1 Legislation and fundamental policies covering the human rights
		1-1 Producing a line of the Constitution of Japan - Fundamental Law of Human Rights - Discrimination Prohibition Law 1-1-1 Full ratification and implementation of international human rights conventions Of the 29 international human rights conventions, the Japanese government has ratified or signed 10 conventions and covenants as of January 2002. However, two international human rights conventions of importance (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the (first) optional Protocol to the International Covenant on Civil and Political Rights) are left unratified. In addition, of the conventions ratified by the Japanese government, two chief conventions have not been ratified completely since the government has declared some reservation to part of the articles and declared its own interpretation. As stipulated in Article 98, the Constitution of Japan, the Japanese government shall faithfully observe the treaties concluded by Japan and established laws of nations, but the ratified conventions are far from being well implemented. The Japanese government has been so slow in amending and completing the related internal laws as required by ratification with the exception of the Convention on the Elimination of All Forms of Discrimination against Women, ratified in 1985, when Japan's Nationality Law was partially revised. In addition, each convention committee issued many recommendations to request Japan to bring its related laws into conformity with the conventions and covenants it ratified. This is because it has also been slow in bringing the situation into compliance with them and they are poorly implemented and there are still some situations contradictory to them. In connection with the human rights of foreign nationals, the following must be done to fully ratify and implement the international human rights conventions and covenants: 1-1-1-1 Ratification of the optional protocol to the International Covenant on Civil and Political Rights The Japanese government has not yet ratified the protocol which stipulates in Article 2 that "Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration", saying that it may infringe upon juridical independence and confuse the system of domestic remedies. So, migrants and foreign nationals who have not been redressed for their human rights violations under the current system of domestic remedies have no opportunity to access international organizations. The Japanese government should ratify the protocol and enable an individual to notify the Committee when any of his/her rights have been violated so that the door will be open to international society for the redress of their human rights violations. Similarly, the Japanese government has not made such a declaration as specified in Article 14, International Convention on the Elimination of All Forms of Racial Discrimination which says, "A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals with its jurisdiction claiming to be victims of a violation by that State of any of the right set forth in this Convention". It has not ratified, in addition, the protocol to the Convention on the Elimination of All Forms of Discrimination against Women which has an equal provision (adopted by the U. N. in 1999). The Japanese government should make a declaration as specified, and ratify the protocol. 1-1-1-2 Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families The Convention stipulates the international standards regarding the rights of migrants and foreign nationals and guidelines to assure them their rights. It states their rights should be protected, regardless of status of residence. The Japanese government should ratify and follow the Convention for the assurance of the human rights of migrants and foreign nationals by taking proper measures necessary for the implementation of the Convention and completing related internal laws. It is to be noted, moreover, that the Convention mentions amnesty in Article 69 to legitimize migrants and foreign nationals who are in an irregular or illegal situation. 1-1-1-3 Withdrawal of reservation to the International Convention on the Elimination of All Forms of Racial Discrimination The Japanese government, when ratifying the Convention, has taken reservations to Article 4 (a) and (b) which oblige it to punish by law any racial discrimination as a criminal offense because they may infringe upon freedom of expression as stipulated in the Constitution of Japan. But the Committee on the Elimination of All forms of Racial Discrimination stated in its general recommendation 15 that Article 14 (a) and (b) are the key to struggle against racial discrimination. It also indicates there that prohibition of racial discrimination is in conformity with the right of freedom of expression. The Japanese government should withdraw such reservations and enact a law to prohibit racial discrimination to substantialize the ratified Convention. (See 1-1-3 and 10-3-6.) 1-1-1-4 Withdrawal of declaration of interpretation of and reservation to the Convention on the Rights of the Child The Japanese government, when ratifying the Convention, has declared that Article 9, 1 (stipulating that "a child shall not be separated from his or her parent against their will") does not apply to deportation and Article 10, 1 (stipulating that "applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner") does not affect the result of entry examination. It has also expressed reservation to Article 37 (c) stipulating adequate treatment of any child deprived of his or her liberty (including being under detainment by immigration control), separation from adults and maintaining of contact with his or her family. The Convention Committee expressed a concern about this. The Japanese government should withdraw such declarations and reservations which disregards the fundamental human rights of the children of migrants and foreign nationals. 1-1-2 Enacting the Fundamental Law of the Human Rights of Foreign Nationals The fundamental human rights of foreign nationals have been addressed only within the Immigration Control Law and Alien Registration Act under the current Constitution, which do not provide for adequate protection, but which has only been carried out depending on the construction of laws. The reality is, however, that the scope of the human rights guaranteed to foreign nationals is increasingly widening in response to a recent ratification of international human rights conventions and covenants and critical comments made at home and overseas. The situation is thus ambiguous, partly because the Japanese government applies related laws in an arbitrary manner and partly because human rights are eventually violated. It is therefore proposed that a fundamental law of the human rights of foreign nationals (named tentatively) should be enacted so as to eliminate such an ambiguous situation, and should state that any foreign national shall be able to enjoy any of the fundamental human rights as Japanese nationals, and stipulate the contents of the rights, depending on the international standard of human rights. The proposed fundamental law shall include: 1-1-2-1 Objectives The aim of the proposed law is to eliminate ethnic and racial discrimination and create a multi-cultural and multi-ethnic society in Japan, hoping to "occupy an honored place in an international society" as called for in the preamble of the Constitution and realize "freedom, equality and fraternity" as mentioned in the International Declaration of Human Rights. 1-1-2-2 Outline a- Declaration to be multi-cultural and multi-ethnic society b- All peoples within the geographical boundaries of Japan shall be able to enjoy the fundamental human rights as stipulated in the Constitution, regardless of race, ethnicity and legal status. c- This also goes for the rights as stipulated in the international human rights conventions and covenants. d- As examples of such rights, we refer to the vulnerable rights of foreign nationals and ethnic minorities in particular, such as worker's rights, the right to family reunification, the rights of the child and the right to education, the right to social security, the right to court and the right to residence, and stating the State's obligation to guarantee these rights. e- Respect, protection and promotion of rights of minorities f- Prohibiting discrimination and stipulating the State's obligation to redress the victims whose rights are violated. g- Stating that the law takes priority over the immigration control law. h- Establishing a promotional council of multi-ethnic and multi-cultural society composed of persons, including foreign nationals, selected in a satisfactory manner,. i The council shall periodically prepare a fundamental promotional plan of multi-ethnic and multi-cultural society and monitor its implementation. j Each of the local entities shall establish a similar council to prepare a fundamental promotional plan of multi-ethnic and multi-cultural society and monitor its implementation. 1-1-2-3 Legislating Importance shall be attached to the following in drafting the fundamental law of the human rights of foreign nationals: a- An organization with independent authority investigates the actual conditions of foreign nationals in terms of their rights. b- The governmental ministries and agencies disclose available information on the conditions of foreign nationals. c- Drafting of the fundamental law is to be initiated by a council composed of persons, including foreign nationals, selected in a satisfactory manner. The process of drafting is open to all citizens including foreign nationals residing in Japan to seek their comments on the draft. And then the draft is brought to the Diet for discussion and legislation. d- Once the law is enacted, the council will be reorganized to such a council as mentioned in 1-1-2 j. 1-1-2-4 Related laws In addition to the fundamental law, discussion must ensue on such laws as noted below to guarantee foreign nationals' rights in each related area. a- A law to guarantee the rights of ethnic minorities and their social participation (named tentatively). b- A law to guarantee the rights of natives to old colonies, and their offspring (named tentatively) 1-1-3 Enacting a prohibition law for all forms of ethnic and racial discrimination, and establishing a third-party mechanism It is necessary to provide legal means to prohibit and regulate existing ethnic and racial discrimination, considering such discrimination as criminal offenses. Concretely, it is necessary to enact a prohibition law of ethnic and racial discrimination to comply with the Convention on the Elimination of All Forms of Racial Discrimination. It is also necessary to set up a domestic human rights redress mechanism as guided by the Paris Principle. This law and system is necessary to guarantee the effectiveness of the fundamental law of the human rights of foreign nationals as shown in 1-1-2-2 Outline. (See 10-3-6, 7.) 1-2 Amending the Nationality Law and Immigration Control Law, and abolishing the Alien Registration Law The laws regulating the legal status and treatment of foreign nationals under the current legal regime are the Nationality Law, Immigration Control Law and Alien Registration Law. The Nationality Law covers the status of Japanese national and at the same time applies to foreign nationals who do not have Japanese nationality. The Immigration Control Law and Alien Registration Law aim at controlling foreign nationals in a fair manner. It is proposed here to introduce the concept of nationality as a right in the Nationality Law in view of the fundamental human rights derived from the Constitution of Japan and the international standard of human rights. It is also proposed to set a limit on the control of foreign nationals purportedly permitted under the Immigration Control Law and Alien Registration Law and to bring both in compliance with the human rights standard. 1-2-1 Amending the Nationality Law Since the Law is based on family line, tight restrictions are imposed on foreign nationals and their children to acquire Japanese nationality. A child is naturally granted Japanese nationality upon birth between a legally married couple. If the child is born illegitimately between a Japanese father and a foreign mother, it cannot get Japanese nationality unless the father recognizes it (acquisition of nationality by legitimization) and he marries the mother or the father recognizes it before it is born (prenatal recognition). This forms an apparent discrimination against children born out of wedlock. The current Nationality Law allows a foreign national to acquire Japanese nationality after birth by naturalization. He/she is often requested to change his/her own name into one according to Japanese practice. It may be because Japanese nationality is thought to be something special to the Japanese race. In particular, those coming from old colonies of Japan and their offspring had their Japanese nationality removed after the war indiscriminately. They cannot get Japanese nationality, including their third and fourth generations, unless they apply for naturalization. The Law mandates that a child born between a Japanese and a foreign national must opt for either Japanese or another nationality. It allows no dual nationality and strictly distinguishes Japanese nationals from foreign nationals (foreigners). It provides the child with no sufficient protection for his rights as stipulated in Article 24, General Comment 3, International Covenant on Civil and Political Rights. As a result, the Law is inadequate with regard to the current situation where Koreans residing in Japan are in their third and fourth generations, as well as when many a new comer lives in Japan and the number of children born between parents who are different in race. International Human Rights Committee indicated what was left to be desired with this Law. Thus, it is proposed to remove discriminating provisions from the Law and revise and bring it into conformity with the current situation of multi-ethnic and multi-cultural society where children should be protected by society and the State for their rights. To revise the Law, the following must be taken into account: 1-2-1-1 Stipulate nationality as a right. 1-2-1-2 Promote more proactively the acquisition of Japanese nationality according to one's birthplace. 1-2-1-3 Eliminate the mandatory opting system of nationality and approve dual nationality. 1-2-1-4 Review the acquisition system of nationality by legitimization. 1-2-1-5 Stop using the designation "naturalization" and change it to nationality acquisition after birth. Take adequate measures to respect the original name of an applicant when applying for nationality acquisition. 1-2-1-6 Introduce an exceptional measure to allow natives to Japan's old colonies and their offspring to get Japanese nationality. (See 5 for detail.) 1-2-2 Full amendment of the Immigration Control Law, and system revision It is proposed here to fully amend the Immigration Control Law and System in accordance with the Fundamental Law of Human Rights and the Prohibition Law of Discrimination. Full amendment should be discussed and carried out according to the fundamental rights provided for in the Constitution of Japan and the international standard of human rights even without waiting for the Fundamental Law of Human Rights and the Prohibition Law of Discrimination to be established. It is necessary to take some transient measures until full amendment is effected. It is also proposed, therefore, to partially revise the law and improve the system to eliminate the discriminating matters from the Law, bring a solution to the matters of urgency and review the items the international human rights committees requested the Japanese government to. 1-2-2-1 Fully amending the Immigration Control Law 1) (Purpose) Amend Article 1 (Purpose) as follows: a- Insert a clause of human rights in Article 1, and "impartial control of entries and departures" shall be carried out within the scope of the Fundamental Law of the Human Rights of Foreign Nationals and in view of human rights security. b- The recognition of refugees shall be carried out by a new and independent division of the Ministry of Justice according to another law (refugee recognition law) different from the Immigration Control Law, and remove recognition of refugees from the article. 2) Change in system from permission to permission/recognition of landing and status residence. The status of residence by permission is one granted by the Japanese government to realize its policy. Such permission depends on the State's authority and discretion. The authority and discretion should be limited by the human rights including the right to labor). The statuses of residence are as shown in the annexed table 1 to the current Immigration Control Law. It is proposed to integrate such statuses of residence and decrease them in number in accordance with the current visa system. It is necessary, prior to that, to abolish the Cabinet decision that no unskilled worker is allowed. Status of residence by recognition is such that the human rights of a foreign national or a migrant is recognized by the State taking into account his/her livelihood conditions, which the State must respect, protect and promote. It is therefore to be understood that the State is obliged to assure the foreign nationals/migrants their human rights. To recognize a status of residence here is in nature something like recognizing refugee status, and the State's discretion is very limited since it must follow a certain objective criteria when exercised. (The State must recognize any foreign national a status of residence on condition that he or she is successful in meeting the legal requirements. The burden of proof for examination is shared by the applicant, examinee, and the examiner. The current procedures for the recognition of refugee status leave much to be desired because they, for example, impose much more burden on the applicant. As a result, the number of applicants who are recognized as refugees is very limited. What matters here is the way the recognition of refugee status is carried out legally. In the event that application is refused, the applicant will be able to bring the case to jurisdictional examination (trial), request examination in accordance with the Complaints against Administrative Acts Inquiries Act, or file a petition with a national human rights redress mechanism (see 1-1-3 and 10-3-7). The rights to be secured at the time of refugee status recognition are those guaranteed by the Constitution of Japan, international human rights conventions and covenants, related internal laws (such as the Labor Standards Inspection Law), and exemplified in the Fundamental Law of the Human Rights of Foreign Nationals (See 1-1-2-2 Outline). The scope of his/her rights shall not be affected by how well or how much an applicant is integrated into Japanese society, so there must be provided some requirements to this effect. The period of residence is specified for status of residence and not specified for (status of permanent residence) according to the recognized applicant's rights and living conditions. Statuses by permission and by recognition shall be exemplified as follows: <a- Status of residence by permission> a-1 Designated activities: as shown in the annexed table 1 and part of 2, Immigration Control Law a-2 Labor: All activities other than the above which produce incomes. (See 2-4.) a-3 College student, researcher: as shown in the current college student, pre-college student, researcher and strictly conditioned trainee a-4 Temporary stay: as shown in the current temporary stay <b- Status of residence by recognition> b-1 Permanent resident: those who have resided in Japan for a certain period of time (3 years, for example) b-2 Status of residence recognized in view of human rights: Status of residence based on the rights as exemplified in the Fundamental Law of the Human Rights of Foreign Nationals (1-1-2-2 d). 3) The security of human rights against the deportation procedures shall be clarified as follows: a- Insert a human rights clause in the causes for deportation. Those foreign nationals who have been granted the rights as exemplified in the Fundamental Law of the Human Rights of Foreign Nationals (see 1-1-2-2) shall be exempted from deportation. Therefore, deportation shall not apply to those who have been recognized status of residence or who are applying, and who have been recognized as a refugee or who are applying. As to exemption from deportation according to the human rights clause, the foreign national in question is entitled to file an application for examination with the internal human rights redress mechanism (see 1-1-3 and 10-3-7). b- The security of human rights in the course of following the deportation procedures (including detainment) shall be provided for, and the related internal laws must be amended. It is necessary, in particular, to provide more strict and clearer requirements for detainment. (See 8-5.) 4) The current Law is able to deport and criminally punish if a foreign national goes against the law. This must be eliminated. Abolish such punishment as applicable to overstay, activity other than permitted and illegal entry (Article 70, 71, 72, and 73, Immigration Control Law). (See 9-2-11.) 5) Abolish the obligation to carry one's passport and certificate at all times as provided for in Article 23. 6) Abolish the Immigration Control Fundamental Plan (Article 61, 9). Follow the basic plan as provided for in the Fundamental Law of the Human rights of Foreign Nationals (1-1-2-2 i) when dealing with foreign nationals for control of entry, status and treatment. 1-2-2-2 Transitional measures to be taken Amending the law partially and reorganizing the system without revising the Law in terms of discriminating parts of and matters of urgency with the Law 7) Review thoroughly the technical trainee/intern system and abolish the technical internship system. 8)Following the recommendations issued by international human rights convention and covenant committees: a-Conduct comprehensive and periodic amnesty (using the system of special permission for residence). b- Train the Immigration Control Bureau staff for human rights. c- Enable a foreign national to have access to communications with outsiders while being examined for landing and before deportation when landing permission has been denied. d- Abolish the legal interpretation of the "detention-comes-first" principle in the course of following the procedures for deportation, enabling access to communications with outsiders, and disclosing the criteria for provisional release, and inserting a human rights criteria. (See 8-5.) e-Assure re-entry within the period of residence. 9) Stop overemphasizing the family of and blood relation with a Japanese for the examination criteria. Do the following: a- Revise the notification of long term resident, and disclose and revise part relating to long resident from the Entry and Status of Residence Handbook. b- Disclose and revise the criteria for special permission for residence. c- Introduce such human rights criteria as the right to family reunification, the rights of the child and the right to education in the above examination criteria. 10) Review the Immigration Control Law revised in the 1990's which took a stricter view to controlling illegal entrants and illegal residents. Abolish, in particular, the punishment applicable to those who support and aid undocumented workers and illegal entrants. a- Abolish the clause "Purpose of illegal entry" in the revised '97 law which was broadened from the illegal entry (Article 3). b-Abolish the offense of promoting illegal labor in the law revised in 1989 and that of secreting illegal entrant in the law revised in 1997. c- Abolish the offense of illegal stay in the law revised in 1999. d- Change to one year from five years, the refusal of re-entry into Japan after deportation. e- Abolish the causes of refusal of landing and the causes for deportation and the power of investigation by Entry Division staff. 11) Review the causes for the prohibition of landing (in Article 5) and the causes for deportation (in Article 27). Abolish, in particular, the discriminating clauses (such as those related to infectious cases, mentally deranged persons, victims of prostitution). 12) Revise the information or report system as to the following: a- Abolish the public servant's obligation to inform (Article 62, 2). The government should state that the obligation to inform according to Article 239, Criminal Procedure Act concedes to secrecy of information made available in the course of business as to social security, citizen registration and redress of rights on the basis of other laws. b- Abolish the citizen's obligation to report (Article 62-1) and the reward system (Article 66). 13) Abolish the exclusion clause from application of the Complaints against Administrative Acts Inquiries Act (Article 4-1-10). 14) Review the clauses as related to the refugee recognition system a- Take adequate measures to operate effectively the system of providing temporary asylum upon landing (Article 18-2). b- Abolish the provision (Article 61-2-2) that requires an asylum seeker to apply for refugee status within 60 days after arriving in Japan. c- Apply no procedure for deportation (including detainment) to an asylum seeker who is applying for refugee status. 1-2-3 Establishing a new refugee recognition law Enact a new refugee recognition law characterized by positive reception of asylum seekers (obligation to receive), an independent refugee recognition mechanism, smooth recognition of refugee status and support of refugees for adaptation and security of livelihood. (Details will be discussed before making a final proposal.) 1-2-4 Abolishing the Alien Registration Law The Law shall be abolished. Residents of foreign nationality shall be deemed as residents as specified in Article 10, Local Government Act. Legal amendments as necessary should be provided to enable such residents to register themselves as such in conformity with the Basic Residents Ledger Act. (See 7-1.)

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