tokyo Kouto Saibansho 2015) In their appeal to the Supreme Court, the legal representatives of the plaintiffs note that the quasi-judicial nature of the treaty body process necessitates the ‘concern’ language, and that the treaty bodies were in effect finding violations of international human rights law: however, this was to no avail (Musurimu kanshi jiken bengodan 2015: 55, 56).

Right to privacy As noted earlier, the findings of the court were not completely unfavourable towards the group, in that significant damages were awarded due to the leaking of personal data. The courts were consistent in providing a remedy on this issue: soon after the documents were leaked, Dai-san Shokan, a publishing house in Tokyo, announced it would publish all the documents as a book. The group petitioned the Tokyo District Court for an injunction preventing this publication, which was granted immediately (Yomiuri 2010). Therefore, the Japanese courts have sided with the group on that aspect, and have clearly faulted the state for not having stored the collected data in a secure manner (Tokyo Chiho Saibansho 2014). However, the argument that the collection of this data was unlawful to begin with – an argument based solidly on international human rights standards – was dismissed. It is extremely problematic that this case was treated simply as if customer data had been hacked from a company computer, and not an unlawful programme of religious profiling by law enforcement officials. It is worth noting that the public narrative on this case, as reflected (and created) in the media, also focused on the sloppy management of personal data on the part of the police, and not on the human rights of Muslims (see e.g. Yomiuri 2010).

Conclusion From the human rights perspective, the Muslim surveillance case is gravely problematic in several aspects. An entire segment of the population was deemed a terrorist threat for no reason other than their faith. These people were (and perhaps still are) subject to intrusive surveillance by the police, with detailed information collected on highly personal matters such as the depths of their religious

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beliefs. This is the textbook definition of ethno-religious profiling, a practice prohibited clearly by international human rights law. Nevertheless, despite this prohibition, and despite concerns expressed by international bodies, the Japanese courts ratified the operation, stating without detailed analysis that the surveillance was a ‘necessary measure’ to prevent terrorism, and diminishing the threat to the rights of Muslims by stating they faced only minor ‘discomfort’. A lack of understanding on the part of the Japanese judiciary of international human rights norms and the international human rights system is also apparent in the judgments. Besides being concerning in and of itself, the case is also a worrying precedent. The Japanese courts dismissed out of hand human rights based arguments, finding in favour of vague and general assertions of combating terrorism. This may have been relatively easy in the current case: Muslims in Japan are mainly foreign nationals from economically less developed countries, and of course Muslims have by and large been made international pariahs in the ‘war on terror’. However, cases in other countries have shown clearly that organisational infrastructure created for anti-terror surveillance can all too easily be used against other groups deemed to be ‘enemies of the state’ – and concerns remain strong with the adoption by parliament in 2017 of the Conspiracy Act (which was renamed and re-branded as a counter terrorism measure). History shows that ‘national security’ measures aimed at a small minority are soon expanded to the population at large.

Notes 1 This chapter builds on a paper presented by the author at the 9th Annual Islamophobia Conference in Berkeley, California, in April 2018 and which is scheduled to be published in a forthcoming issue of the Islamophobia Studies Journal. 2 It is not clear why no mention is made of predominantly Muslim provinces of Myanmar.

References Aoki, Osamu: 2011, ‘Ryuushutsu shiryou kara miru kokuan keisatsu no bakageta jittai’ [The laughable reality of the Public Security Bureau, as shown in the leaked papers] in Aoki, Osamu; Azusawa, Kazuyuki; and Kawasaki, Kenichiro, Kokka to Jouhou: keishicho kouan-bu ‘isuramu souse’ ryuushutsu shiryou wo yomu [The State and Information: Reading the Leaked National Police Agency Public Security Bureau ‘Muslim Investigation’ Documents], Gendai Shokan, Tokyo, at 14–55. CCPR (Human Rights Committee): 2014a, Concluding Observations on the Sixth Periodic Report of Japan, 20 August 2014, CCPR/C/JPN/CO/6, Geneva CCPR (Human Rights Committee): 2014b, 111th session, Summary record of the 3081st meeting, CCPR/C/SR.3081, Geneva. CERD (Committee on the Elimination of Racial Discrimination): 2014a, Concluding Observations on the Combined Seventh to Ninth Periodic Reports of Japan, CERD/C/ JPN/CO/7–9, Geneva. CERD (Committee on the Elimination of Racial Discrimination): 2014b, Eighty-fifth Session, Summary Record of the 2310th Meeting, CERD/C/SR.2310, Geneva.

110 Saul J. Takahashi Iwasawa, Yuji: 1998, International Law, Human Rights, and Japanese Law: the Impact of International Law on Japanese Law, Clarendon Press, Oxford. Keisatsucho [National Police Agency (NPA)]: 2009, ‘Kanto chi–iki tero tantou kachouhosa nado kaigi gaiyou, 1/9: kaiesatsucho’ [Summary records of meeting of assistant section chiefs etc., 9 January, NPA]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2005a, ‘Communiti- taisaku ni tsuite’ [Measures to deal with the community]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2005b, ‘Yo-keikai taishou shisatsu kekka houkoku (11 gatsu 7 nichi-bun)’ [Monitoring report of high risk individual, 7 November]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2005c, ‘Iran taishikan no shokuin kyuuyo nado furikomi joukyou nado no setsumei ni tsuite’ [Regarding the deposit of salaries etc. to bank accounts of Iranian embassy staff]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2005d, Untitled report of contact with subject. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2007a, ‘Indoneshia, Mare-shia shucchou keikaku’ [Plan for mission to Indonesia and Malaysia]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2007b, ‘Jittai ha-aku kyouka suishinjou no youten’ [Points in gathering information]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2007c, ‘Kaimei sagyou shinchoku joukyou’ [Investigation progress report]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008a, ‘Ramadan kikan-chuu no mosku nado no doukou oyobi i-do aru fitoru no kekka ni tsuite’ [Trends at mosques etc. during Ramadan and Eid a;-Fitr]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008b, ‘Nihon ni okeru kokusan terrorisuto (ho-mu guro-n terrorisuto) no kyoui ni tsuite’ [Regarding the threat of ‘home grown terrorists’]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008c, ‘Sumitto honban ni muketa shutoken jousei to taisaku’ [Trends and measures in the capital area in the run up to the Summit]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008d, ‘Hokkaido toyako samitto ni tomonau kokusai tero taisaku henseihyou (623–7/9)’ [International terrorism measures teams and responsibilities in the run up to the Hokkaido Toyako Summit]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008e, ‘Hokkaido toyako samitto keibi ni okeru kokusai tero taisaku no suishin kekka wo fumaeta toukatsu iken kikitorihyou’ [Views on results achieved in anti international terrorism measures in the run up to the Hokkaido Toyako Summit]. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2008f, Untitled report of contact with subject. Keishicho [Tokyo Metropoplitan Police (TMP)]: 2010, ‘Kokusai tero taisaku ni kakaru deta no inta-nettojou he no keishutsu jian ni kansuru chuukanteki kenkai nado ni tsuite’ [Intermediate views regarding the posting on the internet of data on international antiterrorism measures]. Keishicho [Tokyo Metropoplitan Police (TMP)]: unknown1, ‘Yo-keikai taishou shisatsu kekka houkoku (6 gatsu 23 nichi-bun)’ [Monitoring report of high risk individual, 23 June]. Keishicho [Tokyo Metropoplitan Police (TMP)]: unknown2, ‘Yo-keikai taishou shisatsu kekka houkoku (11 gatsu 9 nichi-bun)’ [Monitoring report of high risk facility, 9 November].

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Keishicho [Tokyo Metropoplitan Police (TMP)]: unknown3, ‘Yo-keikai taishou-sha meibo’ [High risk list]. Kuroi, Buntaro: 2010, ‘Keishicho no tero taisaku wo shiwake seyo! Netto ryushutsu shiryou de bareta hikouritsu sugiru sousa’ [The TMP’s counter terrorist measures have to be more effective! The inefficiency revealed by the leaked documents], Asahi Shumbun, 19 November 2010. Musurimu kanshi jiken bengodan [Legal Representatives, Muslim Surveillance case]: 2015, ‘Heisei 27 nen (neo), dai 282 gou, joukokuteiki jiken, joukokuriyuusho’ [2015 case 282, appeal to the Supreme Court]. Ruteere, Mutuma: 2015, ‘Report of Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance’, A/HRC/29/46, 20 April 2015, Geneva. Saikou Saibansho (Supreme Court): 2016, decision of 31 May 2016. Sato, Kenei: 2015, Nihon no naka de isuramu kyou wo shinjiru [Believing in Islam in Japan], Bungei Shunju, Tokyo. Scheinin, Martin: 2007, ‘Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled “Human Rights Council”, Report of Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, A/HRC/4/26, Geneva. Tahara, Maki: 2011, ‘Zainichi Musurimu wo osotta muchi to henken’ [Muslims in Japan: attacked by ignorance and prejudice], in Aoki, Osamu; Azusawa, Kazuyuki; and Kawasaki, Kenichiro, Kokka to Jouhou: keishicho kouan-bu ‘isuramu souse’ ryuushutsu shiryou wo yomu [The State and Information: Reading the Leaked National Police Agency Public Security Bureau ‘Muslim Investigation’ Documents], Gendai Shokan, Tokyo, at 97–106. Tanada, Hirofumi: 2013, ‘Isura-mu myouto jinkou no suikei’ [Estimates of the Muslim population], Waseda University Institute for Multi-ethnic and Multi-generational Studies, Tokyo. Taylor, Paul: 2005, Freedom of Religion: UN and European Human Rights Law and Practice, Cambridge University Press, Cambridge. Tokyo Chiho Saibansho (Tokyo District Court): 2014, 2011 case nos. 15750, 32072, 3266, LEX/DB 25517582 Tokyo Kouto Saibansho (Tokyo High Court): 2015, 2014 case no. 13619, LEX/DB 25506287 UN (United Nations): 2001, ‘World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance; Declaration and Plan of Action’, New York. UN (United Nations): 2009, ‘Outcome Document of the Durban Review Conference’, New York. Watanabe, Yasuyuki: 2015, ‘“Musurimu kanshi jiken” no kenpugakuteki kousatsu: keisatsu ni yory kojin jouhou no shushuu, hokan, riyou no tousei’ [‘The “Muslim Surveillance Incident” from the Constitutional Perspective: Collection, Storage, and Use of Personal Information by the Police’], in Jiyuu no houri: sakamoto masanari sensei koki kinen ronbunshuu [Principles of Liberty: on the occasion of the 70th birthday of Professor Masanari Sakamoto], Seibun-do, Tokyo, at 937–967. Yomiuri Shimbun: 2010, ‘Shasetsu: Keisatsu shiryou ryuushutsu: keiro kaimei to saihatsu boushi ga kyuumu da’ [Editorial: Leaking of police documents: investigate and prevent any further leaks as a matter of urgency], 5 December 2010.

9

The Fukushima diaspora Assessing the state-based non-judicial remedies Tara L. Van Ho and Theodora N. Valkanou

1 Introduction On 11 March 2011, the Tohoku area suffered the triple disaster of the 9,0 magnitude Great East Japan Earthquake, its ensuing tsunami and a meltdown of the Fukushima Daiichi (No. 1) Nuclear Power Plant, operated by the Tokyo Electric Power Company (TEPCO) (The National Diet of Japan 2012). When the earthquake hit the power plant, the three reactors in operation shut down automatically (Kreith 2014: 53). The tsunami that followed, however, disabled the power supply and the reactors’ cooling systems (Atomic Energy Society of Japan 2015: 222) and caused hydrogen explosions and a meltdown (Osaka 2012: 433). The earthquake and resulting tsunami were unprecedented natural disasters in the region, but the meltdown at a nuclear power plant represented a man-made threat. While TEPCO argued that the height of the tsunami, measuring between 13 and 15 metres high, was ‘beyond all normal expectations’ (McNeill 2016), a 2008 company assessment predicted a tsunami of 15.7 metres (TEPCO 2012). The Fukushima Nuclear Accident Independent Investigation Commission established by the national legislature (‘Diet’s Commission’) found that ‘[t]he direct causes of the accident were all foreseeable prior to March 11, 2011,’ but that TEPCO and the Japanese regulatory bodies ‘all failed to correctly develop the most basic safety requirements’ (The National Diet of Japan 2012: 16). Due to concerns about the impact of the radiation, the Japanese government immediately instituted a mandatory evacuation zone – initially for 12 kilometres around the nuclear power station but later expanded to 20 kilometres (World Nuclear Association 2017). Individual towns were added to the evacuation zone when civil society discovered they suffered excessive radiation levels (McNeill 2012: 1). In addition, thousands of persons opted to leave their homes because of safety and health concerns (Iizuka 2017). More than 160,000 people evacuated their homes and an estimated 99,000 people were still displaced as of 2016 (NRC/IDMC 2016). Collectively, we refer to these individuals as ‘evacuees’ or the ‘Fukushima diaspora’. Given the risks nuclear power plants and disasters pose to human life, health, and other human rights, the Japanese government was under an international obligation to regulate power plant operators to protect human rights (UNGP

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2011 Pr. 1–3). Following the disaster, the state was obligated, as a matter of international human rights law (IHRL), to ensure adequate and effective remedies for impacted individuals (UNGP 2011 Pr. 25). The state could meet its obligation either by requiring TEPCO to pay civil claims or by directly providing victims with substantive remedies, also referred to as reparations. Japan has chosen to require victims to pursue claims against TEPCO through one of three distinct but not mutually exclusive paths. Victims can apply directly to TEPCO through its own compensation scheme, use a state-based alternative dispute resolution mechanism (‘ADR mechanism’) established under the state’s Ministry of Education, Culture, Sports, Science, and Technology (MEXT), and/or pursue litigation through courts (Nomura et al. 2012: 23–24; Feldman 2015: 135–152). Under all three systems, TEPCO is directly responsible for the payments but the Japanese government is – at least in part – financing the compensation awards (Rheuben and Nottage 2013: 127; Cooper et al. v. Tokyo Electric Power Company, Inc. 2016). For the purpose of this Chapter in a book dedicated to Japan’s human rights compliance, we evaluate the state’s non-judicial remedial process as the main means through which the state meets its IHRL obligations to provide remedies. This Chapter is the first examination of whether Japan’s reparations programme complies with the state’s IHRL obligations. We focus on the rights and compensation of individuals, setting aside claims made by prefectural governments (Mainichi 2017). In section 2, we examine the impact of the disaster on the human rights of the evacuees. While there are numerous human rights concerns, we focus on the impacts on the rights to housing and health for the diaspora. We then examine the process of the ADR mechanism and the substantive remedies granted through the process in section 3. In section 4, we consider the international obligation to provide remedies under IHRL and the standards for statebased, non-judicial mechanisms within the framework of business and human rights. In section 5, we analyze the adequacy and effectiveness of the ADR process against the framework for business and human rights. The chapter concludes in section 6 that the establishment of the ADR mechanism has positive attributes, but it is not yet an effective remediation process for the purpose of Japan’s IHRL obligations due to procedural and substantive deficiencies.

2 The housing and health impacts and the ADR process The Diet’s Commission has concluded that Japan’s regulatory bodies failed to act appropriately to protect public health and safety, and that the close relationship between Japan and TEPCO played a role in the disaster (The National Diet of Japan 2012: 19–20). We accept this as dispositive for the purpose of this Chapter. Under IHRL, Japan has an obligation to ‘protect’ human rights, meaning it must employ due diligence to address known or likely risks to human rights. This requires the proactive regulation of corporations (and other third parties) to ensure they do not negatively impact on human rights (UNGP 2011 Pr. 1–3). Where a human right is harmed, the state must also ensure that the victims have access to adequate and effective remedies and reparations (UNGP 2011 Pr. 1–3).

114 Tara L. Van Ho and Theodora N. Valkanou By failing to appropriately regulate TEPCO’s conduct (The National Diet of Japan 2012: 16), Japan committed an internationally wrongful act under IHRL. The disaster might have temporarily excused Japan from meeting its ongoing international obligations on the right to housing and health (Müller, 2013: 111– 139), but if a disaster (or other necessity-based claim) is the result of a state’s policies, actions, or inactions, the state cannot invoke the disaster to excuse its international obligations (International Law Commission 2001: Article 25(2)(b)). Japan’s contribution to the disaster (The National Diet of Japan 2012: 16, 19–20) therefore means Japan is internationally responsible for both the direct impact of the disaster as well as for any ongoing inadequacies in the reparations provided. This section briefly examines the impacts on evacuees’ rights to housing and to health. An in-depth analysis of the impacts is beyond the remit of this Chapter, but instead we highlight the impacts that continue to be felt by evacuees as a means of indicating the kinds of harms that have resulted from the state’s failure to act. We then consider how the ADR mechanism addresses the needs of the Fukushima evacuees, and the results of process for the victims. 2.1 Housing impacts The mandatory evacuation that followed has negatively impacted the evacuees’ human rights to housing. Initially, many evacuees were forced to relocate to gymnasia in sports complexes and schools, where they lived in communal conditions (BBC 2011; Beaubien 2011). The government constructed approximately ‘53,000 prefabricated housing units, called kasetsu’ (Brasor and Tsubuku 2017). The apartments are no more than 30 square metres (Brasor and Tsubuku 2017), much smaller and of a poorer quality than many of the family-owned properties in the evacuated towns. The kasetsu were supposed to be used for no more than two years, but as of April 2017 a reported 35,000 evacuees remained in the apartments (Brasor and Tsubuku 2017). Those evacuees who relocated elsewhere in Japan have received housing subsidies during their displacement. TEPCO pays the housing subsidies for mandatory evacuees while the prefectural government had initially given housing subsidies for voluntary evacuees. The subsidies for voluntary evacuees, including those who were originally mandatory evacuees but whose area of origin subsequently met the 20mSv standard, were terminated at the end of March 2017 (Brasor and Tsubuku 2017). Mandatory evacuees are expected to receive subsidies for one year after the ban for their area is lifted (Greenpeace 2017). Both responses to the housing needs of evacuees are problematic. While the initial use of the kasetsu might have been justified, the ongoing policy decision to leave evacuees in conditions that are significantly worse than what they had before the disaster is a regressive policy choice by the state. The fact that the small, prefabricated structures were intended only to be used for two years and have now been stretched to seven suggests prima facie inadequacy. The relatively weak construction, the small structures, and the close proximity of those structures to one another represents a significant departure from the conditions the evacuees

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previously enjoyed. The right to housing does not mean that each individual will always be entitled to the same level of comfort in their housing that they had previously experienced, as circumstances and personal decisions can significantly impact these realities. However, the evacuees are not victims of circumstance but of a deliberate state policy as to how to treat those harmed by the TEPCO disaster. That the state has failed to replace the temporary housing with more permanent structures or with newer and more adequate facilities represents a failure of the state to adequately and appropriately respond to the housing needs of the evacuees. The elimination of housing subsidies also raises questions about the adequacy of the state and TEPCO’s response. Many voluntary evacuees – including those who previously under mandatory orders – have reservations about returning, often because they fear heightened radiation levels (McCurry 2017; Holtz 2018). The government and TEPCO are effectively forcing the return to housing that can pose serious health risks by terminating the assistance necessary for evacuees to remain elsewhere. This raises related concerns about the right to health. 2.2 Health impacts of increased radiation levels The fear evacuees feel about heightened radiation levels is not unreasonable. Following the nuclear disaster, the government changed the national limit for radiation exposure. The previous limit for the public was 1mSv/year; after the disaster, this was raised to 20mSv/year (Jorgensen 2016). The government did not explain its decision (The National Diet of Japan 2012: 19–20), but it uses the 20mSv standard to determine when an area is ‘safe’ for the purpose of lifting mandatory evacuation orders (Ishikawa 2015: 145). The existence of, or the removal of, a mandatory evacuation order impacts the compensation paid to the evacuees (Takahashi 2016: 216). A 2013 report from the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) found that ‘[t]he doses to the general public … [were] generally low or very low’ and that ‘[n]o discernible increased incidence of radiation-related health effects are expected among exposed members of the public or their descendants’ (UNSCEAR 2014; WHO 2013). Yet, other indications suggest there are reasons to be concerned about impacts on the right to health. The UN Special Rapporteur on the Right to Highest Standard of Mental and Physical Health (‘UN Special Rapporteur on the Right to Health’) has noted that there appear to be ‘causal links between long-term exposure to low doses of radiation and the increased incidence of cancer’ (United Nations Human Rights Council 2013: para. 10). The Diet’s Commission agreed, citing ‘international consensus … that the risk’ from radiation exposure ‘does increase in proportion to the dose’ of routine exposure (The National Diet of Japan 2012: 19). The impacts on health are not all radiation-related. Following the disaster, there was a sharp increase of mortality rates among displaced elderly persons (WHO 2015). There are also reports of an increased risk of non-communicable diseases, such as diabetes and mental health disorders, in the aftermath of the disaster (WHO 2015). In addition, there are far-reaching social implications as people

116 Tara L. Van Ho and Theodora N. Valkanou who were displaced or lost their employment suffered ruptured social links, disconnected family ties, and stigmatisation (WHO 2015). Reports suggest that evacuees, both adults and children, have been subjected to bullying (Iizuka 2017; Lies 2017). These incidents of social exclusion are problematic anywhere, but particularly carry weight in a society that values inclusion, as Japan does. Like the issue of housing, the health standards for evacuees were initially the result of the disaster but are being exacerbated by ongoing state policies that pressure the evacuees into returning home despite heightened radiation levels that others in the state are not expected to endure. The state insists the conditions are habitable and safe, but the evacuees, already suffering as a result of the state’s inaction prior to the disaster, are legitimately concerned about what this means for their long-term health (Holtz 2018). Important in this regard is the fact that the state did not respond to the disaster in a way that suggests the evacuees should have confidence in it. According to the UN Special Rapporteur on the Right to Health, the Japanese government did not adequately conduct surveys that could identify short- and long-term impacts of the disaster on physical or mental health (United Nations Human Rights Council 2013, paras 33–40). While the government undertook some surveys, crucial questions relevant to physical health were missing and there was a limited response to questions on mental health (United Nations Human Rights Council 2013: paras 33–40). As such, the exact extent of the damage done to mental and physical health is difficult to pinpoint. Instead, the evacuees are being told they can, without significant impact, return to radiation levels that are not tolerated elsewhere in the country, and without a means to measure the impact. Government insistence on returning people to a situation for which there are significant concerns regarding the right to health, and the fact that the government cannot measure or conclusively address these concerns, suggests another policy choice that may have regressive impacts on the right to health for the evacuees.

3 The ADR process The ADR mechanism was established in May 2011 and was intended to supplement TEPCO’s direct compensation scheme. Lawyers involved in the ADR mechanism reportedly counted on TEPCO’s compensation scheme to handle the majority of the cases, fearing a flood of cases might ‘paralyze’ the ADR efforts (Harlan 2012). Yet, individuals who do not meet TEPCO’s eligibility standards, do not trust TEPCO to administer the remediation process, or were dissatisfied with TEPCO’s offer, have also applied to the ADR mechanism (Feldman 2015: 142). In this section, we briefly explain how the ADR process works before examining the reparations provided through the process. 3.1 Experience with the ADR process In 2012, it was reported that around 500 cases were submitted each month to the ADR system, which was able to process 30 to 70 cases per month (Harlan 2012).

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By April 2015, 15,831 ADR applications had been submitted, of which 12,809 were closed and 3,022 pending (Feldman 2015: 143). By the end of 2016, the number of pending cases was down to 2,137 (Foote 2017: 113–114). While claims were initially expected to be handled in less than three months (Shigekazu 2012: 37–38), through 2016, the average time for resolution of a case was six months (Foote 2017: 114). Approximately 280 attorneys serve as mediators commissioned by the Japanese government and seconded by the Japan Federation of Bar Association (Foote 2017: 108; Feldman 2013: 351). More than 130 junior lawyers serve as investigators (Rheuben and Nottage 2013: 1278). The structure initially called for mediators working in panels of three (Feldman 2015: 142). In practice, the increased caseload required mediators to work individually in order to speed up the process (Feldman 2015: 142). This suggests that the government has not provided adequate financing and resources for the process. It also requires victims to trust an individual arbitrator’s understanding, objectivity, and judgement. Finally, it undermines the transparency and predictability of the process by changing the standards for operation on the victim. Victims must file a hard copy of the claim in person, either at an ADR facility or via the post (Foote 2017: 109). ADR sessions are held behind closed doors, and are based in seven ADR facilities in Fukushima Prefecture or in Tokyo (Foote 2017: 109). While this initially posed accessibility problems for victims, the ADR has introduced phone and video-conferencing to allow victims to attend sessions without having to travel to Tokyo or Fukushima (Foote 2017: 109). In the early cases, most claimants were not represented by legal counsel (Feldman 2015: 142; Nomura et al. 2012: 24). While this is still the case, claimants have increasingly opted for legal representation. In 2016, 43.2 percent of claimants had legal counsel (Foote 2017: 113). The work of the mediators is guided in part by Guidelines issued by the Dispute Reconciliation Committee for Nuclear Damage Compensation (‘Reconciliation Committee’), a ‘blue-ribbon’ committee comprised of elite jurists, medical experts, and others (Feldman 2015: 136), as well as fourteen ‘General Standards’ designed by ADR administrators to inform decision-making (Feldman 2015: 142). The ‘General Standards’ constitute interpretations of the Guidelines, which provide mediators with more flexibility than allowed by the Guidelines themselves (Feldman 2015: 142–143). Mediators often consult the work of other mediators in an effort to ensure consistency (Foote, 2017: 115), but there are concerns about disparities in outcomes (Feldman 2013: 352). Upon an examination of the case by an investigator, the claimant is invited to a mediation session to be conducted in person, by phone, or teleconference (Feldman 2015: 142). In the early cases, mediators required multiple hearings, but increasingly only one hearing is held for each claim (Foote 2017: 117). Based on the documentation provided, the mediator makes an initial proposal (Foote 2017: 109–110). If the claimant declines the proposal, a second round of mediation follows. In the end, the parties can reach a full settlement, a partial settlement, or no settlement (Foote 2017: 109–110, 117). Claimants have complained about the complex process for evidencing and addressing claims (Feldman 2015: 143). The

118 Tara L. Van Ho and Theodora N. Valkanou complexity of the process is exacerbated by the fact that victims must pay for their own legal assistance, creating a financial barrier to representation and advice. In addition to rendering the process inequitable, this has created a situation where self-representation in the majority of cases is a factor that slows down the progress of cases (Nomura et al. 2012: 24). Initially, it appeared that the confidentiality of the process would hinder accountability, but the ADR’s Steering Committee has pushed for greater transparency. By September 2017, the ADR Centre had published statistics about its work, the reasoning for 38 cases, and the settlement agreements for over 1,200 claims with identifying information redacted (Foote 2017: 120–121). The Centre has also indicated a willingness to ‘publicly shame TEPCO by disclosing cases in which the company’s behavior has been especially problematic’ (Foote 2017: 121). Consequently, relevant documents from five cases appear on the website (‘Public Disclosure’). 3.2 The substantive remedies (reparations) awarded The ADR process is focused on awarding compensation, rather than other forms of substantive remedies. The ADR process follows the guidance of the Reconciliation Committee (the basis for the TEPCO scheme) regarding what kinds of claims should be compensated. For individuals and families, that guidance indicates compensation should be paid for evacuation and relocation expenses, medical treatment, mental anguish, lost or decreased property values, damage due to incapacity to work, and damage to businesses, including agriculture (Takahashi 2012: 56). The guidance specifically indicated that other legitimate claims should be honoured, even if the item or type of compensation sought had not been identified by the Reconciliation Committee (Foote 2017: 111). While TEPCO has indicated it will abide by the decisions of the ADR mediators, the company has fought for narrow interpretations of compensable claims, and has repeatedly argued against the compensation for items other than those specified (Foote 2017: 114–115). The relationship between the ADR and TEPCO raises some concerns. Not only is the ADR mechanism based on the TEPCO scheme but the resolution of an ADR claim requires TEPCO’s approval (Foote 2017: 114–115). According to ADR officials, the determination of compensation provided by mediators has been more generous compared to amounts of compensation offered under TEPCO’s compensation scheme (Harlan 2012). This says less about the adequacy of the ADR system, however, and more about the doubts surrounding the adequacy of TEPCO’s own scheme. Mediators are reportedly willing to be generous in their awards, going beyond the confines of the guidelines (Feldman 2015: 143). Claimants still criticise the mediators’ approaches as too rigidly following the basic, restrictive standards imposed by the Guidelines and advocated for by TEPCO, but compensation granted by ADR, at least in some cases, is estimated as lower compared to what could be obtained through litigation (Feldman 2015: 144). It is difficult to discuss the adequacy of the substantive remedies awarded through the ADR process because victims can pursue, and are subjected to, a

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patchwork of remediation. Housing subsidies and temporary assistance may be paid by TEPCO or the government, and victims can pursue remedies through TEPCO, the ADR, or litigation. Since victims can pursue all three avenues simultaneously, the determination by any one avenue may not represent the complete award. Despite this difficulty, there are some inauspicious indicators about the amounts and kinds of compensation awarded through the ADR. In 2014, evidence revealed that there has been an internal instruction by ADR administrators to mediators to award only 50 percent of the claimed amount of compensation to eligible claimants (Feldman 2015: 144). Reportedly, this policy was justified on the basis of the need to accelerate the process by omitting examination of witnesses or a full-fledged investigation of each case (Feldman 2015: 144). Such leaks suggest a rather biased process that falls short of taking properly into account the interests of the parties involved. These revelations justifiably impact the trustworthiness of the process and call into doubt the independence of the mediators. TEPCO has agreed to specific compensation for mental anguish. For mandatory evacuees, TEPCO agreed to pay 100,000 yen per month for the first six months (888 USD as of December 2017) (Foote 2017: 119). If the evacuee was forced to live in particularly difficult conditions, like in a gymnasium, they could receive 120,000 yen per month (1,065 USD). After the first six months, the compensation was to be reduced to 50,000 yen per month (444 USD) (Foote 2017: 119). The ADR’s Steering Committee, however, decided to maintain the higher compensation levels originally awarded even after the six-month period, ‘pointing to the increased stress from the long period of relocation and the uncertainty regarding when, if ever, the refugees would be able to return to their home’ (Foote 2017: 119). While the mediators have been generous with mental health issues, they do not include expert medical evidence when handling physical health claims. Indeed, in most cases, input from medical experts is not taken into account on the basis that consideration of such evidence would slow down the process of assessing claims (Feldman 2015: 144). This necessarily raises concerns about how the mediators assess and redress these claims. It also undermines the equitability, objectivity, and trustworthiness of the process, since it excludes testimony favourable to victims in order to expedite the process overall. As of February 2015, 175.3 billion yen (1.5 billion USD) has been paid in compensation by the ADR mechanism, amounting to less than 4 percent of the amount paid by TEPCO (Feldman 2015: 144). This is likely because the ADR mechanism is used less frequently than the TEPCO scheme (Foote 2017: 114). The Japanese government has indicated that by February 2016 over 58 billion USD had been paid in compensation in over 2.4 million claims (Cooper et al. v. Tokyo Electric Power Company, Inc. 2016: 1–2). This appears to be totalling both the TEPCO scheme and the ADR mechanism awards. However, it is difficult to determine the average award made, since victims must submit new claims as their expenses increase, individuals can be party to more than one claim, and claims increasingly include multiple victims, families, and communities (Foote

120 Tara L. Van Ho and Theodora N. Valkanou 2017: 112). Taking an average of the number of claims therefore leads to an inaccurate picture. It is unclear how much any individual claimant is receiving in compensation. That said, the government’s own numbers indicate that the average compensation award is less than 25,000 USD. According to the OECD, the average yearly wage in Japan in 2016 was approximately 39,113 USD (OECD 2017a), and the average disposable household income was approximately 28,641 USD (OECD 2017b). This means that the average compensation claim is not only less than the average wage, but it is less than the average disposable income in the country. Given the disruption to the evacuees’ lives – their need to find new jobs, to replace most, if not all, of their belongings, and to secure new accommodation and lives while still often paying mortgages for their own homes and property in the exclusion zone – a yearly income that is less than the disposable income of the state seems quite limited.

4 The state’s remedial obligations Because the damage was caused directly by TEPCO’s failures, and indirectly by the state’s failure to regulate, IHRL recognises that the state has an obligation, and the business a responsibility, to ensure remedies (UNGP 2011: Prs. 25, 29). The state must ensure the evacuees have access to adequate remedies, both procedural and substantive (UNGP 2011: Pr. 25). The authoritative UN Guiding Principles on Business and Human Rights (UNGP) details the expectations on states and businesses for providing remedies (UNGP 2011: Prs. 25–31). This section analyses the state’s compliance with its obligation to provide remedies by assessing the adequacy of the non-judicial ADR process. 4.1 The obligations relevant to state-based grievance mechanisms State-based non-judicial mechanisms should be complimentary to judicial mechanisms and may include mediation, adjudication, or culturally based and rights-compatible processes, depending on the issues at stake, the public interest involved, and the needs of the parties (UNGP 2011: Pr. 27 and Com.). The effectiveness of non-judicial mechanisms is to be assessed against the standards set out in UNGP Principle 31, namely: legitimacy, accessibility, predictability, equitability, transparency, rights-compatibility, and triggering continuous learning (UNGP 2011: Pr. 31 and Com.). The final criterion – continuous learning – is an internally focused one, relating to how the process reflects on and uses its lessons learned (UNGP 2011: Pr. 31 and Com.). We set this criterion aside to focus on the impact and appropriateness of the mechanism for the rights-holders. The criteria for assessment are often interlinked. ‘Legitimacy’ refers to the ability of the procedure to engender trust from stakeholders (UNGP 2011: Pr. 31 and Com.). This requires ensuring that rights-holders know about and can access the mechanism (accessibility), that the process is fair and the victims understand both how the process works and why certain decisions are made (equitability, predictability, and transparency), and that the mechanism is accountable for its decisions

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(predictability and transparency) (UNGP 2011: Pr. 31 and Com.). It also requires that the mechanism is ‘impartial, protected from corruption and free from political or other attempts to influence the outcome’ (UNGP 2011: Pr. 27, Com.). Accessibility and equitability both require the reduction of power imbalances between the parties and specific attention to reducing or mitigating any obstacles to access confronted by individuals from vulnerable or marginalised groups (UNGP 2011: Pr. 27, Com.). To this end, there should be efforts to reduce barriers related to, inter alia, literacy, costs, physical location, and access to legal representation, relevant evidence, and expert witnesses (UNGP 2011: Pr. 31 and Com.). Details on the types of processes, outcomes, and means of monitoring the implementation of awards should be publicly available to ensure predictability and transparency (UNGP 2011: Pr. 31 and Com.). Some degree of confidentiality in respect of the dialogue between parties and the individuals’ identities might be necessary, but the mechanism should provide the community and affected stakeholders with relevant information by means of statistics, case studies, or detailed reporting on specific cases. Finally, the mechanism must be rights-compatible, meaning it must reflect and protect internationally recognised human rights as defined by IHRL (UNGP 2011: Pr. 31 and Com.). To ensure the mechanism is rights-compatible, it is necessary to understand Japan’s substantive remedial obligations under IHRL. 4.2 Standards for reparations Substantively, remedies are aimed at restoring the victim to the place he would have enjoyed but for the violation (Shelton 2015: 298–314). Because the obligation is owed to the rights-holder and is based on the individual’s losses, there should be an individual assessment that determines the damage and the appropriate means of responding to this damage. A victim-centred approach would also require consultation with those affected, allowing them to have a say on the forms of reparation to be awarded (Shelton and Carozza 2013: 957). This is not a direct obligation, but it is considered best practice and a means of ensuring the reparation is adequate. Restitution is the preferred form of remedy in international law, requiring a return to the situation that existed before the violation (Shelton 2015: 150). Where restitution alone is impossible or inadequate, the rights-holders are entitled to satisfaction, rehabilitation, guarantees of non-recurrence, and/or compensation to approximate the position that they would have enjoyed if the violation had never occurred (Bantekas and Oette 2016: 620–632; Shelton 2015: 150; UNGP 2011: Pr. 25). Satisfaction is the recognition of wrongdoing while rehabilitation includes physical, mental, and social efforts to restore the victims’ ability to function in society (Shelton 2015: 120, 150). Guarantees of non-recurrence include alterations in laws, regulations, trainings, and practice aimed at ensuring the nonrepetition of the violation (Shelton 2015: 120, 150). Finally, in IHRL, compensation is a catchall, providing a reparation where other forms are ineffective at meeting the victims’ needs or at returning them to the place that existed before

122 Tara L. Van Ho and Theodora N. Valkanou the violation. Therefore, when assessing a state’s compliance with its substantive obligations, the provision and adequacy of compensation is only one factor. The compensation should fit into an over-arching approach that restores the victim, as much as possible, economically, socially, mentally, and physically to the position they would have enjoyed but for the violation.

5 Analysis In assessing the adequacy of Japan’s state-based non-judicial process in light of its IHRL obligations, we first address the process used and then the substantive reparations ordered through the mechanism. 5.1 The process Procedurally, there are several positive attributes to the ADR process. The appointment of attorneys as mediators suggests that the professionals involved in the ADR process are well-qualified and willing to act independently. By releasing statistical information, the reasoning for precedential cases, and all case settlement agreements while redacting confidential information, the ADR has balanced well the competing interests of confidentiality and transparency. While the physical location of the ADR mediation centres in Fukushima and Tokyo has been criticised as not being readily accessible to victims, the ADR has worked to increase accessibility by facilitating phone- and video-conferences for victims unable to access the facilities. Similarly, allowing victims to submit claims at the post office improves the mechanism’s accessibility for most victims. However, the process appears to have paid inadequate attention to the needs of vulnerable persons, most notably disabled persons, the elderly, and those still living in temporary accommodation and with limited access to public transportation. The inability to electronically submit claims is likely to harm members of these vulnerable groups, and seems unnecessary in a society that is as technologically advanced as Japan is. Despite some positive attributes, several issues persist that render the process ineffective as a matter of IHRL. The initial design of the mechanism provided for a threemember mediation committee, but due to the heavy caseload mediators now act individually. Not only does this suggest insufficient resources, but it may undermine the fair conduct of the grievance process and thereby its legitimacy (UNGP 2011: Pr. 31 and Com.). Problems of legitimacy are heightened by the reported internal instructions that mediators award compensation that is only half of that claimed, and without an in-depth examination of evidence, in order to expedite the process. Given the relationship between TEPCO and the Japanese government that gave rise to the disaster (The National Diet of Japan 2012: 19–20) and the Japanese government’s role in financing the claims (Cooper et al. v. Tokyo Electric Power Company, Inc. 2016: 1–2), this order gives the appearance of privileging the financial protection of TEPCO and the Japanese government over the rights of victims. Similarly, the complexity of the process, the need for victims to secure and pay for their own representation, and the limitation on expert medical testimony all

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undermine the legitimacy, trustworthiness, and equitability of the process. Whereas a certain threshold of evidence is essential for an effective remediation process, some flexibility is necessary to account for the fact that victims, through no fault of their own, may be unable to access information or documentation due to high radiation levels or because evidence was destroyed in the earthquake and/ or tsunami. The rejection of expert medical input by the ADR mechanism, in the name of expediency, poses particular concerns about victims’ due process rights. Victims are now reliant on the evidence and conclusions provided by the government and TEPCO, and are unable to challenge this with their own experts. This is not only an impediment to equitability but it also suggests the mechanism is not acting in good faith to restore the victims to the place they would have enjoyed but for the violation, indicating that the remedy is not rights-compatible. Given that the slow progress of cases is cited as a reason for other violations of victims’ rights, like the exclusion of evidence and the recommendation to award only half the amount of any claim, the lack of legal representation poses a significant problem. The equitability of the process is undermined by the fact that many victims need to represent themselves while TEPCO remains well-represented by trained counsel and fights for limited technical interpretations of the types of claims to be admitted and processed. The Japanese government has not successfully tackled these issues. That the state and the ADR process have not adequately addressed the imbalances of power between the parties, but instead seem to be reinforcing those power disparities to the detriment of victims, suggests the process remains inadequate and ineffective for the purpose of IHRL. 5.2 The substantive awards In addition to procedural issues, the substantive awards suggest the mechanism is ineffective under IHRL. Because of the patchwork system, it is never clear if a victims’ substantive needs are actually being met. Requiring victims to seek compensation before three different mechanisms simply to arrive at the most favourable decision suggests that the compensation system is broken. The ADR system may be replacing or supplementing temporary assistance provided by TEPCO or the government, awards rendered by TEPCO’s direct compensation scheme, and/ or compensation sought through litigation. The Japanese government, however, has defended the compensation schemes available as adequate. Its primary evidence for this is that ‘[t]o date [February 2016], approximately 2.4 million claims have been resolved, with total payments to more than $58 billion – an amount exceeding one percent of Japan’s GDP’ (Cooper et al. v. Tokyo Electric Power Company, Inc. 2016: 2). Of course, the adequacy of compensation is not measured by how it impacts the responsible party. The obligation is to restore the victim to the place he/she would have enjoyed but for the violation. There are indicators the compensation awarded is insufficient to meet this obligation. The amounts of compensation rendered – although only roughly estimated – appear inadequate as they fall well short not only of the average wage, but also the average disposable income in Japan. Given what victims have lost and suffered,

124 Tara L. Van Ho and Theodora N. Valkanou and what they have been required to replace during the past seven years of displacement, the disparity between the average compensation awarded and the average disposable income for the rest of the state is troubling. Coupled with the reports that mediators intentionally offer 50 percent of the claimed expenses, the average award suggests that the compensation scheme is inadequate and does not fully compensate victims. However, we acknowledge that it is impossible to firmly evaluate the adequacy of the awards without greater clarity on the number of victims – rather than the number of claims – that have been addressed by the process alongside the other paths for compensation. Finally, the ADR’s failure to challenge the impact of the government’s decision to return victims to places with heightened radiation – or to push TEPCO into continuing payments for the mental and physical toll of complying with this decision, or continuing housing subsidies for those who refuse to be returned – is problematic. Efforts at restitution are important and a significant complement to the compensation that has been the focus of the ADR process. The government’s decision to raise the ‘safe level’ standard to 20mSv/ year is an inadequate restitution when the rest of the state enjoys radiation levels at less than 1mSv. The government’s push to open new areas based on the 20mSv level simply fails to restore victims to the place they would have enjoyed but for the violation. The inadequacy of this restitution is exacerbated by the elimination of substantive assistance for victims one year after the 20mSv level is met in their area of origin. This forces evacuees to accept lowlevel radiation exposure, meaning that the government’s restitution efforts may actually be creating new violations regarding their right to health. As a result, not only are victims being returned to an inadequate situation but they are not receiving appropriate compensation to redress the difference in the position they enjoyed before and after the disaster. That the ADR mediators are not themselves challenging this arrangement, or awarding greater compensation for those who are to be returned to areas with higher radiation levels, suggests the substantive awards are inadequate.

6 Conclusion The Japanese government has an obligation under IHRL to ensure that victims of the Fukushima nuclear disaster receive adequate remedies. One of the mechanisms for doing this is the ADR process. After assessing the process against the IHRL standards for remedies, we conclude that the process fails to meet both procedural and substantive remedial obligations. The government needs to better fund the mechanism and reform it to ensure its accessibility, equitability, and legitimacy. The government also needs to revisit its decision to allow, and sometimes in effect force, victims to live in areas with radiation up to 20mSv/year. Either the exposure level needs to be reduced or a longer period and greater payment of compensation is necessary to address the increased likelihood of long-term health impacts on the returnees. Without reform, Japan’s ADR mechanism, and its handling of the Fukushima disaster, fails to meet Japan’s IHRL obligations.

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References Case law Cooper et al. v. Tokyo Electric Power Company, Inc. US Court of Appeals for the Ninth Circuit (C.A. No. 15–56424), Amicus Curiae Brief by the Government of Japan in Support of Appellant and in Support of Reversal of the Order Below (3 February 2016) [2016] (‘Amicus’).

Other sources Atomic Energy Society of Japan: 2015, The Fukushima Daiichi Nuclear Accident: Final Report of the AESJ Investigation Committee. Tokyo: Springer. Bantekas, I. and Oette, L.: 2016, International Human Rights Law and Practice. 2nd edn. Cambridge: CUP. BBC: 2011, ‘Japan Earthquake: anger of Fukushima Evacuation Plan’, BBC News, 16 March [online]. Available at: www.bbc.com/news/world-asia-pacific-12763273 (accessed 21 December 2017). Beaubien, J.: 2011, ‘In Fukushima city shelter, evacuees imagine future’ WBUR News, 23 March [online]. Available at: www.wbur.org/npr/134792191/in-fukushima-cityshelter-evacuees-imagine-future (accessed 21 December 2017). Brasor, P. and Tsubuku, M.: 2017, ‘Temporary disaster housing has an unforeseen permanence’, The Japan Times, 2 April [online]. Available at: www.japantimes.co.jp/comm unity/2017/04/02/how-tos/temporary-disaster-housing-unforeseen-permanence (accessed 21 December 2017). Feldman, E.A.: 2013, ‘Fukushima: catastrophe, compensation, and justice in Japan’, DePaul L. Rev., 62, p. 335. Feldman, E.A.: 2015, ‘Compensating the victims of Japan’s 3–11 Fukushima disaster’, APLPJ, 16, p. 127. Foote, D.H.: 2017, ‘Japan’s ADR system for resolving nuclear power-related damage disputes’, UTLR, 12, p. 102. Available at: www.sllr.j.u-tokyo.ac.jp/12/papers/v12part07 (foote).pdf (accessed 21 December 2017). Greenpeace: 2017, ‘Unequal impact: women’s & children’s human rights violations and the Fukushima Daiichi nuclear disaster’. Available at: www.greenpeace.org/japan/Global/ japan/pdf/Uequal-impact-en.pdf (accessed 21 December 2017). Harlan, C.: 2012, ‘Japan’s nuclear victims seek compensation, but not a day in court’ The Washington Post, 25 June [online]. Available at: www.washingtonpost.com/ world/japans-nuclear-victims-seek-compensation-but-not-a-day-in-court/2012/06/ 25/gJQAe8GO1V_story.html?utm_term=.02ca3c53352d (accessed 21 December 2017). Holtz, Michael: 2018, ‘Japan wants Fukushima evacuees to go home. They’re not so sure’ Christian Science Monitor, 21 February. Available at: www.csmonitor.com/World/AsiaPacific/2018/0221/Japan-wants-Fukushima-evacuees-to-go-home.-They-r e-not-so-sure (accessed 30 March 2018). Iizuka, S.: 2017, ‘Financial crunch time looms for Fukushima’s “voluntary evacuees”’, The Japan Times, 7 March [online]. Available at: www.japantimes.co.jp/news/2017/03/ 07/national/social-issues/financial-crunch-time-looms-fukushimas-voluntary-eva cuees/#.Wjt-Jd-nE2w (accessed 21 December 2017). International Law Commission:2001, Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10.

126 Tara L. Van Ho and Theodora N. Valkanou Ishikawa, M.: 2015, A Study of the Fukushima Daiichi Nuclear Accident Process: What Caused the Core Melt and Hydrogen Explosion?, Tokyo: Springer. Jorgensen, T.J.: 2016, ‘“Acceptable risk” is a better way to think about radiation exposure in Fukushima’, The Conversation, 15 March [online]. Available at: https://theconversa tion.com/acceptable-risk-is-a-better-way-to-think-about-radiation-exposure-in-fukushima56190 (accessed 21 December 2017). Kreith, F.: 2014, Principles of Sustainable Energy Systems, 2nd edn, Boca Raton: CRC Press. Lies, E.: 2017, ‘Thousands of Fukushima evacuees face hardship as subsidies to be slashed’ Reuters, 17 January [online]. Available at: www.reuters.com/article/us-japan-fukushimaevacuees/thousands-of-fukushima-evacuees-face-hardship-as-subsidies-to-be-slashed-idUS KBN1511C3 (accessed 21 December 2017). Mainichi: 2017, ‘Fukushima Pref. to seek nuclear accident compensation via alternative dispute resolution’, Mainichi, 14 January [online]. Available at: http://mainichi.jp/eng lish/articles/20160114/p2a/00m/0na/020000c (accessed 21 December 2017). McCurry, Justin: 2017, ‘Fukushima evacuees faced “forced” return as subsidies withdrawn’, The Guardian, 10 March[online]. Available at: www.theguardian.com/world/2017/ma r/10/japan-fukushima-nuclear-disaster-evacuees-forced-return-home-radiation (accessed 30 March 2018). McNeill, D.: 2012, ‘The Fukushima nuclear crisis and the fight for compensation’, APJJF, 10(6), p. 1. McNeill, D.: 2016, ‘Japan’s sea wall: storm brews over plans to construct giant $5bn barrier against Tsunamis’, The Independent, 5 March [online]. Available at: www.indep endent.co.uk/news/world/asia/japans-sea-wall-storm-brews-over-plans-to-constructgiant-5bn-barrier-against-tsunamis-a6914781.html (accessed 21 December 2017). Müller, A.: 2013, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health Related Issues in Non-international Armed Conflicts, Leiden: Brill. Nomura, T., Hokugo, T. and Takenaka, C.: 2012, ‘Japan’s nuclear liability system’ in OECD & Nuclear Energy Agency, Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, p. 15. Available at: www.oecd-nea.org/law/fukushima/7089-fukushima-compensation-system-pp.pdf (accessed 21 December 2017). NRC/IDMC (Norwegian Refugee Council/Internal Displacement Monitoring Centre): 2016, 2016 Global Report on Internal Displacement – Japan’s Fukushima IDPs. Available at: www.refworld.org/docid/57a98bf74.html (accessed 21 December 2017). OECD: 2017a, Average Annual Wages. Available at: https://stats.oecd.org/Index.aspx? DataSetCode=AV_AN_WAGE (accessed 21 December 2017). OECD: 2017b, Better Life Index, Japan. Available at: www.oecdbetterlifeindex.org/coun tries/japan/ (accessed 21 December 2017). Osaka, E.: 2012, ‘Corporate liability, government liability, and the Fukushima nuclear disaster’, PRLPJ, 21, p. 433. Rheuben, J. and Nottage, L.: 2013, ‘Now that the (radioactive) dust has settled: resolution of claims from the Fukushima nuclear disaster’, Asian Dispute Review, p. 126. Shelton, D.: 2015, Remedies in International Human Rights Law, 3rd edn. Oxford: OUP. Shelton, D. and Carozza, P.G.: 2013, Regional Protection of Human Rights, 2nd edn. Oxford: OUP. Shigekazu, M.: 2012, ‘The current progress of relief of victims of nuclear damage caused by the Fukushima Daiichi nuclear power plant accident’ in OECD & Nuclear Energy Agency, Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO Fukushima

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Daiichi Nuclear Accident, p. 29. Available at: www.oecd-nea.org/law/fukushima/ 7089-fukushima-compensation-system-pp.pdf (accessed 21 December 2017). Takahashi, W.: 2016, ‘Divided fates of victims after the Fukushima nuclear power plant accident’ in Kaneko, Y., Matsuoka, K. and Toyoda, T. (eds) Asian Law in Disasters: Toward a Human-Centered Recovery, London: Routledge, p. 213. Takahashi, Y.: 2012. ‘The financial support by the nuclear damage compensation facilitation corporation’ in OECD & Nuclear Energy Agency, Japan’s Compensation System for Nuclear Damage: As Related to the TEPCO Fukushima Daiichi Nuclear Accident, p. 41. Available at: www.oecd-nea.org/law/fukushima/7089-fukushima-compensation-systempp.pdf (accessed 21 December 2017). TEPCO: 2012, ‘Fukushima nuclear accident analysis report: summary attachment’, 20 June. Available at: www.tepco.co.jp/en/press/corp-com/release/betu12_e/images/ 120620e0103.pdf (accessed 21 December 2017). The National Diet of Japan: 2012, The Official Report of The Fukushima Nuclear Accident Independent Investigation Commission. Available at: www.nirs.org/wp-content/uploa ds/fukushima/naiic_report.pdf (accessed 21 December 2017) (‘Official Diet Report’). UNGP (UN Guiding Principles on Business and Human Rights), UN Doc. A/HRC/17/ 31 (2011). United Nations Human Rights Council: 2013, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover: Mission to Japan, UN Doc. A/HRC/23/41/Add.3, 2013 (‘SR Health’). UNSCEAR (United Nations Scientific Committee on the Effects of Atomic Radiation): 2014, Sources, Effects and Risks of Ionizing Radiation, UNSCEAR 2013 Report, Vol. I, Report to the General Assembly, Scientific Annex A: Levels and Effects of Radiation Exposure due to the Nuclear Accident after the 2011 Great East-Japan Earthquake and Tsunami. Available at: www.unscear.org/docs/reports/2013/14-06336_Report_2013_ Annex_A_Ebook_website.pdf (accessed 21 December 2017). WHO (World Health Organization): 2013, Health Risk Assessment from the Nuclear Accident after the 2011 Great East Japan Earthquake and Tsunami Based on a Preliminary Dose Estimation. Available at: http://apps.who.int/iris/bitstream/10665/78218/1/ 9789241505130_eng.pdf?ua=1 (accessed 21 December 2017). WHO (World Health Organization): 2015, Ionizing Radiation, FAQs: Fukushima Five Years On. Available at: www.who.int/ionizing_radiation/a_e/fukushima/faqs-fukush ima/en/ (accessed 21 December 2017). World Nuclear Association: 2017, Fukushima Accident. Available at: www.world-nuclear. org/information-library/safety-and-security/safety-of-plants/fukushima-accident.aspx (accessed 21 December 2017).

10 Stratification of rights and entitlements among refugees and other displaced persons in Japan Naoko Hashimoto

Some readers may be already aware that the Government of Japan has maintained an extremely restrictive interpretation of the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and that very few asylum seekers are officially recognised as refugees by the Government. What has received less attention is how the rights and entitlements guaranteed for Convention refugees, asylum seekers, those permitted to stay on humanitarian grounds, those admitted through resettlement, and others forcibly displaced to Japan differ according to legal status. Japan has engaged with refugee protection in various forms for the past four decades, including the admission of 11,319 Indo-Chinese refugees, an increasing number of applications for refugee status by asylum seekers spontaneously reaching the country, resettlement of a small number of Myanmar/Burmese refugees, and humanitarian admission. As a variety of refugee protection schemes have developed, often on a generic basis, the rights and entitlements of these different categories of forced migrants have gradually become stratified. Clearly, the stratification of refugee rights is not necessarily new in the world as demonstrated in James Hathaway’s (2005) The Rights of Refugees Under International Law. Already since the conflicts in the former Yugoslavia in the 1990s, but particularly since the so-called Syrian refugee ‘crisis’, a hierarchy of rights and entitlement in accordance with different pathways to asylum and protection has also emerged in some European countries (MPI Europe 2017; Tometten 2017). Bearing the international legal structure and the recent global developments in mind, this chapter scrutinises the stratification of rights and entitlements among the forced migrants in Japan.1 Its main purposes are to critically analyse problems of the varying rights and entitlements, and to examine any possible logic behind the policy.

Categories of forced migrants in Japan Japan received sporadic arrivals of foreign political fugitives since before World War II (Arakaki 2008: 8–16), but it was 1975 when Japan started to face challenges of responding to large scale forced migrants to Japan. Between 1975 and 1994, more than 13,000 Indo-Chinese ‘boat people’ sought temporary refuge in Japan after either having been rescued by foreign or Japanese ships on the high

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seas and brought to a Japanese port, or having spontaneously arrived in Japan. While the vast majority of them resettled to a third country, 3,536 chose and were allowed to stay and settle in Japan. In addition, 4,372 Indo-Chinese refugees taking temporary refuge in other Asian countries, such as Thailand, Malaysia, Indonesia, the Philippines, and Hong Kong, resettled to Japan between 1979 and 2005 (Naikaku Kambo- 1996: 42). A further 2,669 Vietnamese were admitted to Japan via a family reunification scheme under the Orderly Departure Programme (ODP) from Vietnam between 1981 and 2005, and 742 Vietnamese, Laotian, and Cambodian students who had been studying in Japan since before 1975 were allowed to settle in Japan as de facto refugees sur place (FWEAP 2017: 40). Altogether, 11,319 Vietnamese, Cambodians, and Laotians were admitted to Japan and allowed to settle as long-term residents in Japan, some of whom chose to stay permanently. The total number of Indo-Chinese refugees currently residing in Japan is unknown due to births, departures, and (re)settlement abroad, but at least 1,567 have been naturalised as Japanese citizens (Nanmin Jigyo- Hombu 2017). This chapter calls them Indo-Chinese refugees as a group category. In June 1981, Japan acceded to the Refugee Convention and the Protocol relating to the Status of Refugees, and legislation to ensure domestic implementation of the Convention and the Protocol, i.e. the Immigration Control and Refugee Recognition Act (ICRRA), was promulgated on 1 January 1982. ICRRA adopts the same refugee definition provided for in the article 1(A)2 of the Refugee Convention as amended by the Protocol. Various relevant domestic laws were amended before the accession so that all the refugee rights prescribed in the Refugee Convention should be guaranteed by domestic laws, as far as legal texts are concerned. However, as Table 10.1 demonstrates, only a miniscule proportion of asylum seekers have been officially recognised as refugees among the dramatically increasing number of asylum seekers particularly in recent years. The overwhelming majority of asylum applications have been unsuccessful. Some of those asylum seekers have been permitted to stay in Japan on humanitarian grounds, though the bulk are issued a deportation order. It requires a separate article to analyse in detail why the refugee recognition rate is so low in Japan (Hashimoto 2018). For the purpose of this chapter, suffice it to note that there are considerable discrepancies between rights and entitlements for Convention refugees and for those permitted to stay on humanitarian grounds, as the next sections discuss in detail. In December 2008, the Japanese Cabinet announced its decision to launch a resettlement programme for Myanmar refugees as a pilot project. The pilot phase was initially envisaged for three years from 2010, but was extended for another two years, and the programme eventually became a semi-permanent programme in 2015. Between 2010 and 2017, a total of 39 Myanmar families (152 individuals) with various ethnic and religious backgrounds resettled to Japan either from Thailand or Malaysia (FWEAP 2017: 39). Since these recent resettlement refugees received almost the same protection and assistance package as that for the Indo-Chinese refugees, both groups will be discussed in the same category in the subsequent section.

Table 10.1 Japan’s Refugee Protection Statistics 1978–2017 Year

Asylum Applicants

Refugees Recognised

Indochinese FU /Resettlement

Humanitarian Status

1978

-

-

3

-

1979

-

-

94

-

1980

-

-

396

-

1981

-

-

1203

-

1982

530

67

456

-

1983

44

63

675

-

1984

62

31

979

-

1985

29

10

730

-

1986

54

3

306

-

1987

48

6

579

-

1988

47

12

500

-

1989

50

2

461

-

1990

32

2

734

-

1991

42

1

780

7

1992

68

3

792

2

1993

50

6

558

3

1994

73

1

456

9

1995

52

2

231

3

1996

147

1

151

3

1997

242

1

157

3

1998

133

16

132

42

1999

260

16

158

44

2000

216

22

135

36

2001

353

26

131

67

2002

250

14

144

40

2003

336

10

146

16

2004

426

15

144

9

2005

384

46

88

97

2006

954

34

-

53

2007

816

41

-

88

2008

1599

57

-

360

2009

1388

30

-

501

2010

1202

39

27

363

2011

1867

21

18

248

2012

2545

18

0

112

2013

3260

6

18

151

2014

5000

11

23

110

2015

7586

27

19

79

Refugees and other displaced persons

131

Table 10.1 ( Cont. ) Year

Asylum Applicants

Refugees Recognised

Indochinese FU /Resettlement

Humanitarian Status

2016

10901

28

18

97

2017

19629

20

29

45

Source: Immigration Bureau of Japan 2018

Finally, in May 2016, at the occasion of the G7 Summit held in Japan, the Government announced its decision to admit up to 150 Syrian refugees either staying in Jordan or Lebanon as foreign students over the following five years (Gaimu-sho- 2016). This foreign student scheme is run by the Japan International Cooperation Agency (JICA), the agency responsible for administering foreign development aid, and 20 Syrian university graduates arrived in Japan in fall 2017 to start studying at Japanese graduate schools (Jiji tsu-shin 2017). As a separate initiative from the JICA scheme, a domestic NGO – Japan Association for Refugees – started to collect private donations as scholarships for some Syrian refugees to study Japanese in Japan. Both the JICA student scheme and the private initiative are interesting developments in line with the recent proliferation of various humanitarian admission schemes devised in different parts of the world. However, they are extremely new, with their precise arrangements still evolving at the time of writing. Thus, this chapter only notes that there exist such new initiatives without going into detailed analyses of rights and entitlements conferred to such Syrian students. Based upon the chronological overview of refugee protection by Japan as outlined earlier, refugees and other displaced persons can be categorised into the following five groups: i) ii) iii) iv) v)

Convention refugees; Indo-Chinese refugees and resettlement refugees; Persons permitted to stay on humanitarian grounds; Lawfully staying asylum seekers; and Unlawfully staying asylum seekers.

The following sections provide details of rights and entitlements guaranteed in law and principle for each category.

Convention refugees Convention refugees, i.e. those foreign nationals who lodged an asylum claim upon arrival in Japan and have officially been recognised as refugees by the Ministry of Justice of Japan, are, unsurprisingly, guaranteed the widest rights and entitlements among all forced migrants in Japan. Based upon Art. 61 (2), (2)-2, and (2)-3 of ICRRA, Convention refugees are issued residential status as a longterm resident (teiju--sha) valid for renewable five years. Under Art. 61 (2)-11,

132 Naoko Hashimoto refugees’ acquisition of a permanent residential permit is facilitated, as well. They are issued a Refugee Travel Document (RTD) in line with Art. 28 of the Refugee Convention and a re-entry permit which allows them to travel abroad and return to Japan when travelling abroad. They are also entitled to family reunification. Although their family members remaining in the country of origin are required to go through a visa application process at the Embassy or Consulate-General of Japan in the country, they can obtain some assistance in the procedure. In terms of the facilitation of naturalisation to Japanese, there is no domestic legal provision reflecting Art. 34 of the Refugee Convention, but the Government takes the position that the naturalisation of Convention refugees should be facilitated in practice as much as possible (Ho-mu-sho- 2014). Convention refugees can participate in the national health insurance and the pension plan, and receive the same financial assistance for hospitalisation and delivery as provided for Japanese nationals. They can also receive welfare allowance (i.e. public cash assistance as income support) as necessary, and in accordance with the same standards as set for Japanese. They also have the right to live in the public housing operated by the quasi-official Urban Renaissance Agency, although the actual criteria for receiving a spot in public housing vary in each municipality, and the competition is usually fierce. In terms of education, refugee children have the same right to education as Japanese children. There are no tuition fees for Japanese public (state-run) elementary schools or junior high schools for any student, regardless of nationality or residential status. However, one problem is that, while Japanese parents (or guardians) are legally obligated by Art. 26 of the Japanese Constitution to ensure that their Japanese children attend school through the junior high school level (compulsory education), the relevant Constitutional provision has been interpreted so that foreign parents do not have the same legal obligation vis-à-vis their children. There are also other practical challenges, which will be discussed in detail in the last section. As regards employment, Convention refugees are entitled to the same rights and benefits as Japanese workers. They can also use public employment services, can receive financial assistance in the case of job loss, and can receive compensation in cases of labour related accidents. In a nutshell, Convention refugees are guaranteed the most favourable treatment among foreigners lawfully staying in Japan. The most noteworthy difference between long-term residents (including Convention refugees) and Japanese nationals is the lack of political rights; foreign nationals cannot run for, or vote in, any public election. To exercise those political rights, foreigners would have to obtain Japanese nationality, and the Japanese Nationality Law strictly maintains the jus sanguinis principle and prohibits multiple nationality. Despite such restrictions, some refugees (particularly the second generation refugees) have chosen to naturalise, as mentioned earlier. On the other hand, there is one big advantage specifically designed for Convention (and resettlement) refugees, not available for any other foreigners in Japan; that is the integration assistance course run by the Refugee Headquarters (RHQ) of the

Refugees and other displaced persons

133

Foundation for the Welfare and Education of the Asian People (FWEAP). The course is fully funded by the Government and currently provides 572 hours of Japanese language training, 120 hours of daily-life orientation, assistance in job-hunting, and employment training opportunities. Attendance to the integration assistance course is free: refugees are provided free accommodation, free nursery care, daily subsistence allowance, transportation costs, medical costs during the course, and a one-time relocation assistance grant when they complete the course. After completion, some subsidies and monetary incentives are payable to refugees themselves or (potential) employers to promote eventual self-sufficiency. When refugees and/or their children enrol in a school or university, they are also provided with education and training assistance grants (FWEAP 2017: 41–46). Besides these grants, RHQ staff continuously provide refugees with advice and counselling in various aspects of life such as language, daily survival, education, employment, housing, health, and legal matters. This public assistance package provided for Convention (and resettlement) refugees funded by the Government is noticeably comprehensive, which makes stark distinction with the inadequate assistance to other migrants in Japan.

Indo-Chinese refugees and resettlement refugees The first Indo-Chinese refugees settled in Japan (one family of three Vietnamese) in 1977 were issued a special one-year residence permit, as provided for in immigration law at the time. In principle, all Indo-Chinese refugees who (re)settled to Japan were issued the same residential status until 31 December 1981. After 1 January 1982 when the ICRRA was enacted, (re)settled Indo-Chinese refugees were issued the ‘long-term resident’ (teiju--sha) status with a possibility to change to permanent residency status, or to Japanese nationality (Oie 2017: 152). There are three noteworthy points regarding the residential status of IndoChinese refugees. Firstly, they received a long-term residence permit without going through an individual refugee status determination (RSD) procedure; they were regarded prima facie refugees based upon United Nations General Assembly resolution 3455 of 9 December 1975 and a Note Verbale issued to the Japanese Government by the United Nations High Commissioner for Refugees (UNHCR). It was also the policy of UNHCR to treat all Indo-Chinese displaced populations as prima facie refugees, even though it was officially acknowledged that some of them would not qualify as refugees under the Refugee Convention (UNHCR 2000: 83). Thus, these Indo-Chinese refugees were treated as de facto refugees without being legally recognised as refugees either by UNHCR or the Japanese Government. Secondly, despite the first point, some Indo-Chinese refugees (re) settled in Japan did apply for asylum, and were granted Convention refugee status by the Japanese Government after 1982. It is generally understood that the relatively large numbers of Convention refugees in 1982, 1983, and 1984 as shown in Table 10.1 are all Indo-Chinese refugees, although there is no disaggregated data publicly available. The only practical advantage of going through the RSD was the prospect of obtaining an RTD, as that was only issued for Convention refugees. Besides that, however, both Indo-Chinese refugees who were legally recognised as

134 Naoko Hashimoto Convention refugees and those who did not go through the RSD procedure received virtually the same treatment and entitlements. This is intriguing particularly when compared with the stark difference in treatment between the Convention refugees on the one hand and those whose asylum application failed and were permitted to stay on humanitarian grounds on the other, as will be detailed in the following sections. Thirdly, all the measures taken for Indo-Chinese refugees were made through incremental Cabinet Approvals between 1977 and 2003; there was no single piece of legislation specifically designed for Indo-Chinese refugees adopted by the Diet. (Re) settled Indo-Chinese refugees were automatically granted long-term resident permits based upon a Cabinet Approval and a public notice of the Minister of Justice, as provided for in the ICRRA. It is true that the previous immigration legislation was replaced and amended with adoption of the ICRRA in 1981, to give effect to the obligations under the Refugee Convention. However, the amendment was for the purpose of acceding to the Convention, not directly to provide for measures for Indo-Chinese refugees. In other words, Japan becoming state party to the Refugee Convention had little impact on the Indo-Chinese refugee policy. The basic principle regarding the residential status of resettled refugees under the recent programme launched in 2008 is effectively the same as that for IndoChinese refugees. By virtue of a Cabinet Approval and a public notice of the Minister of Justice, Myanmar refugees resettled from Thailand or Malaysia are issued upon arrival in Japan a long-term residential status which was initially for three years but later extended to five years.2 They are all regarded as prima facie refugees based upon the recommendations of UNHCR, and are not required to go through the individual RSD after arriving in Japan. They are not barred from lodging asylum applications upon resettlement, but the author is not aware of any resettled Myanmar refugee having done so. This is probably because obtaining the RTD is the only advantage to being recognised as a Convention refugee: there is no practical difference in actual rights, entitlements, and services available for them in Japan, and most refugees have apparently decided there is no discernible benefit in making the tremendous effort necessary to go through the RSD. Public assistance provided for Indo-Chinese refugees particularly at the initial phase between 1975 and 1979 was extremely meagre or almost non-existent. This was partially because the term ‘refugee’ did not exist in Japanese domestic law until accession to the Refugee Convention in 1981, and no public entity had the statutory authority, mandate, or budget to provide assistance for refugees or displaced persons. Assistance to Indo-Chinese refugees was almost entirely reliant upon private charities, as acknowledged in government reports (Naikaku Kambo-, 1980 and 1982). It was only in 1979, when RHQ was established by a Cabinet Approval, that public assistance for refugees started being provided. Although the assistance programme was initially limited, it expanded gradually and paved the way for public assistance to be provided for Convention refugees as well as for resettlement refugees. In fact, given that Japan started admitting Indo-Chinese refugees before its accession to the Refugee Convention, the IndoChinese refugee response became the precursor to the public measures to be subsequently taken for Convention refugees. Intriguingly, although the Indo-

Refugees and other displaced persons

135

Chinese refugees were treated as de facto refugees and provided with the same rights and entitlements as prescribed for Convention refugees after the ICRRA took effect in 1982, it was only in April 2003 that RHQ was authorised to extend the same integration assistance to Convention refugees. Between 1982 and 2003, therefore, Indo-Chinese refugees had easier access to and enjoyment of their rights and entitlements than Convention refugees, as the latter could not enjoy the RHQ assistance.3 This was despite the fact that the vast majority of Indo-Chinese refugees did not have Convention refugee status, and their entitlements were based only on incremental Cabinet Approvals. The final section of the chapter analyses the logic behind such a distorted relation between Indo-Chinese refugees and Convention refugees. As is clear from the previous discussions on residential status and assistance arrangements, there is virtually no difference in rights, entitlements, and service available for Convention refugees, Indo-Chinese refugees, and resettled refugees, at least since 2003. They are all entitled to receive the comprehensive integration assistance programme and the follow-up service provided by RHQ. In terms of family reunification, however, Indo-Chinese refugees and resettled refugees arguably enjoy preferential treatment compared to Convention refugees, since Vietnamese refugees were able to take advantage of the ODP, and recently resettled refugees can invite their family members within the existing resettlement programme. On the other hand, once again, Convention refugees obtain an RTD, while Indo-Chinese refugees and resettled refugees do not. There are differing views as to whether the RTD actually makes a difference in ensuring travel; some refugees have said that refugee children when they join their school trip abroad in particular have faced difficulties at immigration controls, and others say that the re-entry permit issued for them by the Japanese Immigration Bureau functions as a de facto travel document and guarantees their return to Japan. In any case, Resident Cards issued for refugees (and all resident foreign nationals) function as a daily identity document, so the RTD is used only in cases of overseas travel.4

Persons permitted to stay on humanitarian grounds The vast majority of forced migrants who submit an asylum application upon spontaneous arrival in Japan are not recognised as Convention refugees by the Government, as shown in Table 10.1. Some of them are permitted to stay in Japan on humanitarian grounds, on a status known as Special Permission to Stay (zairyu--tokubetsu-kyoka). The Minister of Justice typically issues a residential status called ‘designated activities’ (tokutei-katsudo-) for such asylum seekers based upon an administrative ordinance, although the Minister of Justice may issue them a ‘long-term residential permit’ based upon ICRRA. The ‘designated activities’ residential status is normally issued for one year initially, and may be changed to a ‘long-term resident’ status after several renewals. The one-year designated activities status is precarious, as will be shown later.

136 Naoko Hashimoto Family members in the countries of origin of those staying in Japan on humanitarian grounds can apply for a visa at a Japanese embassy or consulate-general, but there is no preferential consideration or special assistance for them. Obviously, those permitted to stay on humanitarian grounds are not issued an RTD, although they are issued a re-entry permit upon application and Residential Cards can function as their identity document. Those permitted to stay on humanitarian grounds are legal residents, and can participate in the national health insurance scheme and the national pension plan. They are also entitled to the assistance in hospitalisation and delivery, and though they are not forbidden from receiving public cash assistance as income support, in practice decisions often vary depending upon the municipalities (or individual officials).5 They are entitled to the same housing rights, education rights, and employment rights as other lawfully staying foreign nationals (including Convention refugees). However, one of the most significant disadvantages for persons with designated activities residential status (i.e. those permitted to stay on humanitarian grounds) is that they have no right to the range of assistance programmes and service provided by RHQ. They cannot access language education, vocational training, job-matching facilitation, or any other grants, subsidies, or service provided by the Government through RHQ. This obviously makes it difficult for them to learn and exercise their rights and integrate into Japanese society. Consequently, the enjoyment of their rights largely depends upon service and assistance provided by NGOs, other private entities, their local municipality, or their friends and acquaintances.

Lawfully staying asylum seekers Unsurprisingly, asylum seekers have much less rights and entitlements compared to Convention refugees, resettlement refugees, or those staying on humanitarian grounds. There are also significant differences between lawfully staying asylum seekers (i.e. those with legal status) and those unlawfully staying (i.e. those without legal status). If a foreign national lodges an asylum claim while they hold a regular residential status, their status is switched to that of ‘designated activities’ as an asylum seeker for six months renewable. Asylum seekers granted this ‘designated activities’ residential status are entitled to very similar rights and entitlements as those permitted to stay on humanitarian grounds: they are issued re-entry permit and Resident Cards, can participate in the national health insurance scheme (though not the pension), can benefit from medical and housing assistance. Children of asylum seekers (or asylum-seeking children) have the exactly same rights as Japanese children with regards to access to public education. In addition, destitute asylum seekers can receive assistance from RHQ to cover their daily subsistence, housing costs, and medical costs, based upon the funding from the Ministry of Foreign Affairs. RHQ has also provided emergency shelters for destitute asylum seekers since 2003 (FWEAP 2008: 22). There are strict examinations of eligibility by RHQ for all of this assistance. With the number of asylum seekers increasing in recent years, the eligibility criteria for assistance have become stricter, and the

Refugees and other displaced persons

137

examinations have taken longer (often several months) (Asakawa 2013: 399; Iwata 2011: 10). What is probably the most noteworthy is that lawfully staying asylum seekers with legal status may apply for a work permit and engage in employment once six months have passed since their asylum application. It is often alleged that this is why the number of asylum applications has increased in recent years (see Table 10.1), particularly from foreign nationals who lawfully enter Japan as short-term visitors, foreign students, or foreign trainees. For, the lawfully staying asylum seekers who hold the residential status of designated activities have no restriction on their work once permitted, while short-term visitors are not allowed to work and there are some restrictions on work for foreign students and foreign trainees.6 Once they are permitted to work, they also qualify for the entire range of labour rights, including access to public employment services and compensation for work related accidents. At the same time, lawfully staying asylum seekers may not invite their family members to Japan, and they are unable to access the integration assistance provided by RHQ.

Unlawfully staying asylum seekers Unsurprisingly, unlawfully staying asylum seekers enjoy the least rights and entitlements among all forced migrants in Japan. In particular, they can be detained, and while they can apply for provisional release (kariho-men-kyoka), this involves a cumbersome procedure, securing a guarantor, and making a guarantee deposit similar to bail. Provisional release is subject to the discretion of the Director of the Immigration Detention Centre or a supervising Immigration Inspector (Art.54 of ICRRA). While on provisional release, they must report to the designated local Immigration Bureau, in principle, once a month. There are restrictions on their movements even to other prefectures, and, obviously, they cannot travel abroad. The only way for them to leave Japan is deportation (or Assisted Voluntary Return (AVR)7), although deportation procedures are suspended for asylum seekers under Art.61–2-6 (iii) of the ICRRA. Asylum seekers without legal status have no right to family reunification, cannot participate in national health insurance or pension schemes (although they may receive assistance for medical costs related to delivery). They have no entitlement to income support or public housing. Most importantly, they have no right to work. Legally speaking, they are entitled to participate in the unemployment insurance scheme and to compensation in work related accidents, although their employment is against the law and such monetary compensation rarely materialises. Asylum seekers without legal status are entitled to the RHQ assistance in cases of destitution, though, as noted earlier, eligibility criteria are getting stricter. They of course have no access to the integration assistance provided by RHQ. Children of unlawfully staying asylum seekers have the same rights to education as Japanese children, although the foreign parents have no legal obligation to send them to schools in Japan, as mentioned earlier. Since June 2004, based upon a revision to the ICRRA, unlawfully staying asylum seekers may apply for a residential status called ‘Provisional Stay’ (karitaizai) for six months renewable if they meet various conditions, including that

138 Naoko Hashimoto they had lodged their asylum claim within six months of their arrival in Japan, and that they entered Japan directly from their country of origin. The difference in rights and entitlements between unlawfully staying asylum seekers and those with Provisional Stay is that the latter are not detained during the RSD procedure, and can access national health insurance. These two entitlements of course make a significant difference to many asylum seekers, although only 58 asylum seekers were granted Provisional Stay in 2016, due to the restrictive conditions (see Table 10.2).

Problems stemming from stratification The scrutiny of various rights and entitlements afforded to forced migrants in accordance with their residential status points to at least three issues. Firstly, this stratification has led to a sense of inequality and unfairness amongst forced migrants seeking refuge in Japan, some of whom have come from similar backgrounds or even the same ethnic group. As discussed earlier, Indo-Chinese refugees who were admitted to Japan as prima facie refugees enjoyed easier access to Table 10.2 Stratification of rights among different categories of forced migrants Rights & Entitlements

Convention/ Indo-C/RST Refugees

Special Permit to stay on HG

Asylum-seekers (lawfully staying)

Asylum-seekers (unlawfully staying)

Residential Status

Long-term residence (5yrs)

‘Designated activities’ (1yr)

‘Designated activities (6mnts)

Detention / provisional release

Family Reunification

◎

△

×

Travel Abroad

RTD for Conv. R Re-entry permits

Re-entry permits

Re-entry permits

× No

National Health Insurance

◎

◎

◎

×

Employment

◎ ◎ ◎ ◎

◎ ◎ ◎ △

△ ◎ ◎ △

×

◎

×

×

×

◎

◎

Public Housing Education Welfare Allowance Public Integration Assistance Protection grant & shelter (for A/S)

N/A

N/A

×

◎ ×

Source: Author. Based upon information provided by the Japanese Government and FWEAP

Refugees and other displaced persons

139

their rights and entitlements than refugees granted Convention refugee status, at least between 1982 and 2003, by virtue of RHQ integration assistance. In more recent years, Myanmar refugees resettling from Thailand or Malaysia are provided with predeparture orientation, three or five years’ long-term residential permits granted immediately upon arrival, and the full-fledged six-month RHQ integration course. On the other hand, the vast majority of Myanmar asylum seekers who lodged asylum claims upon arrival in Japan have had to endure a precarious life during the RSD procedure for a number of years. It is true that such spontaneous asylum seekers who eventually obtained the Convention refugee status can enjoy the same integration course as provided for the resettlement refugees by RHQ. However, a large number of asylum seekers end up being granted Special Permission for Stay on humanitarian grounds without access to such integration assistance. This has generated a sense of unfairness amongst those who have similar backgrounds, as their treatment varies significantly depending upon the ways in which they entered Japan. Secondly, there is no ‘middle ground’ residential status between Convention refugee status and Special Permission for Stay on humanitarian grounds. Japanese refugee protection policy does not (yet) have a measure equivalent to subsidiary protection as provided for in the European Union’s (recast) Qualification Directive, for instance. Many of those fleeing situations of indiscriminate violence under international or internal armed conflicts have been granted permission to stay on humanitarian grounds, and while this status guarantees them lawful stay, they are left on their own, without access to the integration assistance provided by RHQ. This is a stark difference with the rights and entitlements guaranteed for those with the EU subsidiary protection status, which are nearly equivalent to those for Convention refugees. In December 2014, the Ministry of Justice’s Task Force on RSD, composed of several refugee law experts, put forward a recommendation to introduce a new form of protection with specific reference to the EU’s subsidiary protection (Ho-mu-sho- 2014: 9). However, this has yet to materialise. Thirdly, as is the case with any other country, relatively comprehensive rights and entitlements statutorily provided at least for forced migrants lawfully staying in Japan do not automatically guarantee actual enjoyment of those rights. Perhaps one of the clearest examples for such gaps is the right to education. As reiterated earlier, all foreign children, regardless of their nationality or residential status, have exactly the same rights to education as Japanese children. Although foreign adults have no legal duty to make their children enrol in schools under the Japanese Constitution, there is no legal restriction on any foreign children’s attendance to any school in the country. Nevertheless, a number of practical hurdles hamper the full exercise of their right to education, including language barriers, racial prejudice and discrimination, difficulties in passing entrance exams to high schools or universities, and high tuition fees for high schools and universities, to name a few. Particularly since the introduction of the new Residential Card system, foreign nationals without legal status (including asylum seekers) are no longer registered at local municipalities, and therefore no longer automatically receive notifications regarding local schools, immunisation programmes, health service for expecting mothers, and other such public services

140 Naoko Hashimoto that are administered at the municipal level. In addition, admission to public schools is in practice largely left to the discretion of the school principal or the local education board, and some schools are extremely reluctant to enrol foreign children out of fear of increasing burden on school teachers who are often not accustomed to dealing with children with migration backgrounds. Against this background, some NGOs have started to provide private educational assistance, and there are also scholarships provided by some NGOs and UNHCR in recent years. Nevertheless, these opportunities are extremely limited, and cannot be a substitute for adequate public measures.

Conclusion As has been seen, the more regular, official, and lawful residential status the forced migrants have, the wider rights and entitlements they are guaranteed with. This is nothing necessarily novel, and such hierarchical structure was already constructed in the Refugee Convention. In addition, it is notable that forced migrants are granted wider rights and entitlements more easily in cases when their profiles are examined and their admission authorised prior to their arrival to Japan, such as Indo-Chinese refugees and resettlement refugees. The Japanese authorities do not appear overly concerned whether or not the prospective foreign resident fulfils their strict interpretation of the refugee definition under the Refugee Convention, as far as s/he is pre-examined in UNHCR’s prima facie refugee recognition. The only discernible logic behind this is the state’s perceived imperative to manage migration and control its borders (Hashimoto 2018b). This migration management logic synchronises with the recent global trend, in which states perceive those who stay behind in refugee camps and patiently wait for their turn to be admitted for resettlement as ‘real/good refugees’ (Szczepanik 2016), while those who resort to their own agency and reach spontaneously and irregularly are perceived as ‘fake/bad refugees’. In practical terms, the increasing utilisation of resettlement may allow more chances for extremely vulnerable displaced persons to access international protection. It certainly facilitates overcoming one of the fundamental shortcomings of the current refugee protection regime, namely that it relies on the individuals’ ability to leave their country of origin. Nevertheless, harsh treatment and de facto penalisation of irregularly and spontaneously arriving asylum seekers violate the spirit, if not the letter, of Art.31 of the Refugee Convention. In a similar vein, the increasing resort to alternative pathways and other forms of ‘humanitarian admission’ is a mixed blessing: it may offer physical protection in a timely and flexible manner for wider beneficiaries, but at the same time it risks diluting the rights guaranteed to refugees under the Refugee Convention. Those of us who endeavour to protect the institution of asylum and refugees’ rights must maintain a critical eye on these trends.

Notes 1 This chapter only deals with foreign nationals forcibly displaced to Japan, although Japan has hundreds of thousands of internally displaced populations who have yet to find their

Refugees and other displaced persons

2 3 4

5

6

7

141

durable solutions mainly due to natural disasters and the nuclear power plant accident in Fukushima in 2011. The extension of the duration of the long-term resident permit from three to five years had nothing to do with the refugee policy; it was in the context of the larger immigration policy in an effort to attract more highly skilled migrants. The same issue was pointed out by the United Nations Committee on the Elimination of Racial Discrimination in paragraph 19 of its concluding observation issued in April 2001 (CERD/C/304/Add.114). The replacement of the Alien Registration System with the Residential Card System has put irregularly staying asylum seekers in a more disadvantaged position, as they are no longer registered with any local municipality which used to provide basic administrative service in terms of compulsory education, immunisation, and basic health care to all residents within the municipality regardless of nationality or residential status. There are huge controversies in Japan over whether or not lawfully staying foreign residents are legally entitled to the public social welfare assistance. The Supreme Court ruled on 18 July 2014 that the Law of Welfare Allowance guaranteed the public social welfare assistance only for Japanese nationals. But the judgment did not deny the possibility for foreign nationals to access welfare assistance. The current provision of the public social welfare assistance to foreign nationals is based upon the Ordinance issued by the Minister of Health, Labour and Welfare in 1954, entitled ‘Welfare Assistance Measures for Destitute Foreign Nationals’ as a temporary administrative measure. The decision to grant the assistance for foreign residents is often left to the discretion of each municipality. Due to the significant increase in the asylum applications from foreigners with a regular residential status whom the authority suspects to have lodged asylum applications for the purpose of employment, some restrictions on their work permit were introduced in January 2018.　 In 2014, International Organization for Migration (IOM) and the Immigration Bureau launched an AVR project, but asylum seekers must officially withdraw their asylum application for being eligible for the AVR.

Bibliography Arakaki, Osamu: 2008, Refugee Law and Practice in Japan, Ashgate. Asakawa, Takashi: 2013, ‘Nihon no Uchi heno Nanmin Seisakuno Tokucho-’ [Characteristics of Japan’s “domestic” refugee policies], Yokohama Kokusai Keizai Ho-gaku, vol. 21, no. 3, March 2013, at 377–409. FWEAP [Foundation for the Welfare and Education of the Asian People]: 2008, ‘A walk through history – 40 years of the foundation, 30 years of the refugee assistance headquarters’, Ai, December 2008. FWEAP [Foundation for the Welfare and Education of the Asian People]: 2017, Ai, vol.40, March 2017, at 41–46. Gaimu-sho-: 2016, ‘G7 Iseshima Samitto ni Muketa Wagakuni no Omona Ko-ken Saku’ [Japan’s Main Commitments Towards the G7 Ise-Shima Summit], May 2016. Retrieved on 28 November 2017 from: www.mofa.go.jp/mofaj/files/000158289.pdf. Hashimoto, Naoko: 2018a, ‘Why does Japan recognise so few refugees?’, Blog Post for Refugee Law Initiative, University of London, 1 May 2018. Retrieved on 12 August 2018 from: https://rli.blogs.sas.ac.uk/2018/05/01/why-does-japan-recognise-so-few- refugees/. Hashimoto, Naoko: 2018b, ‘Refugee Resettlement as an Alternative to Asylum’, Refugee Survey Quarterly, vol. 27, issue 2, 2018, at 162–186. Hathaway, James: 2005, The Rights of Refugees Under International Law, Cambridge University Press.

142 Naoko Hashimoto Ho-mu-sho-: 2014, Dairokuji Shutsunyu-koku Kanriseisaku Kondankai: Nanmin Nintei Seido ni Kansuru Senmon Bukai [Expert Task Force on RSD of the Sixth Discussion Group on Immigration Policy], ‘Nanmin Nintei Seido no Minaoshino Ho-ko-sei ni kansuru KentoKekka (houkoku)’ [Results of the Consideration on the Direction of Reconsidering the RSD (report)], December 2014. Retrieved on 26 November 2017 from: www.moj.go. jp/nyuukokukanri/kouhou/nyukan_nyukan41.html. Ho-mu-sho-, Nyu-koku Kanri Kyoku: 2017, ‘Heisei 28 nen ni okeru nanmin ninteisha su- toni tsuite’ [Press Release on the numbers of refugee recognition and others during 2016] on 24 March 2017. Retrieved on 28 November 2017 from: www.moj.go.jp/nyuuko kukanri/kouhou/nyuukokukanri03_00122.html. Immigration Bureau, Ministry of Justice: 2016, ‘A guide to the procedure for recognition of refugee status’. Retrieved on 20 November 2017 from: www.immi-moj.go.jp/tetuduki/ nanmin/pdf/english.pdf. Immigration Bureau, Ministry of Justice, Japan: 2018, ‘Waga Kuni ni Okeru Nanminhigo no Jyokyo to’ [The Status of Refugee Protection in Japan]. Retrieved on 11 January 2019 from http://www.moj.go.jp/content/001254269.pdf. Iwata, Yoko: 2011, ‘Wagakuni no Nanmin Nintei Seidono Genjyo- to Ronten’ [The Current Situation and Debates of the Refugee Status Determination System in Japan], Kokuritsu Kokkai Toshokan [The National Diet Library] Issue Brief, no.710, at 1–11. Japan Association for Refugees: 2013, ‘To those who wish to apply for refugee status’, March 2013. Retrieved on 20 November 2017 from: www.refugee.or.jp/for_refugees/ tothose/tothose_english_1303.pdf Jiji tsu-shin: 2017, ‘Jaika, Shiria Nanmin Ryu-gakusei Ukeire’ [JICA to Admit Syrian Refugee Students] on 19 August 2017. Retrieved on 15 November 2017 from: www.jiji. com/jc/article?k=2017081900399. MPI Europe: 2017, ‘Tracing the channels refugees use to seek protection in Europe’, September 2017. Retrieved on 15 November 2017 from: www.migrationpolicy.org/ research/tracing-channels-refugees-use-seek-protection-europe. Naikaku Kambo-: 1980 and 1982, ‘Indoshina Nanmin no Genjyo- to Kokunai Engo’ [The Situation of Indo-Chinese Refugees and Domestic Assistance for Them], 20 October 1980 and March 1982. Naikaku Kambo-: 1996, ‘Indoshina Nanmin Ukeire no Ayumi to Tembou’ [Admission of Indo-Chinese Refugees and its Prospects]. Nanmin Jigyo- Hombu: 2017, ‘Nihon no Nanmin Ukeire’ [Japan’s Admission of Refugees] as of 31 March 2017. Retrieved on 27 December 2017 from: www.rhq.gr.jp/japanese/ know/ukeire.htm. Oie, Shigeo: 2017, ‘Shiria Nanmin to Indoshina Nanmin’ [Syrian Refugees and Indo-Chinese Refugees]. Seizan-sha. Szczepanik, Marta: 2016, ‘The “good” and “bad” refugees? Imagined refugeehood(s) in the media coverage of the migration crisis’, Journal of Identity and Migration Studies, vol. 10, no. 2, 2016, at 23–33. Tometten, Christoph: 2017, ‘Germany’s “legal entry” framework for Syrian refugees – a tool for containment?’, Oxford Monitor of Forced Migration. Retrieved on 31 October 2017 from: http://oxmofm.com/germanys-legal-entry/. UNHCR: 2000, ‘The state of the world’s refugees 2000: fifty years of humanitarian action’, January 2000. Retrieved on 1 November 2017 from: www.unhcr.org/afr/ publications/sowr/4a4c754a9/state-worlds-refugees-2000-fifty-years-humanitarianaction.html.

11 Japan’s military sexual slavery Seeking reparations as on-going human rights violations Mina Watanabe

Introduction Japan’s military sexual slavery, euphemistically called the ‘comfort women’ system, is a system under which tens of thousands of girls and women in the Asia-Pacific region were forced into sexual slavery by the Japanese imperial military prior to and during WWII.1 In the early 1990s, ‘comfort women’ survivors from the AsiaPacific region broke 50 years of silence and testified about their experiences at the hands of Japan’s military. ‘Comfort stations’ were established in almost all regions invaded and occupied by the Japanese military throughout the Asia-Pacific region. The women and girls sent to these ‘stations’ were either abducted or recruited through various kinds of deception: some were enticed by brokers with promises of good jobs, while others were forcibly taken by soldiers during battle. Regardless of how they were recruited, all were then plunged into a nightmare of constant rape at the hands of Japanese soldiers. Some endured this for a few days or months, while others were trapped for years. After Japan’s defeat, women and girls were released or abandoned. Some managed to return home while others stayed in the area where they had been captured. Nearly all, however, began a life of struggle against poverty, disease, psychological trauma and alienation from their communities. Japan’s system of military sexual slavery, which should be understood as war crimes and crimes against humanity, was not properly tried at the International Military Tribunal for the Far East after the war. It was presumably difficult for victims/survivors to talk about the sexual violence they endured at the hands of foreign military during WWII while their communities continued to suffer in other armed conflicts or under dictatorships during the Cold War. In the 1990s, however, survivors from the Republic of Korea (ROK), the Democratic People’s Republic of Korea (DPRK), China, Taiwan, the Philippines, the Netherlands, Indonesia, Malaysia and East Timor finally came forward to tell the truth.2 It has been more than 25 years since the victims/survivors of Japan’s military sexual slavery first testified and demanded reparation for the human rights violation they had suffered. This issue has attracted historians scholars from a variety of fields such as gender studies, human rights law, or international politics. In tribute

144 Mina Watanabe to the late Sir Nigel Rodley,3 an honourable chair of the UN Human Rights Committee, the following discussion will focus on how UN human rights institutions, especially treaty bodies, have responded to Japan’s military sexual slavery. By examining concluding observations of these treaty bodies, this chapter will show how the suffering of ‘comfort women’ survivors, once viewed as an issue of the past, has come to be viewed as current, on-going issue. To help in understanding the background of these developments, this chapter will also provide an overview of Japan’s basic ‘comfort women’ policies.

1 The beginning: women’s movement against sexual crimes and impunity During the 1990s, violence against women became a focus of the global women’s movement. The 1990s was also the decade when the victims/survivors of Japan’s military sexual slavery – perhaps encouraged by the women’s movements in various countries – began to come forward with their testimonies. The courage of these women who spoke out after 50 years of silence was received with respect by the global women’s movement, which was working to stop violence against women. The first UN conference in which the survivors of Japan’s military sexual slavery participated was the UN World Conference on Human Rights held in Vienna in June 1993, well-known for its slogan, ‘women’s rights are human rights.’ The Vienna conference was held during the bitter ethnic conflict that gripped the former Yugoslavia, where women were subject to rape and sexual slavery as weapons of war. Organised by women’s NGOs, a symposium focused on the ‘comfort women’ issue was held parallel to the UN conference. Here, testimonies were made by three ‘comfort women’ issue survivors – Kim Bok-dong from the ROK, Chan Su-wol from the DPRK and Julia Porras from the Philippines. These concrete testimonies of sexual enslavement at the hands of the Japanese military 50 years earlier were strikingly similar to the sexual violence suffered by women during present armed conflicts, in terms of both the ways in which it is perpetrated and its means and effects on the victims. The Vienna Declaration and Programme of Action, the official outcome document adopted by UN member states at the Vienna conference, for the first time proclaimed of sexual violence in armed conflict situations that: violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response. (Vienna 1993: para. 38) The global momentum aimed at ending violence against women saw the UN General Assembly adopt the ‘Declaration on the Elimination of Violence Against

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Women’ in December 1993, with concern for this issue continuing through to the fourth UN World Conference on Women held in Beijing in 1995. Marking the 50th anniversary of the end of the war, this was the first women’s conference held in Asia. More than 30,000 women and men gathered for the NGO forum held parallel to the conference, with violence against women in conflict situations one of the key issues addressed in the workshops. The outcome document, Beijing Platform for Action, identified ‘Women and Armed Conflict’ as one of its 12 strategic objectives, and called on governments to: take actions to undertake a full investigation of all acts of violence against women committed during war, including rape, in particular systematic rape, forced prostitution and other forms of indecent assault and sexual slavery; prosecute all criminals responsible for war crimes against women and provide full redress to women victims. (Beijing Declaration and Platform for Action 1995: para. 145) Women have long demanded that the UN adequately integrate the rights of women into the human rights mechanism of the United Nations and in 1994, the ‘Special Rapporteur on Violence against Women, its Causes and Consequences’ was appointed at the 50th session of the Commission on Human Rights. Choosing the ‘comfort women’ issue as an example of state violence against women, the first special rapporteur, Ms. Radhika Coomaraswamy, made country visits to the ROK, the DPRK and Japan to research the issue and to interview victims/survivors. She submitted her report to the Commission on Human Rights in 1996. As the first UN report which specifically focused on the ‘comfort women’ issue, this document recommended that the government of Japan accept legal responsibility and compensate the victims (CHR 1996: para. 137). The ‘comfort women’ issue was also brought to the UN Sub-Commission on the Promotion and Protection of Human Rights. Ms. Gay McDougall, the ‘Special Rapporteur on the issue of Systematic Rape, Sexual Slavery, and Slavery-like Practices in Armed Conflict,’ took up the issue and provided a legal analysis based on the facts that had been established by the government of Japan. Submitted in 1998 as an appendix to the final report on ‘Systematic rape, sexual slavery and slavery-like practices during armed conflict’, her analysis recommended that the government of Japan initiate criminal prosecutions and ensure legal compensation (Sub-Commission 1998: paras 63–66). It became increasingly clear that in order to end the impunity of violence against women in armed conflict situations, punishing the perpetrators was absolutely essential. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), both established by the UN Security Council in the mid-1990s, had begun to prosecute the perpetrators of the crimes of rape and sexual slavery. Although these tribunals were established ad-hoc, there were growing calls for the establishment of a permanent international criminal court to address such crimes. In 1998, the Rome Statute for the International Criminal Court (ICC) was adopted, with rape, sexual

146 Mina Watanabe slavery, enforced prostitution, forced pregnancy, enforced sterilisation, of sexual violence of comparable gravity determined as constituting crimes against humanity and war crimes (Rome Statute 1998: art. 7–8). Professor Rhonda Copelon, a leading figure of the ‘Women’s Caucus for Gender Justice’ which campaigned to have gender crimes included in the Rome Statute, emphasised that testimonies by ‘comfort women’ victims/survivors had contributed greatly to providing firm ground for the elements of the crimes of sexual slavery. However, the government of Japan made no effort to investigate or prosecute crimes of sexual slavery by the Japanese military. A number of survivors of ROK visited the Tokyo District Public Prosecutor’s Office in 1994 to lodge a complaint for investigation, but the Office declined to accept the women’s complaints. In response to strong calls from victims/survivors for justice, after three-year preparation the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery was held in December 2000 in Tokyo. This was a tribunal initiated by global civil society, convened because the state had failed to respond adequately to the issue. Sixty-four survivors from eight victimised countries took part in the tribunal, and the prosecutors from each country named those responsible for the crimes against women they represented. The tribunal’s final judgment, delivered in December 2001, in The Hague, the Netherlands, found that the accused – ten high ranking officials of the Japanese Empire, including Emperor Hirohito – were guilty of crimes against humanity. The judgment also announced that the Japanese government still had an international legal obligation to provide reparation for the victims.

2 Japan’s reaction The government Although the existence of ‘comfort stations’ in war zones was well-known to former soldiers, and books had been written on the ‘comfort women’ issue, during the 50 years after the war, no survivors had sought to hold the Japanese government accountable for the sexual enslavement they had suffered. On 6 June 1990, Moto’oka Shoji, a member of Japan’s House of Councillors, put questions to the government during a Diet session regarding ‘comfort women’ records. This was immediately after the May visit to Japan by Roh Tae-woo, the first democratically elected president of the ROK. The government’s reply was that ‘old people say that private brokers took the women along with the military. We therefore cannot engage in fact-finding’ (Sangiin 1990: 6). Outraged by these denials by the Japanese government, Kim Haksun, a survivor of the ‘comfort women’ system from the ROK, broke her long silence and came forward on 14 August 1991 to testify about her experiences. In December of the same year, she came to Japan to file a lawsuit in Japanese courts against the Japanese government and to demand an apology and compensation. One month later, in January 1992, official military records, that clearly indicated the involvement of the Japanese military in ‘comfort stations’ were found by Professor Yoshimi Yoshiaki, who had conducted research at the National

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Institute for Defense Studies as an independent historian. In August 1993, after 20 months of research, the government of Japan announced the results of fact-finding it had undertaken. Although these efforts remained insufficient, the government had at least interviewed 16 Korean survivors and disclosed more than 200 official documents. As a result, the Chief Cabinet Secretary Kono Yohei delivered a statement which declared that ‘comfort stations were operated in response to the request of the military authorities of the day,’ and that ‘in many cases [women] were recruited against their own will, through coaxing, coercion, etc., and that, at times, administrative/military personnel directly took part in the recruitments.’ This statement, the so-called Kono Statement, makes clear that the ‘women lived in misery at comfort stations under a coercive atmosphere’ (Gaimu-shou 1993). However, the Government of Japan maintained its position that the issue of claims had been settled with post-war treaties, including the 1952 San Francisco Peace Treaty and other bilateral agreements signed after WWII. While refusing to accept legal responsibility for compensation, the Japanese government conceded a ‘moral obligation’ to ‘comfort women’ victims. In 1995, the year that marked the 50th anniversary of the end of WWII, the Japanese government accordingly established a private fund known as the ‘Asian Women’s Fund’ (AWF), which collected donations from Japan’s private sector and distributed these monies to victims. This ‘charity’ scheme, however, was rejected by the survivors who demanded legitimate legal compensation. These women criticised Japan’s response as a further humiliation, in addition to the sexual slavery they had endured. While more ‘comfort women’ survivors came forward in the late 1990s from other countries in the Asia-Pacific, payments by the AWF were limited to five countries only, namely the ROK, Taiwan, the Philippines, Indonesia and the Netherlands. Furthermore, conducted in a highly impromptu manner, the scheme was complicated by the implementation of different processes for each country. The amount of money distributed to individual survivors and the system of distribution also differed in each country. In Indonesia, for example, victims were not officially identified. Instead of providing monies directly to individuals, the Japanese government therefore offered funds to the Suharto regime to build housing for the elderly. As a result, the AWF’s scheme provided victims no sense of justice or fair reparations. It rather created confusion and led to divisions amongst the survivors themselves as well as their supporters. In addition, while the Japanese government insisted that it had contributed 4.8 billion yen for the project from government coffers, less than one-sixth of this money went directly to the victims. The remaining money was used for AWF management and other activities such as hosting conferences. A number of UN human rights institutions have pointed out that the AWF was not a sufficient solution to the issue.4 The courts By the late 1990s, following lawsuits filed by survivors in the ROK, a total of ten cases – two from the ROK, one from the Philippines, four from China, one from the Netherlands, one from Taiwan and one by a Zainichi Korean resident in

148 Mina Watanabe Japan – had been filed against the government of Japan in Japanese domestic courts. In 1998, a decision by the Shimonoseki Branch of the Yamaguchi District Court gave Korean plaintiffs a partial victory. The court accepted that the government was responsible for the absence of legislation after 1993, the year in which the government officially acknowledged its involvement, and ordered that compensation be paid to the victimised women plaintiffs for the government’s ‘inaction’ or ‘failure’ during that period. Rather than offering a legislative or administrative response, the government of Japan instantly lodged an appeal and contested the ruling exhaustively in court. The case was ultimately dismissed by the Supreme Court in March 2003. In eight of the ten cases filed by the victims/ survivors, the court found facts of damage as alleged by the plaintiffs. However, for all the ten cases, the women’s claims were finally dismissed by the Supreme Court on legal technical grounds, including the argument that individuals cannot rely on international law as the ground of their claims since it is laws between states, and other technical grounds including the statute of limitations and the principle of the immunity of the state at the time of the act concerned. All domestic remedy measures were exhausted by March 2010, and, since Japan has yet to accept the individual complaints procedures of any human rights treaties, the victims/survivors have been prevented from taking their cases to UN human rights treaty bodies. The Diet Facing criticisms of the Asian Women Fund, and cognisant of the 1998 judgment by the district court which awarded compensation for the lack of legislation, some legislators began drafting a bill to resolve the ‘comfort women’ issue. The government position that the issue of claims had been resolved through bilateral treaties of the post-war era was understood to mean that introducing legislation to compensate war victims would be a violation of those treaties. However, lawmakers were encouraged by the statement of Chief Cabinet Secretary Nonaka Hiromu, who confirmed in a 1999 Diet session that such legislation would not constitute a breach of any treaty obligations (Sangiin 1999: 17). After negotiations among the three opposition parties – the Democratic Party of Japan, the Japanese Communist Party and the Social Democratic Party – a single bill was drafted which, on 31 March 2001, was jointly submitted by the three parties to the House of Councillors as the ‘Promotion of Resolution for Issues concerning Victims of Wartime Sexual Coercion Act (Bill).’ Requests by opposition parties to invite survivors to testify before the House were repeatedly refused. Although introduced on eight separate occasions by 2008, the bill was defeated each time by opposition from the ruling Liberal Democratic Party.

3 Slow reactions by the treaty bodies During the 1990s, compared to UN human rights mechanisms focusing on women’s rights, the response from the bodies monitoring the application of UN human rights treaties to the issue of Japan’s military sexual slavery was relatively slow.

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The first treaty body to receive NGO information on the ‘comfort women’ issue was the Human Rights Committee. Bar associations in Japan submitted a report on the ‘comfort women’ issue, arguing that, given its unequal treatment of ‘comfort women,’ the state party was not complying with Article 26 [equality before the law] of the International Covenant on Civil and Political Rights (Totsuka 1999: 11–12). The issue was taken up during the third periodic review of Japan’s report in October 1993. However, neither the concluding observations for this review, nor those for the subsequent review in 1998 referred to the ‘comfort women.’ In 1994, the Committee on the Elimination of Discrimination against Women (CEDAW) became the first treaty body to refer to the ‘comfort women’ issue in its concluding observations. In its review of Japan, Ms. Silvia Rose Cartwright, a member of CEDAW, argued that ‘Asian and other women who had been forced into prostitution during the Second World War should not have to seek compensation on a case-by-case basis and be re-traumatized’ (CEDAW 1994: para. 72). In its observations on violence against women, the CEDAW recommended that Japan take specific and effective measures to address ‘war-related crimes’ and to inform the Committee on the measures taken in the next report (CEDAW 1995: para. 635). In 2001, a group of Japanese lawyers who represented the Filipino plaintiffs in the court of Japan also made efforts to bring a survivor to address the UN Committee on Economic, Social and Cultural Rights (CESCR) during the review of Japan’s report. The concluding observations of the Committee expressed concern that ‘the compensation offered to wartime “comfort women” by the Asian Women’s Fund, which is primarily financed through private funding, has not been deemed an acceptable measure by the women concerned.’ The Committee therefore strongly recommended that: the State party find an appropriate arrangement, in consultation with the organizations representing the “comfort women,” on ways and means to compensate the victims in a manner that will meet their expectations, before it is too late to do so. (CESCR 2001: paras 26 and 53) In 2003, the CEDAW reviewed the subsequent two state reports (the fourth and fifth periodic reports). The fifth periodic report of Japan began by asserting that ‘the issue known as “wartime comfort women” has no direct bearing on this convention,’ arguing that, since ‘comfort women’ events occurred before the ratification of the CEDAW, the matter lay outside the Committee’s purview (CEDAW 2002: 28). In response, the CEDAW simply urged Japan to ‘endeavour to find a lasting solution to the issue of “wartime comfort women”’ (CEDAW 2003: para. 362). As explained above, from the 1990s to the early 2000s, UN human rights treaty bodies gave the matter limited attention. Their recommendations were not sufficiently concrete. Human rights experts as well as international human rights organisations sometimes noted that they were too busy with ‘current’ violations.

150 Mina Watanabe The ‘comfort women’ issue was regarded as a ‘past’ violation of human rights, rather than an ‘on-going’ violation, until the denials of historical events worsened in 2007.

4 Denials prompt international criticism On 1 March 2007, Prime Minister Abe Shinzo declared to the press that there was no evidence of the forceful removal or capture by the military of ‘comfort women.’ This denial of the events by the incumbent Prime Minister of Japan circulated rapidly around the world through the mainstream media. Outraged by these arrant denials from the leader of the perpetrator state, victims/survivors from respective countries held demonstrations in front of Japanese embassies and labelled Abe ‘a liar.’ Rather than retract his statement, however, the Prime Minister announced the 17 March 2007 cabinet decision that: no reference was found that directly indicates so-called “coercion” [carried out] by the military or constituted authorities among the materials the government found prior to the day on which its research results were disclosed [in the 4 August, 1993 Kono Statement]. (Naikaku 2007) Abe’s position also alerted United States Congress members. On 14 February 2007, two weeks prior to Abe’s declaration, public hearings of the Asia-Pacific Global Environment Subcommittee, the House Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment of the US House of Representatives, had considered resolution H. Res. 121 regarding justice for ‘comfort women’. Three ‘comfort women’ survivors, Lee Yong-soo and Kim Gun-ja from the ROK, and Jan Ruff-Oherne from the Netherlands/Australia, testified at the public hearing that they had been sexually enslaved at the hands of the Japanese military and coerced into ‘comfort stations.’ Abe’s contradictory statement was seen as a denial of the testimonies that the Congress members had heard themselves at the public hearings. H. Res. 121, calling on the Japanese government to deliver an unambiguous apology passed the US House of Representatives on 30 July 2007, in spite of intensive lobbying by the government of Japan to block the resolution. The adoption of the resolution in the US congress increased the momentum of the global movement for ‘justice for the comfort women.’ In 2004, Amnesty International launched its ‘Stop Violence against Women’ campaign, which included the ‘comfort women’ issue as one of the main current issues rather than merely a past violation in the Asia-Pacific region. In 2007, Amnesty further organised a speaking tour of ‘comfort women’ victims/survivors in several countries in Europe and in Canada, and published a comprehensive report on Japan’s military sexual slavery. Thanks to these campaigns, resolutions or motions in support of ‘comfort women’ passed the House of the Netherlands on 8 November 2007, the House of Commons of Canada on 28 November 2007 and the European Parliament on 13 December 2007. Assemblies in victimised countries soon followed. Responding to

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calls from the international community, local assemblies in Japan also passed ‘ikensho’ or statements of opinion urging the government to act. Beginning with Takarazuka-city, Hyogo Prefecture, on 28 March 2008, more than 40 ikensho were adopted in local assemblies to urge the government of Japan to make a sincere resolution of the ‘comfort women’ issue.

5 Treaty bodies responded The state-led denials in Japan have clearly show that ‘comfort women’ survivors experience on-going human rights violations through the lack of official recognition and accountability. In May 2007, the Committee against Torture (CAT) reviewed the second periodic report of Japan, making reference to the ‘comfort women’ issue in two paragraphs of its concluding observations for the first time. In a paragraph regarding the statute of limitations, the committee recommended that Japan ‘review its rules and provisions on the statute of limitations so that acts of torture can be investigated, prosecuted and punished without time limitations’ (CAT 2007: para. 12). Regarding the paragraph on compensation and rehabilitation, the committee pointed out the survivors’ experience of ‘continuing abuse and re-traumatization’ as a result of Japan’s official denial of, and failure to disclose facts, failure to prosecute those criminally responsible, and failure to provide adequate rehabilitation to the victims (CAT 2007: para. 24). In 2008 during the review of the fifth periodic report of Japan, the Human Rights Committee (HRC) finally made reference to the ‘comfort women’ issue in its concluding observations. After pointing out the insufficiency of the AWF as a project financed by private donations, the Committee provided concise but comprehensive recommendations as follows: The State party should accept legal responsibility and apologize unreservedly for the “comfort women” system in a way that is acceptable to the majority of victims and restores their dignity, prosecute perpetrators who are still alive, take immediate and effective legislative and administrative measures to adequately compensate all survivors as a matter of right, educate students and the general public about the issue, and to refute and sanction any attempts to defame victims or to deny the events. (HRC 2008: para. 22) Rather than Article 26 [equality before the law], the Committee approached the issue of the ‘comfort women’ from the perspective of Articles 7 and 8 [prohibition of torture and slavery] of the Covenant, and strongly supported the rights of the survivors for reparation.

6 As denials continue, treaty bodies continue taking up The 2009 political regime change in Japan saw little policy change toward the ‘comfort women’ issue. In December 2012, returned to power with his allies for a

152 Mina Watanabe second time, Prime Minister Abe declared that he would retract the 1993 Kono Statement. With state-led revisionism growing in Japan, at a press conference in May 2013, Hashimoto To-ru, the mayor of Osaka, made the claim that ‘comfort women were necessary (for soldiers)’. The government of Japan made no attempt to refute these statements as recommended by the treaty bodies even though the mayor was a popular and influential political figure. Reviews of Japan’s report were scheduled consecutively by CAT and CESCR in 2013, and HRC and CERD in 2014. While the wording differed, each pointed out the Japanese government’s inadequacy in terms of acknowledging facts, prosecuting perpetrators, declassifying records, making an apology, providing compensation, providing education, and refuting denials. During this second administration, Abe has changed the diplomatic position of the Japanese government concerning the ‘comfort women’ issue. In addition to denying legal responsibility, the government now insists that ‘comfort women’ were not sex slaves, and that there is no evidence of forcible recruitment by the authorities. In the face of denials occurring in its own committee room, the HRC clarified its position on understanding the human rights violation over ‘comfort women’ in its 2014 concluding observations to Japan: The Committee is concerned by the State party’s contradictory position that the “comfort women” were not “forcibly deported” by Japanese military during wartime but that the “recruitment, transportation and management” of women in comfort stations was done in many cases against their will, through coercion and intimidation by the military or entities acting on behalf of the military. The Committee considers that any such acts carried out against the will of the victims are sufficient to consider them as human rights violations involving the direct legal responsibility of the State party. The Committee is also concerned about revictimization of the former “comfort women” by attacks on their reputations, including by public officials, and some that are encouraged by the State party’s equivocal position. The Committee takes into account information that all claims for reparation brought by victims before Japanese courts have been dismissed, and all complaints to seek criminal investigation and prosecution against perpetrators have been rejected on the ground of the statute of limitations. The Committee considers that this situation reflects ongoing violations of the victims’ human rights, as well as a lack of effective remedies available to them as victims of past human rights violations (arts. 2, 7 and 8). (HRC 2014: para 14) Concerns over Japan’s denial of the ‘comfort women’ issue grew. The UN High Commissioner for Human Rights, Navi Pillay, also issued a statement at the end of her term in August 2014. Pillay stressed that ‘this is not an issue relegated to history. It is a current issue, as human rights violations against these women continue to occur as long as their rights to justice and reparation are not realized.’ She

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further noted ‘the Office’s readiness to offer any necessary assistance’ (OHCHR 2014).

7 2015 Korea–Japan announcement and CEDAW On 28 December 2015, the Foreign Ministers of the ROK and Japan appeared together in a televised press conference to jointly announce that the ‘comfort women’ issue had been ‘finally and irreversibly’ resolved (hereafter the ‘announcement’).5 The agreed ‘announcement’ was reached without consultation with the victims/survivors of the ‘comfort women’ system, and there was no written document that survivors could approve or sign. Furthermore, Abe stated to the Diet that ‘this agreement does not mean that [we/Japanese Government] have admitted to, for instance, acts that constitute war crimes.’ He further asserted that ‘reports of sexual slavery or of 200,000 [victims] are not factual’ (Sangiin 2016b: 3). Foreign Minister Kishida also announced that ‘expressions such as “sex slaves” are contrary to the facts, and should not be used; this is the understanding of the Government of Japan’ (Sangiin 2016a: 13). Even though Kishida read an ‘apology’ by Abe at the ‘announcement,’ and although public money was provided, these denials once more created ambiguity regarding exactly what acts the government of Japan had apologised and provided money for. The first treaty body scheduled after the ‘announcement’ was the CEDAW. This body reviewed Japan in February 2016, at which time a government official again stated to the Committee that ‘comfort women’ were not sex slaves and that there were no ‘forced’ recruitments. Released in March, the concluding observations by the CEDAW were very lengthy and concrete compared to those of the past, which perhaps shows the degree of the Committee’s frustration with Japan. The observation regrets that the ‘announcement’ did not fully adopt a victimcentred approach and that Japan has not addressed its obligations under international human rights law towards ‘comfort women’ victims in other concerned countries. Further, the Committee objected to the state party’s claim that the ‘comfort women’ issue does not fall within its mandate, noting in response that ‘given the continued lack of effective remedies,’ the ‘comfort women’ issue has a continuing effect on the rights of victims/survivors. Observing that ‘it is not precluded ratione temporis from addressing such violations,’ the Committee recommended that the victims’ rights to truth, justice and reparations be ensured (CEDAW 2016: para. 29). The CEDAW finally articulated the position that, although the initial violation was conducted before ratification of the convention, given the ongoing human rights violations occurring as a result of no effective remedy measures being provided, the issue falls within the mandate of the committee.

Conclusion The victims/survivors of Japan’s military sexual slavery as well as their supporters have continued to bring the issue to UN human rights institutions since the early

154 Mina Watanabe 1990s. Because of their tireless advocacy, the UN special rapporteurs have produced two specified reports while the five UN human right treaty bodies, HRC, CEACR, CAT, CEDAW and CERD, have each addressed the issue and recommended a variety of remedial measures such as acknowledging the facts, prosecuting perpetrators, declassifying records, making apologies, providing compensation, educating younger generations and refuting denials. The cumulative effect of these recommendations demonstrates clearly that in the absence of effective remedies, the violation of the human rights of the victims continue; therefore, the responsibility of the state party under international human rights law is not discharged. The public testimonies of the survivors of Japan’s military sexual slavery and their demands for justice helped to establish not only new mechanisms and standards to end impunity of violence against women in armed conflict, but also in integrating gender-sensitive interpretation into human rights treaties as found in the changes and developments in concluding observations of treaty bodies dealing with issues whose initial violation took place 50 years ago. These developments will be a positive precedent in the future when dealing with victims/ survivors of gender-based violence during armed conflict, and give hope to those who cannot come forward immediately due to non-peaceful environments or fear of repercussions. One pressing task still remains to be done. The Japanese government must be made to implement the measures repeatedly recommended by UN human rights institutions. Otherwise, the world will be left with a negative precedent in which a government has evaded legal responsibility, and justice has failed to come to the victims/survivors of wartime military sexual slavery even after 25 years of struggle.

Notes 1 In this chapter, given their historical significance, the term ‘comfort women’ and ‘comfort stations’ will be used in quotation marks when referring to ‘Japan’s military sexual slaves’ and the ‘stations’ to which these women were sent. Needless to say, there was no comfort for victims/survivors in sexual servitude. Although the total number of victims is unknown, estimates by scholars range from 50,000 to 200,000 or more. 2 While official records show the existence of ‘comfort stations’ and the recruitment of local women, there are countries and regions, including Myanmar, Papua New Guinea, Palau, Guam, Saipan, India and Singapore, where survivors have not yet been able to come forward to demand reparation. Although there are also records and memoirs of Japanese women who were ‘comfort women,’ no survivor has yet come forward to demand reparations for human rights violations. 3 In this chapter, given and family names will be written in the order of the original language. All names and titles are of the time period under discussion. 4 UN Human Rights organs that have pointed out that the AWF was not an adequate reparation mechanism include HRC, CESCR, CEDAW, CAT, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the UN special rapporteurs quoted in this chapter. 5 The bilateral talks between the governments of the ROK and Japan commenced in 2011, after the delivery of the 30 August 2011 decision by the Constitutional Court of the ROK. In summary, this decision argued that, since the ROK government announced

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in 2005 that its interpretation of the ‘claims’ differs from that of the Japanese government, it is unconstitutional for the ROK not to take diplomatic measures for the rights of ‘comfort women’ pursuant to Article 3 of the Agreement on the Settlement of Problems Concerning the Property and Claims and the Economic Cooperation concluded between the ROK and Japan in 1965. After four years of diplomatic talks, the bilateral announcement was suddenly made public on 28 December 2015.

References Beijing Declaration and Platform for Action: 1995, Report of the Fourth World Conference on Women, 15 September, A/CONF.177/20/Rev.1. CAT [Committee against Torture]: 2007, Concluding Observations on the initial report of Japan, 3 August, CAT/C/JPN/CO/1. CEDAW [Committee on the Elimination of Discrimination against Women]: 1994, Committee on the Elimination of Discrimination against Women, Thirteenth session, Summary Record of the 248th Meeting, 10 March, CEDAW/C/SR.248. CEDAW [Committee on the Elimination of Discrimination against Women]: 1995, Report of the Committee on the Elimination of Discrimination against Women, Fourteenth session, General Assembly Official Records, Fiftieth Session, Supplement No. 38, 31 May, A/50/38. CEDAW [Committee on the Elimination of Discrimination against Women]: 2002, Fifth Periodic Report of States parties, Japan, 13 September, CEDAW/C/JPN/5. CEDAW [Committee on the Elimination of Discrimination against Women]: 2003, Report of the Committee on the Elimination of Discrimination against Women on its twentyninth session, General Assembly Official Records, Fifty-eighth Session, Supplement No. 38, 14 March, A/58/38. CEDAW [Committee on the Elimination of Discrimination against Women]: 2016, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Japan, 10 March, CEDAW/C/JPN/CO/7–8. CESCR [Committee on Economic, Social and Cultural Rights]: 2001, Concluding Observations of on the Second Periodic Report of Japan, 24 September, E/C.12/1/Add.67. CHR [Commission on Human Rights]: 1996, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, Report on the mission to the Democratic People’s Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, 4 January, E/CN.4/1996/ 53/Add.1. Gaimu-shou [Ministry of Foreign Affairs]: 1993, Statement by the Chief Cabinet Secretary Yohei Kono on the result of the study on the issue of “comfort women”4 August, Retrieved on 10 January 2018 from: www.mofa.go.jp/policy/women/fund/state9308.html HRC [Human Rights Committee]: 2008, Concluding Observations on the fifth periodic report of Japan, 18 December, CCPR/C/JPN/CO/5. HRC [Human Rights Committee]: 2014, Concluding Observations on the sixth periodic report of Japan, 20 August, CCPR/C/JPN/CO/6. Naikaku [Naikaku Shu-shitsu 166 dai 111 gou]: 2007, The Cabinet’s official reply in writing to the enquiry by the member of the House of Representatives. 17 March. OHCHR [Office of the United Nations High Commissioner for Human Rights]: 2014, Japan’s approach to the issue of “comfort women” causing further violations of victims’ human rights – Pillay, 6 August, Retrieved on 10 January 2018 from: www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14920&LangID=E

156 Mina Watanabe Rome Statute [Rome Statute of the International Criminal Court]: 1998, 17 July, A/ CONF.183/9. Sangiin [Sangiin Kessan-iinkai Kaigiroku]: 1990, Minutes of the Budget Committee, House of Councillors, 6 June. Sangiin [Sangiin Kessan-iinkai Kaigiroku]: 1999, Minutes of the Audit Committee, House of Councillors, 8 September Sangiin [Sangiin Kessan-iinkai Kaigiroku]: 2016a, Minutes of the Budget Committee, House of Councillors, 15 January. Sangiin [Sangiin Kessan-iinkai Kaigiroku]: 2016b, Minutes of the Budget Committee, House of Councillors, 18 January. Totsuka, Etsuro: 1999, Nihon ga Shiranai Sensou Sekinin [War Responsibility Japan does not know], Gendai Jinbun-sha. Sub-Commission [Sub-Commission on Prevention of Discrimination and Protection of Minorities]: 1998, Contemporary Forms of Slavery, Systematic rape, sexual slavery and slavery-like Practices during armed conflict, Final report submitted by Ms. Gay J. McDougall, Special Rapporteur, 22 June, E/CN.4/Sub.2/1998/13. Vienna [Vienna Declaration and Programme of Action]: 1993, Adopted at the UN World Conference on Human Rights in Vienna, 12 July, A/CONF.157/23.

12 Japan and the international human rights procedures The ‘han-nichi’ narrative Saul J. Takahashi

Introduction For many years, Japan dealt with international human rights bodies in a relatively superficial manner. Reports and other information are provided to the treaty bodies, and visits to the country by Special Procedures mandate holders are afforded appropriate co-operation. However, implementation of recommendations for improvement made by those bodies has been largely dismal, with most recommendations politely ignored. Many treaty bodies have expressed exasperation at the lack of meaningful commitment on the part of the government. Aside from the case of the Coomaraswamy report on ‘comfort women’, the government attitude towards international human rights bodies could have been described as polite but dismissive. This has changed dramatically over the past couple of years. Reactions towards any criticism of Japan, no matter how well founded, in particular by Special Procedures mandate holders, have often been swift and excessive. Like reports to the treaty bodies, rebuttals issued by the government are thin on substance – however, the aggressive nature in which mandate holders are subject to attack, even personal attack, is a new development, and arguably brings into question Japan’s commitment towards the international human rights regime. It is submitted that a new narrative is being promoted, by figures in the government and prominent right wing elements within Japan. It is quickly becoming a standing feature of the public discourse that criticism of Japan on the ‘comfort women’ issue, on any subject related to human rights, or on practically anything, is led by persons or organisations with a ‘han-nichi’ (‘anti-Japanese’) agenda – including left of centre journalists, lawyers, and human rights organisations in Japan. Not only do the ‘Japan bashers’ lurk in Korea and China, but, according to this narrative, as a fifth column in Japan as well. Coupled with the current Constitutional debate, and the recently enacted Conspiracy Act, which affords law enforcement sweeping powers to decide that an organisation (or group of people) is engaged in criminal activity, this narrative has potentially disastrous implications for the human rights movement in Japan. It should be noted at the outset that though this chapter will focus mainly on positions taken by the government, it will also touch on statements and lobbying

158 Saul J. Takahashi efforts by other political actors, including not only politicians but right wing ‘civil society’ organisations. Many of these organisations involve figures with loose, informal connections to the governing LDP, and have considerable influence over government positions.

International bodies: engagement with the treaty bodies Japan is state party to most of the core international human rights conventions. The country became state party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Economic Rights (ICESCR) in 1979 and to the Convention on the Elimination of Discrimination against Women (CEDAW) in 1985, with the Convention against Torture (CAT) and the International Convention against All Forms of Racial Discrimination (ICERD) ratified in 1999 and 1995 respectively. Japan has engaged with the treaty body process, but treaty bodies are increasingly pointing out that this engagement has in most cases not been meaningful. Recommendations of the treaty bodies are rarely acted upon by Japan, leading to a situation where the treaty bodies are compelled to repeat the same recommendations in successive reviews. For example, the Human Rights Committee (HRC) states at the outset of its Concluding Observations of Japan’s implementation of the ICCPR, in 2014, that the HRC ‘is concerned that many of the recommendations made after consideration of [Japan’s two previous state reports] have not been implemented … [Japan] should give effect to the recommendations adopted by the Committee’ (HRC 2014a: 2). The recommendations of the HRC repeatedly start with language such as ‘The Committee reiterates its recommendation … ’ ‘The Committee regrets that, despite its previous recommendations … ’ and ‘The Committee is concerned at the State party’s continuing refusal … ’ (HRC 2014a: 2, 3). Similar language is plentiful in the Concluding Observations of other main treaty bodies (CAT 2013: 1, CEDAW 2016: 1, CERD 2014). Overall, Japan’s state reports to the treaty bodies are bland assertions of government policy and translations of legislation in force. Attempts at explaining inaction on previous recommendations are often unsubstantive, and are even reproduced (sometimes word for word) in successive reports. Abolition of the death penalty ‘should be determined by each country at its discretion’ and, in Japan, ‘needs to be carefully examined in all respects’ (Government of Japan 2012: 20, see also Government of Japan 2007: 137–138). Accession to Optional Protocols or other procedures that would provide individuals to file individual complaints is the subject of ‘[continuing] serious consideration’ (Government of Japan 2012: 1, see also Government of Japan 2017c: 42; Government of Japan 2007: 21). Other times, the government simply ignores previous recommendations, providing no explanation in their reports as to why they were not acted upon, despite clear requests by the treaty bodies to do so (CERD 2014: 2). When more elaborate justifications are provided, they often strain credibility. The government argues that allowing lawyers to be present during the interrogation of criminal suspects would hamper the building of a relationship of trust

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between the interrogator and the suspect (Government of Japan: 2012: 25, 26), and, in the face of overwhelming evidence, that ‘Japanese police have always treated detainees with consideration with regard to human rights’ (Government of Japan 2015: 2). Despite being one of the wealthiest countries in the world, Japan asserts that building adequate detention facilities ‘would require a larger budget which would not be easy to achieve’ (Government of Japan 2014a: 19). Inmates sentenced to death are not informed of the date of their execution until the day before as otherwise ‘their peace of mind may be negatively affected and the notification could inflict excessive pain on them’ (Government of Japan 2015: 7). According to the government, the ‘comfort women’ had not been ‘forcefully taken away’, even though the government also admits that ‘in most cases, the process had taken place against their will’ (HRC 2014b: 3). Nigel Rodley, then Chairperson of the HRC, stated the point succinctly at the closing of the Committee’s review of Japan in 2014, stating that ‘the overwhelming impression was that, from one review to the next, the State party did not take account of the Committee’s concerns and recommendations.’ Using strong language unusual for the treaty bodies or for diplomatic circles in general, Rodley pointed in particular to the continuing use of ‘substitute prisons’, a system that facilitated ill treatment in pre-trial detention, stating that its ‘retention … despite its flagrant incompatibility with the [ICCPR] and repeated calls by the Committee and the international community, was particularly telling.’ Rodley also criticised the government’s intransigence regarding the ‘comfort women’ issue, calling the government’s logic ‘impenetrable’. Rodley concluded by stating that the ‘Committee recognised that Japan was, in many ways, a country that respected human rights … but it remained concerned by the persistence of serious problems’ (HRC 2014b: 3). This is not to argue that no progress at all has been made in human rights in Japan since the 1980s, or that what positive change has been made has been completely unrelated to the treaty body process. However, the point must be stressed: limited progress on some issues notwithstanding, Japan has simply failed to take action on most of the recommendations of the treaty bodies. The issue of compliance with treaty body recommendations has been raised in the Japanese parliament, only to be dismissed out of hand by the government, on the simple grounds that the treaty body recommendations are not binding (see e.g. Nichibenren 2013: 3). While strictly speaking this is of course true, the human rights treaty regime requires a meaningful and substantive dialogue with the treaty bodies. When a state party simply disregards the views of a treaty body, its commitment to the international human rights regime is open to question. Nevertheless, Japan’s stance towards the treaty bodies, and to the international human rights procedures in general, was as a rule hardly bellicose. The most recent review of Japan by CEDAW, however, in 2016, suggests that this may change. To examine this, it is necessary first to go back in time to the exception that proves the rule – the Coomaraswamy report.

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Coomaraswamy report and the ‘comfort women’ In 1995, Radhika Coomaraswamy, the Special Rapporteur on Violence against Women, its Causes and Consequences, visited Korea and Japan to gather information on the ‘comfort women’ issue. The report of her mission criticised the Japanese position that it held no legal responsibility towards the ‘comfort women’, and pointed to the government’s own inquiry that the military was involved in forcing Korean women to serve as sex slaves. Coomaraswamy urged the government to, inter alia, accept legal responsibility, to pay compensation to victims, and to prosecute perpetrators involved in the ‘comfort women’ system (Coomaraswamy 1996: 28, 29, 31, 32). Though clearly disagreeing with the government’s stance, it is difficult to characterise Coomaraswamy’s report as overly critical: she calls government statements accepting moral (though not legal) responsibility ‘a welcome beginning’ (Coomaraswamy 1996: 28) and, while noting that it cannot abdicate Japan from its legal responsibilities, calls the Asian Peace and Friendship Fund1 ‘welcome … from a moral perspective’ (Coomaraswamy 1996: 31). Nevertheless, the government’s reaction to the Coomaraswamy report was frenzied and severe. At the 1996 session of the Commission of Human Rights, the government distributed a 42-page rebuttal of the report, calling the Special Rapporteur’s approach to fact finding ‘insincere’ and the entire report ‘irresponsible and prejudiced … [the report] is not worthy of the title “investigation” … it is a twisting of history’. These strong terms are used repeatedly throughout the rebuttal, which warns that, were [the Commission] to adopt the report, [it] would ‘damage the trust of the international community in the system of Special Rapporteurs, and the Commission as a whole’ (Sankei Shimbun 2014a). The rebuttal is not entirely bluster: there are attempts to address Coomaraswamy on the substance, both regarding the facts she presented in her report and her interpretation of the law. Though most of the arguments of the government are questionable from the point of view of human rights law, the point is that there at least was an attempt at engaging on a substantive level. Nevertheless, straight away upon distribution, the rebuttal was subject to criticism for its extreme language and personal attacks on the Special Rapporteur, leading to the government immediately trying to physically re-collect the document. The government has since then refused to release the rebuttal (Abe 2016), though, in 2014, it was reproduced in full in the magazine Seiron, a monthly political commentary published by the right leaning broadsheet Sankei Shimbun, in an apparent attempt to force the government to take an even stronger stance on the ‘comfort women’ issue (Sankei Shimbun 2014a). Since its publication, the Coomaraswamy report has been used as a call to arms in right wing circles, a symbol of what they believe to be the unjust victimisation Japan continues to be subject to on this issue. However, for many years, right wing opprobrium on this point was generally directed towards the governments (and people) of Korea and China. The views of the treaty bodies, who repeatedly expressed their disappointment with the government’s inadequate measures

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regarding the ‘comfort women’ issue, were not addressed in any serious manner for many years. It was not until 2014 that the ‘comfort women’ issue would once again assume centre stage.

The ‘comfort women’ issue returns In 2014, new developments regarding the so-called ‘Yoshida testimony’ once again brought the ‘comfort women’ issue to the forefront. Seiji Yoshida was an author who had written several books stating that, during his service in the army during the war, he had personally been involved in widespread and indiscriminate kidnapping of Korean women and girls who would be forced into sexual slavery. Yoshida’s books were influential in publicising the ‘comfort women’ issue, and were cited in newspaper articles and other publications, as well as the Coomaraswamy report. However, several scholars posed doubts regarding the veracity of Yoshida’s claims, and in August 2014 (14 years after Yoshida had died), the influential daily broadsheet Asahi Shimbun admitted that Yoshida’s stories appeared to have been fabricated (Asahi Shimbun 2014a). The government jumped on the news, suggesting that Yoshida’s testimonies had been the only evidence that forced recruitment as sex slaves had ever taken place, and immediately demanded that Coomaraswamy retract her report. Much to the government’s consternation, Coomaraswamy refused, noting that Yoshida’s publications were just some of the many sources, including interviews with actual victims, of her report (Sankei Shimbun 2014b). This was a wastershed moment in the development of the ‘han-nichi’ narrative. Now the left leaning Asahi, always a target of the right, had admitted that it had fabricated lies about the ‘comfort women’ issue, seemingly exposing its true agenda as spreading libel and defaming the Japanese people. The term han-nichi had increasingly been in general use since the early 2000s, but generally in reference to alleged propaganda by the Korean or Chinese governments. The Yoshida testimony furour proved that the enemy also lurked within – Japanese traitors who attack the honour of the country and the brave soldiers who fought in the last war. The term han-nichi started to be openly directed towards those turncoats. Asahi was condemned as ‘han-nichi’ by far right commentators, who found a platform in other mainstream outlets (see e.g. Seiron 2014), and became the target of numerous right wing campaigns, some of which involved conservative politicians, demanding that the newspaper apologise and even go out of business to atone for its sins (see e.g. Asahi Shimbun wo Tadasu Kokumin Kaig 2017). Many of the far right figures involved in this campaign have close ties with PM Abe and other politicians of the LDP, and it is widely believed that there was some level of co-ordination. Certainly the government did nothing to defend Asahi, or the free press in general: far from it, high ranking LDP politicians demanded that ‘sanctions’ be levied on the newspaper (Yomiuri Shimbun 2014), and Abe himself stated in the Diet that Asahi’s reporting had ‘caused great damage to Japan’s image … [and] has led to unjust international slander’ (Asahi Shimbun 2014b).

162 Saul J. Takahashi These developments came too late for the 2014 sessions of both the HRC and CERD, but the next review of Japan’s implementation of a human rights convention was to come in 2016 – none other than CEDAW, which had long raised concerns regarding the ‘comfort women’. The CEDAW session in February of that year was attended by a large entourage of right wing figures and organisations, demanding that the Committee recognise that the entire ‘comfort women’ issue was a scam. The government attacked Asahi by name several times at the Committee session, blaming it for spreading fabrications and influencing international public opinion (Sugita 2016a: 4). In addition, right wing groups did not confine themselves to the ‘comfort women’ issue, but also attacked the human rights regime as a whole: for example Mio Sugita, an extreme right LDP politician known for blunt and outlandish statements, asserted in a pre-session consultation with the Foreign Ministry that ‘every country has its own traditions and culture’ and ‘In the past, it was always “women and children first” when a disaster struck. Will gender equality change that philosophy?’ (Sugita 2016a: 9). In any case, CEDAW did not accept these positions, and the committee reiterated its criticisms of Japan on the ‘comfort women’ issue, stating that Japan should ‘recognise the right of victims to a remedy, and accordingly provide full and effective redress and reparation … ’. CEDAW also criticised the 2015 Japan– Korea bilateral agreement for ‘not fully [adopting] a victim-centred approach’ (CEDAW 2016: 8, 9) Right wing organisations were furious, and upon returning to the country, some started a campaign to have Yoko Hayashi, Japanese member and chairperson of the Committee, removed from her position by the government for her treachery (Sankei Shimbun 2016a). Of course, treaty body members are, as a general rule, not involved in the substantive review of their own countries, meaning that Hayashi was in no position to stop CEDAW from criticising Japan even if she had wanted to (see UN 2012). In addition, it was reported (again by Sankei) shortly after the CEDAW session that CEDAW members wanted to cite in the Concluding Observations legislation barring women from assuming the imperial throne as an example of discriminatory laws in Japan. This issue had not been raised during the session, and, subsequent to the government’s protests, was not included in the final version of the Concluding Observations – but the mere suggestion sparked a backlash from the extreme right, many of whom venerate the Emperor as a living deity. Adding fuel to this fire, the report stated that it was the Chinese member of CEDAW that had raised this issue (Sankei Shimbun 2016b). Right wing blogs had a heyday, and PM Abe stated in parliament a few days later that: it is obvious that discrimination against women is not the objective of the [law]. It is utterly inappropriate that [CEDAW] would take it up. … We intend to make approaches [to CEDAW] … so that they gain a proper understanding of our nation’s history and culture, so that this kind of thing never happens again.

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Another high ranking LDP politician stated that it was ‘problematic that something so fundamental to our nation’s history and tradition … is viewed only through the lens of discrimination or gender equality’ (Sankei Shimbun 2016c).

Criticism from Special Procedures mandate holders In parallel to these developments, Japan was under fire for other human rights issues. In November 2013, two Special Rapporteurs, the Special Rapporteur on Freedom of Expression (Frank la Rue) and the Special Rapporteur on Health (Anand Grover), issued a joint statement expressing ‘serious concern’ on the controversial Specially Designated Secrets Bill that the government looked poised to ram through parliament over considerable public protest. The two Special Rapporteurs noted that the Bill ‘[establishes] very broad and vague grounds for secrecy’ and also posed ‘serious threats to whistle-blowers and even journalists’ (La Rue and Grovner 2013: 1). Their statement was issued three days after a letter had been sent to the government outlining their concerns in more detail (La Rue and Grovner 2013). Ten days later, in response to a question posed by a Japanese journalist at a press conference, Navi Pilay, the UN High Commissioner for Human Rights, echoed those concerns, urging the government to ensure adequate human rights safeguards were in place before adopting the Bill (Asahi Shimbun 2013). Those concerns notwithstanding, the Bill was rammed through parliament on 6 December. The government stated simply that it would engage with the international actors to inform them of the legislation, and subsequently provided OHCHR a summary, and later a full translation, of the Act (Government of Japan 2014b). However, contrary to this measured public response, reports of an internal meeting of LDP politicians two days after Pilay’s comments shows there was considerable backlash. MPs claimed Pilay was ‘unfit for her position’ and that her comments amounted to ‘interference in domestic matters’. One MP known to be close to the Prime Minister reportedly stated that ‘Pilay needs to explain why she made such a factually incorrect statement. We might need to demand that she apologises or that she is dismissed from her position, or freeze our financial contributions’ (Mainichi Shimbun 2013). Though no official statement was ever made regarding the withholding of contributions to the UN human rights organisation, Japan made no voluntary contributions to OHCHR in 2013, down from an annual average of approximately USD 700,000 from 2008 through 2012. Contributions were resumed in 2014, though at a more sporadic pace (OHCHR 2016). La Rue completed his term in August 2014, and the next Special Rapporteur on Freedom of Expression, David Kaye, requested the government to facilitate a visit to Japan. A visit was scheduled from 1 to 8 December 2015, but, not even two weeks before the visit was to take place, the mission was abruptly postponed to an unspecified date by the government, with the Foreign Ministry only stating that it had been unable to schedule the requisite meetings. At the time, there was mounting criticism surrounding pressure exerted by the government and the LDP

164 Saul J. Takahashi on the media, and the postponement of the visit was widely condemned by the press as an attempt by the government to shield itself from scrutiny (Nikkan Gendai 2015). The government scrambled to backtrack, and Kaye visited Japan in April 2016. Kaye’s subsequent report on his mission raises concerns on numerous issues, including the lack of legal safeguards protecting the media from government interference and recent threats by high ranking politicians to silence the press on sensitive topics. Kaye also points to the harsh penalties for journalists in the Specially Designated Secrets Act, and to the ‘chilling effect’ the Act might have on the press (Kaye 2017: 17, 18). In addition, Kaye expresses concern regarding reports that human rights organisations that had been involved in organising NGO meetings during Kaye’s visit had been subjected to surveillance by government intelligence agencies. According to these reports, intelligence agencies had surveilled Kazuko Ito, a qualified lawyer and director of Human Rights Now (HRN), a prominent Japanese human rights organisation, alleging that she had ‘contacts with extremists’ (FACTA 2016). The government denied the reports in a separate communication with Kaye (Government of Japan 2016). Kaye’s report is measured, praising Japan’s general commitment to human rights, describing his concerns as only significant ‘worrying signals’ and stating that his recommendations are put forward ‘in a spirit of constructive engagement’ (Kaye 2017: 17). Nevertheless, the government issued a long response to the report, asserting it is ‘based on hearsay or assumptions’ and that the recommendations are ‘biased’ (Government of Japan 2017a: 2). The response is nearly as long as the Special Rapporteur’s report itself; however, it is overall lacking in substance, with much dedicated to general statements such as: freedom of expression including media independence is fully guaranteed by the Constitution of Japan and there is no such fact that Government of Japan officials and members of the Japanese ruling party have put pressure on journalists illegally and wrongfully. (Government of Japan 2017a: 3) The government also states in various places that ‘there are countries that … specify criminal penalties or fines … on broadcasters in violation of program rules … In contrast, there are no such criminal penalties or fines … in Japan’ (Government of Japan 2017a: 5). Though it is not clear which countries the government is referring to, this attempt at deflecting attention to countries where freedom of expression is even more precarious than in Japan is a weak argument at best. There are rebuttals of some of the issues raised by Kaye, but close examination shows that they largely miss the mark. For example, the government attempts to justify the wide ranging provisions of the Specially Designated Secrets Act by arguing that information can only be designated as secret if it ‘would jeopardize Japan’s national security if it is disclosed’ (Government of Japan 2017a: 12). This of course fails to address the point raised by Kaye and many others, namely that under the law the government is afforded wide ranging discretion in deciding

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exactly what information poses potential national security risks, and that the safeguards against arbitrary application of the law are insufficient. The government’s arguments that the provisions of the law protect journalists from prosecution are also problematic: the relevant provision of the law, as well as the official commentary (cited by the government), are equivocal at best on the protection of human rights (Naikaku kanbou tokutei himitsu hogo-hou sekou junbi-shitsu 2014: 122–123). It is notable that the introduction of the government’s response to Kaye contains a statement that his report not only misrepresents the situation of human rights in Japan, but also ‘Japanese culture’ (Government of Japan 2017a: 2). Nowhere in the rest of the response is there any argument developing this statement, nor any specific mention of what the government purports to be ‘Japanese culture’ and how exactly Kaye has failed to understand it. However, the prominent inclusion of this statement at the outset of the government’s response fits in neatly with statements later to be made regarding CEDAW, as noted earlier. Kaye’s report, and the human rights NGOs who supported him, have of course been targeted by right wing actors in Japan. Emblematic is one statement delivered at the Human Rights Council by an organisation called the International Career Support Association (ICSA), which lambasts Kaye’s report as ‘sharply at odds with reality. In fact, Mr Kaye’s views closely resemble those of the Japanese Communist Party.’ In the eyes of ICSA, Kaye is ‘strongly influenced by a handful of anti-Japanese activists living in Japan and abroad’, and as evidence of this, ICSA states that Kaye had held a seminar in California with another professor who is a ‘notorious longtime Japan basher with deep animus towards Japanese Prime Minister Abe.’ The ICSA closes by stating its concern that Kaye’s report will be ‘another Coomaraswamy report … the UN Human Rights Council should withdraw the Coomaraswamy Report, and should not accept the David Kaye Report’ (ICSA 2017: 1, 2). In June 2016, Kaye visited Japan again to hold a seminar by HRN. Sankei published an article on the seminar with a headline calling Kaye’s report ‘han-nichi’ and insinuating that HRN and other ‘human rights organisations’ (which were put in ‘scare quotes’ in the article) were not impartial. Sankei also noted that Kaye had been grilled by LDP politicians on possible connections with the Japanese Communist Party (Sankei Shimbun 2016d) – a manifestly ludicrous allegation that is noteworthy in that it is common to ICSA and other right wing figures. Ito and other human rights activists who had ‘plotted’ Kaye’s visit were also lambasted by name in right wing blogs and other social media (see e.g. Cat News Agency 2016).

‘Just an individual’ In its rebuttal to Kaye, the government states that the Special Rapporteur ‘delivers his own opinion’ (Government of Japan 2017a: 2). Though not entirely clear in English, the phrase in the Japanese original (‘kei-shi jishin no kenkai’) suggests that the government is attempting to present the report as Kaye’s individual opinion, and not the opinion of the Human Rights Council or the United Nations as a

166 Saul J. Takahashi whole (Government of Japan 2017b: 1). It is of course technically correct that the Special Rapporteurs are independent experts, not UN functionaries, and that their reports do not on their own necessarily reflect the views of the international community (certainly at least not before their reports are adopted by the Human Rights Council). Nevertheless, Special Rapporteurs are authoritative experts appointed by the Human Rights Council, and their reports carry considerable weight. The language, at least in the Japanese original, seems to be an attempt by the government to diminish Kaye’s report as the notions of merely one misguided individual, as opposed to the analysis of an international expert recognised by the international community. This general line of attack is repeated shortly thereafter in the government’s reaction to the statement of Joseph Cannataci, the Special Rapporteur on Privacy. In May 2017, fierce debate continued in parliament on the extremely controversial Conspiracy Bill, and reports indicated that the government was moving towards unilaterally ramming the Bill through. On 18 May, Cannataci sent a letter to the government, expressing concern regarding the Bill and reports he had received that ‘the vagueness in the definition of “organised criminal group” could … create the opportunity for legitimizing, for example the surveillance of NGOs considered to be acting against national interest.’ Cannataci also expressed concern regarding the ‘lack of transparency’ in the preparation of the Bill and ‘the pressure of the Government for the rapid adoption of the law … undermining … adequate public debate.’ Cannataci informs the government that, given that the Bill looked close to adoption, and that ‘these are matters warranting immediate public attention’, the letter would be made public immediately (Cannataci 2017: 2, 3, 5). The government’s response was immediate and furious. On the same day that Cannataci’s statement was issued, the Japanese Foreign Ministry hand delivered a formal protest to OHCHR headquarters in Geneva. The protest letter does not even attempt to address the human rights related points raised by the Special Rapporteur, and merely reiterates the government’s arguments that the Conspiracy Bill is necessary for the country to ratify the UN Convention against Transnational Organised Crime (Gaimushou 2017b) – an argument that had already been thoroughly discredited in Japan by numerous commentators (see e.g. Takahashi 2017). Meanwhile, the Cabinet Secretary stated that both the substance of Cannataci’s letter and the fact that he had made it public without approaching the government first was ‘clearly inappropriate’. The government also continued with the dismissal that they had used against Kaye, stressing that he worked in his individual capacity and ‘did not represent the UN’, thereby attempting to discredit his concerns as the opinions of one benighted lone wolf (Reuters 2017). Of course, Sankei also accused the Japanese Bar Association and the other usual suspects of collaborating with Cannataci in daring to criticise the government (Sankei Shimbun 2017b).

Meeting with Guterres The government also made other efforts to discredit the human rights bodies, in particular the Special Procedures mandate holders. On 28 May 2017, shortly after

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the scuffle with Cannataci and a little over a year after the CEDAW session, a short meeting took place between Prime Minister Abe and UN Secretary General Guterres, on the sidelines of the G8 Summit in Italy. It appears that the PM took advantage of this meeting to present Guterres with the government’s side of recent events, in an apparent attempt to have the big boss put the human rights people in their place. Immediately after the meeting, the government announced that Guterres had ‘expressed his support’ and ‘welcomed’ the 2015 deal with the Koreans that CEDAW had noted with concern. The government also stated that the PM: described Japan’s efforts towards becoming a State Party to the United Nations Convention against Transnational Organized Crime. … SecretaryGeneral Guterres explained that a Special Rapporteur of the Human Rights Council is an individual expert independent from the United Nations and his/ her assertions do not necessarily reflect the consensus view of the United Nations. (MOFA 2017; emphasis added) The Japanese version of the statement appears to put even more distance between the UN and the Special Procedures: it states that Special Rapporteurs work ‘in their individual capacities, separate from the UN’ (kokuren to ha betsu no kojin no shikaku de katsudou shite-ori) (Gaimushou 2017a). It is notable that the Secretary General’s office issued a Note for Correspondents the next day, with considerably different points of emphasis. In the Note, the UN states that Abe and Guterres: did discuss the issue of so-called “comfort women”. … The Secretary-General did not pronounce himself on the content of a specific agreement but on the principle that it is up to the two countries to define the nature and the content of the solution for this issue. Regarding Japan’s arguments with Cannataci, the Note states simply that [Guterres] told Abe that ‘Special Rapporteurs are experts that are independent and report directly to the Human Rights Council’ (UNSG 2017). Finally, the shift to a more aggressive attitude towards international human rights bodies is also noticeable in the recent increase of popular publications propagating an extremely critical approach of those bodies, as well as the Japanese who feed them with ‘han-nichi’ information. For example, one book published in January 2017, Straight from the UN: the Global Anti Japanese Era, collects essays on the ‘han-nichi’ bias of UN human rights bodies and the UN in general. One chapter claims that CEDAW is ‘attempting to slander the Imperial Family’, and that ‘anti Japanese left wingers dance at the UN’ (Fujii 2017b: 56, 58). The book contains a list, with photographs, of selected ‘anti Japanese’ elements, including particular Japanese journalists and the aforementioned lawyer and human rights activist Ito (Fujii et al. 2017). Other books targeting the UN, and domestic ‘hannichi’ elements have titles such as The ‘Comfort Women = Sex Slaves’ Lie that was

168 Saul J. Takahashi Propagated by the UN (Fujioka 2016); The Japanese that Build Comfort Women Statues Across the World: from Nishi Waseda through the UN to the World (Sugita 2017); and Why the Media is so Han-nichi. Such books are displayed prominently in book stores throughout the country. Significant also is Japanism, a bimonthly political commentary magazine that started publication in 2014. Japanism serves as a mouthpiece for the extreme right, with feature articles such as ‘Shooting down the han-nichi mass media’, where the left of centre media is criticized as engaging in ‘anti-Abe hate speech’ (Japanism 2015a). Japanism targets a young readership, with pop style covers and short manga messaging. Articles condemning the UN human rights bodies for their criticism of Japan are increasingly common in Japanism, and are not solely focused on the ‘comfort women’ issue. Allegedly left wing, han-nichi (the terms are used interchangeably) elements such as Japanese human rights organisations, the Bar Association, and even some Japanese MPs feature prominently in most of these articles as Benidict Arnolds who feed the UN with han-nichi lies (see e.g. Fujiki 2016; Sugita 2016b).

Political context and Constitutional debate The shifts in Japan’s attitude towards international human rights bodies cannot be divorced from changes in the political landscape in the country. It is no coincidence that the few positive steps that have been taken towards meaningful implementation of at least some of the recommendations of the treaty bodies were taken between 2009–2012, when the LDP was out of power. During that time, a broad coalition led by the Democratic Party of Japan (DPJ) extended a standing invitation to the Special Procedures mandate holders, took measures towards criminal justice reform, and submitted a 2012 bill to establish an independent human rights institution (the LDP returned to power before the bill was adopted, effectively killing it).2 The hardline stance towards criticism can be noted from late 2012, when the LDP returned to power under the leadership of Prime Minister Shinzo Abe. Abe is a nationalist politician who has for many years argued for a departure from the ‘post-war regime’, in particular advocating for fundamental revisions to the post-war Japanese Constitution. The Constitution was written and adopted while the country was still under American occupation – a fact that has made it vulnerable to right wing criticism that is an imposition of ‘foreign values’. It is the move to revise pacifist provisions in the Constitution that has received the most attention, both domestic and international – however, though often overlooked, human rights is in fact central to the Constitutional debate. In 2012, the LDP published a draft Constitution, which it envisions replacing the current one with. The draft Constitution does maintain most of the human rights provisions, but with the sweeping caveat that ‘all nationals must accept that freedom and rights are accompanied by responsibilities and duties … [none of the rights may be exercised] against the public interest or public order’ (Article 13) (Jiyuuminshu-tou 2012a). According to the LDP, ‘“Public order” means the

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“social order”, and refers to a peaceful social life. It is obvious that individuals claiming their rights should not cause inconveniences for the social life of others’ (Jiyuuminshu-tou 2012b: 14). There is no explanation of the term ‘public interest’, though it would seem to be open to equally broad and arbitrary interpretation. The LDP asserts that ‘scattered throughout the human rights provisions of the current Constitution are concepts that appear to be derived from a Western European philosophy of natural rights’, and that human rights ‘should be based on our nation’s history, culture, and traditions’ (Jiyuuminshu-tou 2012b: 13). What exactly constitutes Japan’s ‘history, culture, and traditions’ is open to question, but the notion that claiming one’s rights is a burden on others in society is a recurring theme in LDP material. One short publication, in comic book form, derides the current Constitution as ‘individualistic’, asserting that ‘just because you have fundamental human rights doesn’t mean you can do whatever you want … if everybody acted selfishly, society would fall apart’ (Jiyuuminshu-tou 2015: 22). It is noteworthy that the government goes out of its way to promote the notion of human rights as damaging the harmony of the group: the website of the Ministry of Justice’s Human Rights Bureau stated in 2015 that the ‘recent trend to only demand your own rights and not to be considerate to others … is the cause of a wide range of human rights violations’ (Houmushou Jinken Yougokyoku 2015). This statement was later revised on the Bureau’s website, but promotional material of this bureau is still rife with statements that human rights is about ‘caring how others feel and fostering consideration for others’ (Ministry of Justice Human Rights Bureau 2014: 65), as opposed to a shield from arbitrary actions of the state.

Increasing strength of the right wing in the country Of course, the notion that human rights are a Western construct imposed through imperialism is hardly unique to the extreme right wing, in Japan or elsewhere. Whether such sentiments have deep roots in Japanese culture is debatable, but on their own they do not explain the recent new narrative. Rather, it is submitted that key to this question is the increasing influence of the extreme right wing movement in Japan. There are many organisations affiliated with the far right in Japan over recent years, most with overlapping memberships, but the general themes are similar: a return to the pre-war regime, under which the Emperor would be worshipped as a deity, the military would play a prominent role domestically and abroad, and an end would be put to the ‘imbalance between rights and responsibilities’ that they assert is part of the current Constitution. Nippon Kaigi, the most influential umbrella group in the movement, states that post-war Japanese education not only goes too far in ‘emphasising rights’ at the expense of duties to the state and the Emperor, but is also ‘masochistic in criticising Japan’s history’, i.e. problematic in that it teaches children about the ‘comfort women’ and other Japanese wartime abuses (Nippon Kaigi 2017). Leading politicians of the ruling LDP, including Abe and the majority of his successive cabinets, have well documented ties with Nippon Kaigi and other similar organisations (Tawara 2016: 95).

170 Saul J. Takahashi These organisations are of course as a rule critical of the current Constitution, but Sugano’s research into Nippon Kaigi shows that at least the more fundamentalist elements of the movement have little interest in Constitutional revision as such. Instead, they advocate for a complete destruction of the Constitutional order, and see a provision which would allow the government to declare a national emergency as the means to accomplish this goal (Sugano 2016: 180–186). This prerogative was in the pre-war Constitution in several forms, and was expressly excluded from the current one due to the power’s arbitrary and expansive application throughout the war (Iijima 2017: 10–11, Enosawa 2017: 12–15). However, true to form, the power is included in the LDP’s draft Constitution, and its declaration (which could be done with minimal parliamentary involvement) would allow the Cabinet to adopt laws without parliamentary debate, with human rights to be respected only ‘to the fullest extent possible’ (Articles 99.1, 99.3). It is noteworthy that Abe himself has stated that the inclusion of emergency powers should be high priority in terms of revisions to the Constitution, seemingly more than any revisions of any other Articles (Hosaka 2016). Revision of the Constitution is in no way inevitable, and is in any case hardly the be all and end all of human rights in Japan – as is evidenced by the fact that the government has managed to adopt repressive laws even under the current Constitution. Nevertheless, the Constitutional debate remains crucial, not the least because the Japanese judiciary has been remarkably reluctant to accept arguments based on international human rights conventions. The Constitution remains the fundamental safeguard in Japan against arbitrary state power, and revision along the lines of what is proposed by the LDP would be potentially cataclysmal for human rights in the country.

Conclusion A new narrative has emerged in Japan, in which the country is the victim of unjust and unfair criticism by UN human rights actors. According to this narrative, the entire ‘comfort women’ issue is a hoax, a fabrication created to slander the innocent and upright Japanese nation. Other human rights criticisms are likewise unfounded, and are aimed at slandering Japanese traditions and culture, including the sacred Imperial family. In the new narrative, Japan is practically under siege. An important pillar of this is the existence of ‘han-nichi’ elements, which work in close collusion with the UN human rights bodies. These elements include not only foreign governments and nationals, but a fifth column of collaborators within Japan. These traitors – called ‘hikokumin’, or ‘non Japanese’ during the war – include left wing journalists (in particular Asahi), the Bar Association, human rights activists, and the Communist Party for good measure. Obviously, it is only a short path from here to the idea that these traitors must be stopped at all costs, and through whatever measures necessary. In this context, the emergency powers that right wing elements wish to introduce into the Japanese Constitution are extremely worrying. The new narrative is reminiscent of darker days in modern Japanese history. The parallels are obvious: legislation allowing for punishment of journalists and citizens

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who spread ‘state secrets’; security laws that have stark similarities with ‘public security’ laws in the run up to the war, under which political opponents were arbitrarily imprisoned and tortured; and Constitutional ‘national emergencies’ under which any restriction of human rights is legitimate. The fury of the extreme right against any human rights criticism by the UN is also remindful of 1933, when the country stormed out of the League of Nations in response to condemnation of Japan’s intervention in Manchuria. All Japanese schoolchildren learn that this led to the international isolation of the country, and to the eventual path to world war. The country would best learn from this history.

Notes 1 The Asian Peace and Friendship Fund was a fund established by the government in 1994 to provide compensation (from both public funds and private donations) to ‘comfort women’. The fund was privately run, and was subject to widespread derision as a method for the government to evade responsibility for the issue. 2 An in-depth examination of the human rights positions of the DPJ and other opposition parties in Japan is out of the scope of this chapter. In any case the party was only in power for a few years, and there is little prospect of it or any opposition party returning to power in the foreseeable future.

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Historical Fact, www.sdh-fact.com/CL/UN-Sex-Slave-Report-Chapter-5.2.pdf (last viewed on 16 August 2017). Sugita, Mio: 2016b: ‘Kokuren de souguu! Kokkai gi–in mo ita “kosupure sayoku shuudan”’ [Witnessed at the UN! “Cosplay left wing groups”, even with Japanese MPs], at JapanismApril 2016 at 32–35, Seirin-do, Tokyo. Sugita, Mio: 2017, Ianfu-zo wo sekaijuu ni tateru nihonjin-tachi: nishi waseda hatsu, kokuren keiyu, sekai [The Japanese that Build Comfort Women Statues Across the World: from Nishi Waseda through the UN to the World], Sankei, Tokyo. Tawara, Yoshifumi: 2016, Nippon Kaigi no zenbou: shirare-zaru kyodai soshiki no jittai [The truth of Nippon Kaigi: the reality of the unknown giant organisation], Kaden-sha, Tokyo. Takahashi, Saul: 2017, ‘Jinken seigen ha “kokusai jouyaku”, seiken no gotugou shugi’ [“International treaties” and restrictions on human rights: the government tries to have its cake and eat it], Huffington Post, 4 February 2017. UN [United Nations]: 2012, ‘Addis Ababa guidelines on the independence and impartiality of members of the human rights treaty bodies’, A/67/222 annexe 1, New York. UNSG [United Nations Secretary General]: 2017, ‘Note to Correspondents: In response to questions on the meeting between the Secretary-General and Prime Minister Abe of Japan’, New York. Yomiuri Shimbun: 2014, ‘Ianfu de shin-danwa wo, asahi ni seisai hitsuyou: jimin seichou’ [Need a new position on the comfort women, Asahi must be sanctioned: LDP Policy Council].

Index

Notes: headings in italics indicate a publication title or Japanese term. Page numbers in bold refer to information in tables, those followed with an ‘n’ indicate a note with its number. Abe, Shinzo: ‘comfort women’ issue 150, 152, 153, 161, 162; constitution 168, 170; gender equality 55, 58, 60; and the media 3, 13, 15–16, 17–18, 161; meeting with Guterres 167; Nippon Kaigi 169 ADR (Alternative Dispute Resolution) 30, 113–14; health 115–16, 119, 124; housing 114–15, 119, 124; reparation process 116–20, 122–4; state obligations 120–2; substantive awards 118–20, 123–4; see also Fukushima disaster Al Qaeda 105–6 Alien Registration System 141n4 Amnesty International 150 anti-Japanese (han-nichi) agenda 157, 161, 165, 167–8 Anti-Stalking Act (2000) 57 Aoki, Chikako 61 arrests 43, 46–50, 100, 107; see also daiyou kangoku (substitute prisons) Asahi Shimbun 14, 17, 24, 170; ‘comfort women’ issue 16, 24, 161–2; IchiroOzawa 21–2 Asahi TV 14, 15–16, 17 Asano, Ken-ichi 20 Ashikaga case 31 Asian Peace and Friendship Fund 160, 171n1 Asian Women's Fund (AWF) 147, 148, 149, 154n4 assimilation policy projects see Do-wa Policy Projects Assisted Voluntary Return (AVR) 137 asylum seekers 128, 129, 130–1, 136–7; see also refugees

Bar Association of Japan 166, 168, 170 Basic Act for Gender Equal Society (1999) 57 Beijing Platform for Action 56 BHR 9 birth rate 57–8, 63–4, 65; see also families boat people see Indo-Chinese refugees Bok-dong, Kim 144 Brasor, P. 114 Broadcast Act (1950) 14, 15–16, 17 broadcasting 13–19; kisha clubs 19–23 Buraku Liberation League (BLL) 87, 92, 95 Burakumin 87, 88, 89, 93; see also Do-wa Policy Projects Burghartz v. Switzerland 73 Burma (Myanmar), refugees 128, 134, 139 Cambodia see Indo-Chinese refugees Camp Schwab, Okinawa 42, 46–50 Canada: ‘comfort women’ 150; equality 86 Cannataci, Joseph 166, 167 Cartwright, Silvia 149 CAT: Committee against Torture 151; Convention against Torture 158 CCP see Code of Criminal Procedure (CCP) CEDAW see Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) CERD see Committee on the Elimination of Racial Discrimination (CERD) CESCR see Committee on Economic, Social and Cultural Rights (CESCR) Chapman, David 77 Child Abuse Prevention Act (2000) 57

Index 177 Child Care and Family Care Leave Law (2017) 60 childcare 60–1 children: paternity 76–7, 80n25; refugees 131–2, 136, 137, 139–40; see also families China 1, 98, 162; ‘comfort women’ 147 cho-sho 30–3 Civil Code, gender equality 57, 70–1, 72, 73, 75–7, 80n10, 80n14 Civil Provisional Remedies Act (1996) 62 Coast Guard 43, 46–9 Code of Conduct for Law Enforcement Officials 45 Code of Criminal Procedure (CCP) 28, 34; Pre-trial Arrangement Proceedings (PAP) 30 ‘comfort women’ xiv, 16, 143–6, 153–4; Coomaraswamy Report 145, 157, 159–61, 165; government policy 146–8, 150–53, 154n5, 159, 160–62, 167–8; law suits 147–8; treaty bodies 148–50, 151–3, 160–63 Committee against Torture (CAT) 151 Committee on Economic, Social and Cultural Rights (CESCR) 149; see also International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee on the Elimination of Discrimination against Women (CmEDAW) 59, 65, 68, 72–4, 76, 77; see also Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) Committee on the Elimination of Racial Discrimination (CERD) 1, 3–6, 9, 84, 149, 153, 162; see also International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) confession statements (cho-sho) 30–3 Conspiracy Act (2017) xiii, 109, 157, 166 Convention against Torture (CAT) 158 Convention against Transnational Organised Crime 166 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 158; ‘comfort women’ 149, 153, 159, 162, 165; eugenics 64; women's rights 56, 69–75, 78n1, 79n3, 79n4; see also Committee on the Elimination of Discrimination against Women (CmEDAW); Coomaraswamy report convention refugees 131–2, 134; rights and entitlements 138; see also refugees Coomaraswamy, Radhika 145, 160, 161

Coomaraswamy report 145, 157, 159–61, 165; see also ‘comfort women’ Cooper et al v. Tokyo Electric Power Company, Inc. 113, 119, 122, 123 Copelon, Rhonda 146 corruption xiii, 22–3 Council for Gender Equality 56 courts see High Courts; judicial system; Supreme Court (Saiko- Saibansyo) criminal justice system 28–9; reforms (2004) 29–31; reforms (2016) 29, 31–3, 37, 38n13; see also judicial system Dai-san Shokan 108 daiyou kangoku (substitute prisons) xv–xvi, 28–9, 158–9; see also arrests death penalty 36, 158, 159 Democratic Party of Japan (DPJ) 8, 148, 168 deportation 137 designated activities status (tokutei-katsudo-) 135–6, 136–7 Diène, Doudou 42 Diet: ‘comfort women’ issue 148; criminal justice reforms (2016) 32; Fukushima disaster commission 113–14; gender equality 56–7, 58–9; media coverage 16, 17; Specially Designated Secrets Act (2013) 18–19 discrimination: Do-wa 93–5; by private actors 7–9; racial 4–5, 42, 44; surveillance of Muslims 102, 104–9; against women 55–8, 68–70, 78n3; see also gender equality; racism displaced persons see Fukushima disaster; refugees divorce 75–8 DNA evidence 31, 81n26 domestic violence (DV) 57, 62–3, 77, 78 Do-taishin report 89–91 Do-wa Policy Projects 84–8; advisory committee 88–9; Do-taishin report 89–91; Do-wa Policy Council 92–3; Iken Gushin (Do-wa Policy) 92–5; legislation (SML) 90–3; see also Burakumin Dumont, Lionel (Dumont case) 106 economy xii, 55, 89 education xvi, 139–40; Do-wa Policy 90, 93–4; Koreans xv, 3; refugees 131–2, 138, 139–40 Eichi, Isomura 88 Emancipation Declaration (1871) 87, 89 emergency powers xiii, 170 emperors 146, 167; veneration of 162, 169

178 Index employment: Burakumin 88–9, 92, 95; foreign nationals xv, 2, 7; refugees 132, 137, 138; women 56, 60–2 Equal Employment Opportunity Law (1986) 56, 60 equality 86; see also gender equality; racism; religious profiling eta see Burakumin ethno-religious profiling 102–6 Eugenic Protection Act (1948–1996) 64 eugenics xvi, 64 European Court of Human Rights 73, 80n19, 85 European Parliament 150

government obligations see state obligations Grover, Anand 163 Gun-ja, Kim 150 Guterres, Antonio 166–7

families 74; family life 63–4, 65, 68–70, 77–8; refugees 130–1, 135, 137; see also birth rate; children family names 57, 65, 71–5, 80n18 Family Register Act (1947) 80n14 Feldman, E.A. 116–19 Filipinos see Philippines Foote, Daniel H. 30, 117–19 force, permissible use of 45–6, 50n10; compliance 43, 46–50 forced migrants see refugees foreign media 20 foreign nationals 1, 140–1n1; domestic workers 61–2; Foreign Residents Survey 7; marriage with 80n14; Muslims 102; residents 4–5, 9; rights and entitlements 141n5; students 131, 137; tourists 9; see also refugees foreign values 168–9 Foundation for the Welfare and Education of the Asian People (FWEAP) 132–3 Frankfurter Allgemeine Zeitung 17 Fredman, Sandra 85–6 freedom of expression 163–4; right to 13, 14, 44–5; Special Rapporteur 16, 49, 163–6 Freeman, Laurie Anne 19, 20, 21–2 Fukushima disaster 112–13; press coverage 22; reparation programme 113–14, 116–20, 140–1n1; see also ADR (Alternative Dispute Resolution)

Haksun, Kim 146 han-nichi agenda 157, 161, 165, 167–8 Hashimoto, Ryutaro 57 hate speech 1–3, 5–6, 10; Japanese legal framework 3–7 Hate Speech Act (2016) 7 Hayashi, Yoko 162 health: Fukushima diaspora 115–16, 119, 124; Special Rapporteur 115, 116, 163 Henoko, Okinawa 42, 46–50 Hezbollah 100, 105–6 Higashikawa, Koji 5 High Courts 69, 76, 108 hikokumin 170 Himi case 31 hinin see Burakumin Hirani, Ryu-ichi 28 Hirohito (Emperor) 146 Hiromu, Nonoka 148 housing: Burakumin 88, 89; Fukushima diaspora 114–15, 119, 124; refugees 132, 136, 138 human rights: ‘comfort women’ issue 159–60; criticism of Japan 29, 151–2, 157, 163–8; Do-wa Policy 85–91; Japanese perspective 7–8, 10, 157–8, 161, 168–71; responsibility of private actors 7–9, 10; state obligations 85–6, 113–14; surveillance of Muslims 104–9 Human Rights Bureau (HRB) 8–9, 169 Human Rights Committee (HRC) 104, 158; ‘comfort women’ issue 149, 151–2, 162; criminal justice system 29; Do-wa Policy 84; eugenics 64; freedom of expression 13, 14, 18–19; gender equality 68, 70, 71, 73, 75, 77, 78n1, 79n6, 79n7, 80n18 Human Rights Council 165–6 Human Rights Now (HRN) 164 Hyakuta, Naoki 17

G7 summits 131 G8 summits 98, 100–1, 102, 167 gender equality 55–8; government strategy 63–4, 65; see also discrimination; equality; women Gender Equality Bureau 57 Gender Equality Vision (1996) 63 Goto-, Akira 31, 32, 35, 37

ICCPR see International Covenant on Civil and Political Rights (ICCPR) ICERD see International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) ICESCR see International Covenant on Economic, Social and Cultural Rights (ICESCR)

Index 179 ICPD see International Conference on Population and Development 1994 (ICPD) Iken Gushin, Do-wa Policy 92–5 immigration 5, 7; government policy 63, 128, 129–31, 133; see also refugees Immigration Control and Refugee Recognition Act 1982 (ICRRA) 129, 131, 134, 135, 136–7 immunity system 34, 38n16 imperial family see emperors Inaba, Hiroshi 48 individualism 9, 65, 169 Indo-Chinese refugees 128–9, 133–5, 137 Indonesia, ‘comfort women’ 147 integration assistance (refugees) 133, 135, 137, 138, 139 International Career Support Association (ICSA) 165 International Conference on Population and Development 1994 (ICPD) 63 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 93, 102–4, 158; Article 4 3–4; see also Committee on the Elimination of Racial Discrimination (CERD) International Covenant on Civil and Political Rights (ICCPR) 85; Article 20(2) 3; Article 23 69, 78n4; implementation by Japan 5, 29, 104, 158; right to assembly 43–4; right to freedom of expression 44–5; right to freedom of religion 102 International Covenant on Economic, Social and Cultural Rights (ICESCR) 158; see also Committee on Economic, Social and Cultural Rights (CESCR) International Criminal Court (ICC) 145–6 international law: hate speech 3–6; housing and health 114, 121; human rights 107–8, 109, 113–14; and Japanese courts 69, 105–7, 148; non-discrimination 69, 102, 105–6 Iran, Embassy staff 99, 100 Ito, Kazuko 164, 165 Japan Association for Refugees 131 Japan International Cooperation Agency (JICA) 131 Japanese Bar Association 166, 168, 170 Japanese Communist Party (JCP) 91, 148, 165, 170

Japanese constitution 90, 107–8; equality 4, 72–4, 75–6, 77; freedom of expression 163; human rights standards 104, 107; reform xiii–xiv, 65, 157, 168–70 Japanese culture 162–3, 165, 169–70; family life 57, 65, 73–4; social structure xii–xiii, 9, 89; working hours xiii, 61 Japanese nationality 132 Japanese Newspaper Publishers and Editors Association 20 Japanism (magazine) 168 journalists: forcible removal 43, 47; independent 20; investigative 19, 23–4; see also press judicial system 170; ‘comfort women’ 147–8; reparation 113; surveillance cases 97, 104–9; see also criminal justice system; legal framework juries (saiban'in system) 30, 37 Justice System Reform Council (JSRC) 29–30, 34 Kageyama, Asako 47 Kanai, Koji 88–9, 90, 91 kastetsu see housing Kawasaki, hate speech policy 6 Kaye, David 14, 15, 16, 24, 163–6 Kazuo, Yagi 88 Keishicho (Tokyo Metropolitan Police) 97–102; see also police Kidoutai (riot police) 43, 46–50; see also police kisha clubs 14, 19–23 Kishida, Fumio 153 Koga, Shigeaki 15 Koizumi, Jun'ichiro 30 Kono, Yohei, (Kono statement) 147 Koreans xv, 1–3, 5, 21–2; ‘comfort women’ 2, 144, 146–8, 153, 154n5, 160, 162 kyo-gi-go-i system 29, 33–7, 38n17 la Rue, Frank 163 Laos see Indo-Chinese refugees law enforcement officials see police Lebanon 99 left wing 168, 170 legal framework: broadcasting law 14–19; hate speech 3–6; see also judicial system Liberal Democratic Party (LDP) xiii, 161; ‘comfort women’ issue 162; constitution 170; Do-wa Policy Projects 88, 91; gender equality 56, 65; human rights 8, 57, 163, 168, 169; and the media 15

180 Index Malaysia: refugees 129, 134; surveillance of nationals 101 marriage 64; divorce 76–7; family names 71–5; minimum age 70–1; re-marriage 75–6, 78 Masayuki, Oga 90–1 maternity leave xv, 59–60 Matsuyama case 37n1 McDougall, Gay 145 McLean, Ronald (McLean case) 4–5 McNeill, D. 113 #me too movement 63 media 13–14, 23–4; government influence 22–3; kisha clubs 19–23 Menda case 37n1 military occupation 14–15, 42–3 Ministry of Internal Affairs 14, 16 Ministry of Justice: Human Rights Bureau (HRB) 8–9, 169; Muraki case 32 Mirua, Ruriko 3 Mochizuki, Isoko 22 Momii, Katsuto 16–17 Moro'oka, Yasuko 4–5 mosques, surveillance 98, 99–100, 102 Müller and Engelhard v. Namibia 73 Muraki, Atsuko 32 Muslims: profiling 102–5; surveillance 97–102, 105–9 Myanmar, refugees 128, 134, 137, 139 National Diet see Diet National Police Agency 31, 49, 101; see also police National Research Institute of Police Sciences (NRIPS) 31 nationalism xii–xiii, xvi, 15, 17, 168 Nationality Act (1950) 56 naturalisation 132 Netherlands, ‘comfort women’ 147–8, 150 New Party (Sakigake) 56 New York Times 17 newspapers see press NGOs (non governmental organizations): ‘comfort women’ issue 144, 145, 149; criticism of Japan 18, 62, 108; gender equality 56; refugees 131, 136, 140; surveillance of 164, 165, 166 NHK 16–17 Nihon TV 14 Nippon Kaigi 2, 169–70 Nonaka, Hiromu 22–3

OHCHR (Office of the UN High Commissioner for Human Rights) 18, 71, 152, 163, 166 Okinawa 50n1; indigenous people 42–3, 44; use of force 46–50 Organisation of Islamic Cooperation (OIC) 98, 100 organised crime 34, 35, 166 Osaka, hate speech ordinance 6 Ozawa, Ichiro- 21–2 Pakistan, surveillance of nationals 100–1 Pan-Malaysian Islamic Party (PAS) 101 PAP see Pre-trial Arrangement Proceedings (PAP) Paris Principles 8, 94 parliament see Diet Philippines 98; ‘comfort women’ 144, 147 Pillay, Navi 152, 163 Plan for Gender Equality (1996) 63 plea bargaining see kyo-gi-go-i system police: arrests 43, 46–50, 100, 107; daiyou kangoku (substitute prisons) xv–xvi, 158–9; investigative process 28–9, 30–3, 37; Kidoutai (riot police) 43, 46–50; surveillance 97–102; Tokyo Metropolitan Police (TMP) 97–102; use of force 47, 49; see also National Police Agency politics: refugees' political rights 132; women in 58–60; see also Diet; Japanese Communist Party (JCP); Liberal Democratic Party (LDP); Social Democratic Party of Japan (JSP) Porras, Julia 144 press 13–14, 23–4, 164, 170; investigative journalism 19, 23–4; Kisha clubs 19–23; Specially Designated Secrets Act (2013) 18–19; see also journalists Pre-trial Arrangement Proceedings (PAP) 30 Prevention of Spousal Violence and Protection of Victims law (2001) 57, 62–3 privacy 104–9, 166 profiling, ethno-religious 102–6 Promotion of Women's Participation and Advancement in the Workplace Act (2015) 60 Protection of Children Act (1999) 57 protests, public see public assemblies Protocol on the Status of Refugees 129 provisional stay (karitaizai) 137–8 public assemblies 50n3; management of 45–6; protests 2, 42–3; rights to 43–4

Index 181 racial profiling 102–6 racism 5, 42; hate speech 1–3, 10; Kidoutai (riot police) 49, 50; Special Rapporteur 42, 103; see also discrimination radiation exposure limits 115–16, 124 rape cases 31, 35, 63 Refugee Convention (1951) 128, 129, 134, 140 Refugee Status Determination (RSD) 134, 137–8 Refugee Travel Document (RTD) 132, 135, 138 refugees 128–31; children 131–2, 136–7, 139–40; convention refugees 131–2; housing 132, 136–7, 138; resettlement 128, 129, 132–5, 140; residential status xvi, 132–5, 138, 138–9, 141n2, 141n4; stratification 128, 130–1, 132, 138–9; see also immigration Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography Act (1999) 57 religion: expression of 106–7; religious profiling 102–6, 108–9; see also Muslims reparations (Fukushima) 116–20, 122–4; standards 121–2; substantive awards 118–20, 123–4; see also ADR (Alternative Dispute Resolution) Reporters Without Borders (RWB) 13, 19 reproductive rights, women 63–4 resettlement, refugees 128, 129, 134, 140 residential status of refugees xvi, 132–5, 141n2; Residential Card System 139, 141n4 RHQ assistance (Refugee HQ) 132–3, 134, 135–6, 139 right wing extremism xii–xiii, 157, 169–70, 171; ‘comfort women’ 160, 161–2, 167–8; hate speech 1–2, 3, 9; human rights organisations 165, 168; and the media 16, 17, 22, 23 Rodley, Sir Nigel xii, xiv–xv, xvi, 29, 84, 143–4, 159 Rome Statute for the International Criminal Court 1998 (ICC) 145–6 Ruff-Oherne, Jan 150 Ruteere, Mutuma 103 Rwanda 145 saiban'in system 30, 37 Saitagawa case 37n1 Sakigake (New Party) 56 San Francisco Peace Treaty (1952) 147 Sankei Shimbun 17

Sasakura, Kana 35–7 schools see education Seiron (magazine) 160 Sen, Amartya 86 sexual harassment 59 sexual slavery see ‘comfort women’ Shelton, D. 121 Shibushi case 31 shiho--torihiki (bargained justice) 34 Shimada case 37n1 Shin, Hebon 5 Shoji, Moto'oka 146 shuukanshi (tabloid press) 16, 23 slavery see ‘comfort women’ SML see Do-wa Policy Projects Social Democratic Party of Japan (JSP) 88, 148; gender equality 56 social structure (Japanese) xii–xiii, 9, 89 Soeda, Atsuhiro 48 South Africa, equality 86 special permission to stay (zairyutokubetsu-kyoka) 135–6 Special Rapporteurs 154, 165–6, 167; ‘comfort women’ 145, 157, 159–61, 160, 165; freedom of expression 16, 49, 163–6; health 115, 116, 163; racism 42, 103 Specially Designated Secrets Act (2013) xiii, 18–19, 19–20, 163, 164–5 state obligations: ADR process 120–2, 124; constitution 90; gender equality 69–70; human rights 7–8, 85–6, 113–14; negative obligations 85; positive obligations 84–5; regulation of corporations 113–14 state secrets 18–19; see also Specially Designated Secrets Act (2013) Stockwin, Arthur 19–20 stratification, refugees 130–1, 132, 138–9 students: foreign nationals 131, 137; surveillance 100 subsidiary protection status 139 substitute prisons (daiyou kangoku) xv–xvi, 28–9, 158–9; see also arrests Suga, Yoshihide 22 Sugano, Tamotsu 170 Sugaya, Toshikazu 31 Sugita, Mio 162 Sunday Mainichi 23 Suo-, Masayuki 32 Supreme Court (Saiko- Saibansyo) 77–8; ‘comfort women’ 148; gender equality 73–4, 75–6, 77; surveillance cases 105, 107, 108

182 Index surnames see family names surveillance 164; court cases on 104–9; infrastructure 109; of Muslims 97–102, 108–9 Su-wol, Chan 144 Syria, refugees 131 tabloid press (shuukanshi) 16, 23 Tae-woo, Roh 146 Taiwan, ‘comfort women’ 147–8 Takae, Okinawa 42, 46–50 television see broadcasting terrorism, risks 97, 98–9, 103, 105–6 Thailand 98; refugees 129, 134, 139 times up movement 63 tokutei-katsudo- (designated activities status) 135–6 Tokyo District Court, surveillance case 104–7, 108 Tokyo Electric Power Company (TEPCO) 22; Fukushima disaster 112–13, 115, 116, 117–20, 122–3; kisha club 20, 22–3 Tokyo Metropolitan Assembly 59 Tokyo Metropolitan Police (TMP) 97–102; see also police Tokyo Mitsubishi UFJ 100 Tokyo Shimbun 22 To-ru, Hashimoto 152 treaty bodies: ‘comfort women’ issue 148–50, 151–3, 154, 160–63; human rights 108, 157–9; Japanese engagement with 158–66; right wing criticism 160; see also United Nations TV Asahi 14, 15–16, 17 UK, equality 86 United Nations: CAT 151, 158; CEDAW 56, 64, 69–75, 78n1, 78n3, 79n4, 158, 159, 162, 165; CERD 1, 3–6, 84, 162; CESCR 149; CmEDAW 59, 65, 68, 72–4, 76, 77; Code of Conduct for Law Enforcement Officials 45; Conference on Human Rights, Vienna (1993) 144; Convention against Transnational Organised Crime 166; Guiding Principles on Business and Human Rights 120–1; ICCPR 3, 5, 29, 43–5, 69, 78n4, 85, 102, 104, 158; ICERD 3–4, 93, 102–4, 158; ICESCR 158; International Conference on Population and development 1994 (ICPD) 63; OHCHR 18, 71, 152, 163, 166; Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) 115; Sustainable Development Goals 65;

UNHCR 134; World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban (2001) 103; World Conference on Women, Beijing (1995) 56; see also treaty bodies United States: anti-American views 98–9; ‘comfort women’ 150; equality 86; plea bargaining 33, 36, 38n19 Universal Declaration of Human Rights (UDHR) 44–5 untouchables see Burakumin Urban Renaissance Agency 132 video recording: police interrogation 30, 37, 38n13; in public assemblies 46 Vietnam see Indo-Chinese refugees welfare allowances, refugees 138, 132, 141n5 Western values 168–9 witness statements see cho-sho women: domestic violence 62–3; employment 56, 60–2; equality xv, 55–8, 63–4, 68–70; family names 71–5; marriage 70–5, 77–8; in politics 58–60; re-marriage 75–6; reproductive rights 63–4; see also ‘comfort women’; gender equality Women's International War Crimes Tribunal on Japan's Military Sexual Slavery, Tokyo (2000) 146 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban (2001) 103 World Conference on Women, Beijing (1995) 56 World War II 2, 87; media 14–15; post-war treaties 147, 148; see also ‘comfort women’ Yamashiro, Hiroji 48, 49, 50 Yamaura, Yoshiki 76 Yomiuri Shimbun 14, 17 Yong-soo, Lee 150 Yoshiaki, Yoshimi 147 Yoshida, Seiji 161 Yoshida, Shigeru 47 Yugoslavia 145 Yu-wa policy (reconciliation) 87 zairyu- tokubetsu-kyoka (special permission to stay) 135–6 Zaitoku-kai 2–3, 6