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NGO Information in Regard to the Fifth Periodic Report of the Japanese Government on the International Covenant on Civil and Political Rights (ICCPR)

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• On the Fifth Periodic Report of the Japanese Government
• From the perspective of Buraku problem
• From the perspective of Korean residents
• From the perspective of migrant workers
• From the perspective of Ainu issue
• From the perspective of Okinawa

Contents

Identifying Problems in the Fifth Periodic Report of the Government
Problems from the Viewpoint of Buraku Discrimination
Problems in View of the Realities for Korean Residents in Japan
Problems from the Perspective of New Comers and Migrant Workers
Article 27 of the ICCPR and Japan's Ainu Policy
Issues Arising from the Historical and Current Perspectives of Okinawa

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Identifying Problems  in the Fifth Periodic Report of the Government

Masanao Murakami
Professor, Osaka School of International Public Policy

1. Not Responding Directly to the Concluding Observations

In some sections, on issues regarding the interpretation of the Covenant in particular, the fifth periodic report (hereinafter, the Report) does not seem to be responding directly to the Concluding Observations.

(1) On the Committee's comments drawing attention to the interpretation that Article 27 may not be restricted to citizens[1], the Report only explains about the situation regarding Ainu people in regard to this Article, giving the impression that the Government is implicitly refusing the Committee's interpretation.

(2) On the Committee's indication that the phrase “one's own country” in Article 12 of the Covenant is not synonymous with “the country of one's own nationality,” but also includes “foreigners who are second- or third-generation permanent resident in Japan and whose life activities are based in Japan“ and “permanent residents like persons of Korean origin born in Japan[2].” the Report merely mentions the “special cases” for special permanent residents, and nothing on the relevance of the Committee's interpretation.

(3) On the issue of the limitations on the scope of Habeas Corpus Law set by rule 4 of the Habeas Corpus Rules, the Committee indicated an incompatibility with Article 9 of the Covenant, but the Report just responds that the Observations were distributed to the Supreme Court, where, as the Government understands, they are being carefully studied[3]. It is questionable, whether the response, which seems to be equivalent of having “dumped” the issue onto the Supreme Court, would satisfy the Committee.

2. Problems Regarding Persuasiveness

(1) On the Committee's questioning the application of the re-entry permit system to permanent residents, the Report just repeats the explanation of the system.

(2) On the treatment of detainees, the Committee expressed its concern on the “lack of a credible system for investigating complaints by prisoners,[4]” yet the Report introduces the “opinion boxes placed in the immigration detention facilities” as measures taken in response to this recommendation[5]. These do not seem to be the kind of “systems” that would satisfy the Committee's concerns, and it raises questions on whether it is convincing.

If the draft Human Rights Protection Bill, which provided for a creation of a Human Rights Commission had been adopted, it is likely that measures corresponding to the Committee recommendations would have been in place, but it would have raised further questions of whether the draft Bill would produce an “independent mechanism[6]” or “independent body or authority[7]” called for by the Committee, mainly because of its expected position of being placed under the Ministry of Justice.

3. Internationally Unacceptable Interpretations of the Covenant

The Report includes some interpretations of the Covenant, which are not internationally accepted.  

(1) The Report explains under “Detention in the Immigration Facilities” in regard to Article 9, that deportation procedures do not fall under the Article, because they are not criminal procedures[8]. This interpretation differs from the one indicated by the Committee, which has interpreted the Article as being applicable to all persons deprived of their liberty, except for those provisions, which by their wording, is applicable only to those who are subject to criminal procedures[9]. The Report also seems to be contradicting itself, as it provides considerable explanation on such issues such as “Medical Treatment under the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases under the Condition of Insanity,” and other laws also under Article 9[10]. Deprivation of liberty under these laws is a deprivation by administrative authority as in the deportation procedure.

4. Reporting on Systems and Institutions

The Report contains a considerable amount of explanations on the systems and institutions and in many cases, none on the operation of the systems, or the assessment of their effectiveness.

(1) In regard to daiyo kangoku (substitute prisons), it explains the system, and that the detainees are treated in accordance with the international rules and guidelines[11]. It also states that there is a strict separation between the police section in charge of the treatment of detainees and the section in charge of criminal investigations[12]. These are all explanations about the system and the principles.

5. Giving Wrong Impressions

(1) The explanation regarding the Buraku discrimination is not wrong, as far as it is an explanation of the chronology of events. But the way it is written, gives the impression that there was no longer any need for special policies, and that the discrimination against the Buraku people has been nearly eliminated. The fact that the discrimination still exists and that it is a serious problem is well known.

A problem, not in the reporting, but in the human rights situation in regard to the Covenant is that for many of the concerns, indications of violations of the Covenant and recommendations for improvement raised in the Concluding Observations in 1998, or in 1993, no measures have been taken, such as on issues of discrimination against children born out of wedlock, Korean residents, Ainu people and Buraku people, the duty of foreign residents to carry certificates of registration at all times, issues related to the death-penalty, treatment of detainees and the system of daiyo kangoku (substitute prisons).

for more

Kenzo Tomonaga

Director, Buraku Liberation and Human Rights Research Institute

Recommendations Made by the HRC on the Fourth Periodic Report, and Responses of the Government in the Fifth Periodic Report

On November 19, 1998, the Human Rights Committee made the following observations in regard to Buraku problem^**1 after it considered the Fourth Periodic Report on ICCPR submitted by the Japanese Government:

15. With regard to the Dowa problem, the Committee acknowledges the acceptance by the State party of the fact that discrimination persists vis-a-vis members of the Buraku minority with regard to education, income and the system of effective remedies. The Committee recommends that the State party take measures to put an end to such discrimination.

Does the Fifth Periodic Report of the Japanese Government base on the above recommendation? In short, we are obliged to conclude that the fifth periodic report does not base on the recommendations.

No Statements of the Reality of Discrimination in the Employment and Education

The government takes the stand regarding Buraku problem in such a way that as the measures taken by the state and local public authorities have contributed to a fundamental solution of Buraku problem, the special measures under the "Law on Special Measures" was terminated. It is clearly indicated in the statements made in the fifth report: “As a result of the efforts of the national government and local authorities over many years, large improvements, including those in the living environment, have been realized, rectifying the gap that had existed in various aspects, and the conditions in Dowa districts have largely improved,” and “Taking into account these circumstances, with the expiration of the Law regarding the Special Fiscal Measures of the Government for Regional Improvement Projects on March 31, 2002, it was decided to end special polices to resolve the Dowa problem.”

It is true that the habitat of Buraku areas has improved through special measures under the “Law on Special Measures” that was effective for 33 consecutive years from 1969 until the end of March 2002. However, in the fields of employment and education that are key to solution of Buraku problem, to date clear gaps have still existed. It is articulated in the opinions presented by the Council for Regional Improvement Measures in May 1996. The opinions were made based on the 1993 “survey to find the actual conditions of life in Dowa districts” conducted by the government. In the opinions, the Council pointed out: 1) The percentage of progression to high schools among students of Dowa districts is still lower than the national average by several points; 2) The percentage of those high school students who completed the three-year-course among Buraku students is apparently lower than the national average; and 3) the employment among residents of Dowa districts is rather unstable in comparison with the national average, and the annual incomes of households in Dowa districts concentrate in the lower levels.

Since 1993, the Government has not Conducted a National Survey to Find the Actual Conditions of Dowa Districts

The government has not made any national survey to find the actual conditions of Dowa districts since 1993 when it did so last time. At the local governmental level, the survey has been done in different prefectures. These surveys at the local level reveal the still-difficult conditions in the employment and education of Buraku. For example, Osaka Prefecture conducted a survey in seeking for solutions of Dowa problem in 2000, and the Osaka Prefecture's Dowa Measures Council made the report based on outcomes of the survey in 2001. The report discussed about the actual conditions of Buraku districts located in Osaka Prefecture by stating: 1) Drop-out from high school is relatively high among Buraku students; 2) An apparent gap still exists in regard to progression to colleges between Buraku students and non Buraku students; 3) Ownership of computers and use of the Internet among Buraku residents remain a half of those of the national average; and 4) Unemployment rates among younger generation and those in their 40's in Buraku districts double the averages of Osaka Prefecture.

Still-serious Situation of Marriage Discrimination

The fifth periodic report states that marriage between a Buraku person and a non-Buraku person has become the majority, suggesting the solution of marriage discrimination by stating, "Marriages between Dowa district residents and non-Dowa district residents make up the majority of marriages among young people, so it seems that discriminatory attitudes are also steadily disappearing."

It is true that marriages between Buraku persons and non-Buraku persons have been on rise, thanks to the efforts of Buraku liberation movement and fruits of educational activities. However, it does not mean that discrimination at the time of marriage has been eliminated. It often occurs that engagement is broken off under the action of Buraku discrimination. Even if couples eventually marry, it occasionally happens that relatives of the non-Buraku marital party do not attend a wedding ceremony, and worse, they disconnect association with the couple. The fifth periodic report does not refer to these problems at all.

Personal Background Investigation by Private Investigative Agencies not Eradicated

In regard to the respect of privacy under Article 17, the fifth periodic report describes personal background investigations conducted by credit agencies as follows:

296:  Since there is a significant risk that illegal background checks carried out by credit agencies would encourage discrimination with respect to marriage, dating and gaining employment, in cases where a human rights infringement has been confirmed the human rights organs under the MOJ carry out an appropriate response based on the facts of the case. For example, they instruct and urge the perpetrator and the persons concerned to have respect for human rights.

The above statement does not touch upon the facts that illegal acquisitions of family register frequently occurs, and that new versions of Buraku List have been discovered, especially in the digital format, since the end of 2005. To address these serious problems, only "instructions and education for those involved" is totally insufficient, and drastic measures such as legal restrictions or drastic changes to related laws are needed.

Frequent Occurrence of Discriminatory Propaganda or Incitement on the Internet

The fifth periodic report discusses about discriminatory propaganda and incitement on the Internet in relation to Article 20: Prohibition of Propaganda for War. In recent years, discriminatory graffiti and anonymous letters with the intention of Buraku discrimination have been on the rise. At the same time, discriminatory propaganda and incitement to Buraku discrimination on the Internet have been on the rise to such an extent that it cannot be overlooked any more. In this regard, the fifth periodic report sheds light on the fact that Japan does not have any law that prohibits “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Even perpetrators who sent discriminatory letters or disseminated discriminatory information on the Internet are arrested and sanctioned, they are charged under the name of intimidation or defamation. As a result of absence of specific law, it is hard for a conventional wisdom to develop among people that these acts constitute intolerable crimes. Japanese Government has reserved Article 4 (a) and (b) of the ICERD at the time of its ratification. Faced by the present conditions including malicious graffiti or letters in full of discrimination against Buraku and the increase of discriminatory propaganda or incitement on the Internet, the government is indeed urged to cancel the reservation and develop national laws that do not condone and do punish these acts.

Other Critical Problems

There has been a problem of unachieved disclosure of evidence in relation to the third request for re-trial for the Sayama Case^**2. Human Rights Committee has already made a recommendation stating that disclosure of evidence is essential to guarantee a fair trial. To date, the judicial authorities have failed to disclose evidence (including the list of evidence) in regard to the Sayama case.

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**1:  Researchers and people who are involved in the Buraku liberation movement use the terminologies of "Buraku" to refer to the neighborhood, "Burakumin" to refer to those who reside in Buraku or those who are from Buraku, and "Buraku problem" to refer to it as a social problem. On the other hand, administrative authorities such as the national and local governments refer to these as "Dowa district," "People with Dowa backgrounds" and "Dowa problem," respectively.

**2:  It is a kidnapping and murder case of a girl high school student occurred in Sayama City of Saitama Prefecture on May 1, 1963. As the perpetrator of the case, Kazuo Ishikawa with Buraku backgrounds was unlawfully arrested, and the Supreme Court decided on the sentence of life imprisonment on him in 1977. Re-trial has been called for as he has been falsely accused because of his Buraku backgrounds. In May 2006, the third request for the re-trial was submitted to the Supreme Court.

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Problems in view of the Realities for Korean Residents in Japan

KANG Yoo-Mi
Lawyer

1.　Introduction

The fifth periodic report prepared by the government refers to Korean residents in Japan only in terms of “Awareness-raising activities to eliminate prejudice and discrimination”, “Obligation to carry the Alien Registration Certificate” and “Korean schools,” paying little attention to “Concerns pertaining to Korean residents in Japan”.

2.　“Special Permanent Residents” Are Not the Only Group of “Korean Residents in Japan”

The term “Korean residents in Japan” refers to those who had been forced to reside in Japan under the Japanese colonial rule and their descendents. In this regard, they are consistently called “special permanent residents” in the fifth periodic report of the government, as is the case in the part on “Obligation to carry the Alien Registration Certificate”.

However, those who could not return to Japan within a specified period for re-entry or those who had left the country without valid re-entry permit are treated as newcomers, thus being deprived of the status of “special permanent resident”. There are also “permanent residents in general” who applied for and were granted permanent residence as foreigners in general, and “long-term residents” who have not applied for or were denied permanent residence as general foreigners.

Therefore, the concept of “Korean residents in Japan” cannot be replaced by that of “special permanent residents,” which reflects the status granted only to those who meet specific legal requirements. Not only ignoring the historical contexts of “Korean residents in Japan,” such replacement would lead to disregard to the stability of legal status of part of this group.

3. On “Awareness-Raising Activities to Eliminate Prejudice and Discrimination”: Insufficient Nature of “Awareness-Raising Activities”

The fifth periodic report states that, “as one of their activities to protect the human rights of foreign nationals,” the authorities “are carrying out encouragement activities including activities to eliminate prejudice and discrimination against Korean residents in Japan.” What is essential in order to eliminate prejudice and discrimination against “Korean residents in Japan,” however, is to make their historical backgrounds widely known.

The fifth periodic report also refers to the distribution of pamphlets and leaflets as part of the responses to harassment, etc. against Korean children and students residing in Japan, which occurred in connection with “the issue of abduction.” While the government report goes on to state that the authorities “have called on Korean children and students residing in Japan to consult with the human rights organs under the Ministry of Justice (MOJ) if they are targeted with harassment,” there have been no cases of “awareness-raising” undertaken by the MOJ in response to such complaints. It can be said, on the contrary, that the general situation of “Korean residents in Japan” has worsened since the emergence of “the issue of abduction.” This is illustrated, for example, by a civil lawsuit filed by a Korean resident who has worked as a salesperson using his real name; he has claimed damages for the injury caused by slanders by his client, including by the words such as “You are a spy of the North [Korea]”.

Since awareness-raising activities are not enough, what is currently required in Japanese society is to take legislative steps against these kinds of discrimination. The UN Committee on Economic, Social and Cultural Rights also endorsed such a view, “strongly recommend[ing] that the State party strengthen its non-discrimination legislation” in 2001 (para. 39 of the concluding observations). There is no reference, however, to this recommendation in the government report.

4. On “Obligation to Carry the Alien Registration Certificate”: No Changes to the Everyday Security Control

While the fifth periodic report positively describes the modification of the sanction for violating the obligation to carry one's alien registration certificate at all times, from a criminal penalty to an administrative penalty, it also state, “Given the current situation in Japan in which there are a large number of foreign nationals who have entered or have been staying in Japan illegally, [the government intends] to maintain the system of obligating foreign nationals to carry the alien registration certificate at all times”.

The modification only applies to “special permanent residents”; other foreigners continue to be subjected to the penal sanction if they violate the obligation. Moreover the sanction applies as soon as foreigners other than special permanent residents become 16 years of age, when they are obliged to register themselves in the alien registry.

5. On “Korean Schools”: Korean Children Who Go to Japanese Schools and to Ethnic Schools

The fifth periodic report states, “Children of foreign nationals without Japanese nationality can receive all compulsory education at Japanese public schools free of charge if they wish so”.

Compulsory education at Japanese public schools is not the right of foreign children, however, being provided only on the basis of the expression of their wish as such. Consequently, in Kyoto City, the principal of a public school at the lower secondary level has treated a Korean student residing in Japan as having been expelled, arguing that he could expel students of foreign nationality because they are not covered by compulsory education. Legality of such treatment is being challenged at court.

The fifth periodic report also makes positive references to the expansion of the eligibility to take the University Entrance Qualification Examination and to the broadening of the eligibility to apply for admission to universities. The eligibility to apply for admission to universities is not recognized unconditionally, however; indeed some private universities still do not recognize the eligibility of graduates of Korean schools. In addition, the authorities in Tokyo and then in Osaka took legal action to recover the sites of Korean schools, making it unstable to secure “places of learning” for Korean students.

6. Other Issues: Disregard to a Variety of Concerns Pertaining to “Korean Residents in Japan”

The fifth periodic report makes no reference to such issues as: the stabilization of legal status of those foreigners other than “special permanent residents”; the system of re-entry permit; the right to hold public offices; social security systems; the right to participate in local politics; discrimination in housing and employment; and harassment against Korean residents in Japan, including through publications such as Hate the Korean Wave.

             

The protection and promotion of minorities' human rights leads to the modification of awareness among the majority and hence to respect for human rights in the society as a whole. The government of Japan is expected to take proactive measures for the elimination of discrimination.

Masao Niwa
Lawyer

I. Acceptance of Foreign Workers

The Fifth Periodic Report of the Government

In relation to "b) Acceptance of Foreign Workers," the report makes the statements in connection with Article 2: Obligation to Implement the Covenant. (paras 39, 40, 41, 42 and 43)

Problems

(1) "Nikkei" and "Trainees"

Considering the shortage of young labor force faced by the domestic business community, the Immigration Bureau took the two alternative solutions to address the problem by accepting "Japanese descents (Nikkei)" and "trainees." The acceptance of “Nikkei” was mainly based on jus sanguinis justifying that “they have a connection by blood with our society.” Officially they were accepted for the purpose of visiting their relatives, it was the introduction of labor force with no work-related restrictions. Meanwhile, the “trainee” program was introduced with the official purposes of technical transfer or human resource development for the sake of developing countries, but in the reality, it was the introduction of labor force from abroad under the three-year-rotation system that was later combined with the “on-the-job training system” in 1993.

“Japanese descents (Nikkei)” consist of the descents of Japanese immigrant abroad (2^nd and 3^rd generations) and their relatives. Many of Nikkei workers were not directly employed by Japanese companies, but employed as contract workers or temporary helpers, with insufficient guarantee of basic labor rights that they deserved to. Many of them worked at small companies, and some of these companies do not join the public social welfare scheme. “Trainees” amounted to 70,519 as of the end of 2006. Human rights problems of “trainees” frequently occur in the setting where consortiums of small-medium businesses are primary receivers of trainees. Besides the official reasons of technical transfer and skill training, many of these consortiums actually receive trainees for the reason of cheap labor. There are many companies which force them long-hour work or over-time work under the name of on-the-job training that does not require pay, take their passports away, and do not give required classroom lectures. On-the-job trainees who the labor law is applicable receive pay after deduction of various nominal expenses.

(2) Revision of Employment Promotion Law Concerning the Control of Foreign Residents

Under the Revised Employment Promotion Law passed in June 2007, all types of business proprietors are obliged to give information on employment of all foreign nationals to the Ministry of Health, Labor and Welfare, except for those who have special permanent residence status. The revised law allows such information to be given to the Ministry of Justice for the purpose of its immigration control. This new reporting system could facilitate restriction of rights of all workers including migrant workers as it could change the nature of welfare and labor legislation to the one for criminal prevention or security maintenance.

II. Protection of Human Rights of Foreign Nationals

The Fifth Periodic Report

In regard to human rights protection for foreigners, the report touches upon it in the following paragraphs in connection to Article 2 of the Convention (paras. 46, 47, 48 and 49):

Problems

(1) In October 2003, four organs including the Ministry of Justice, Tokyo Immigration Control Bureau, Tokyo Metropolitan Government and Tokyo Metropolitan Police Dept issued the “Joint Declaration Regarding Consolidation of Measures Against Illegal Immigrants,” hammering out the policies to decrease the number of undocumented foreign residents by half in the next five years. Also December 2004, the governmental headquarters for the promotion of measures against international organized crimes and international terrorism announced the plan of action in regard to the “prevention of terrorism,” indicating the consolidation of passport control at the time of immigration examination and visa applications by taking fingerprints or facial information, stricter identity verification of foreign guests by hotels and inns, and refusal of entry or forced deportation against those who are recognized as terrorists through ministerial consultations. On June 6, 2005, the Ministry of Justice announced “the draft policy for review of immigration control processes and systems,” indicating its intention to use biometric technologies and to reinforce general control functions of information.

(2) In the present Japan, the tendency towards “discrimination and exclusion” has emerged at different levels including official remarks of public authorities or government officials that encourage discrimination, refusal of entry into shops, refusal of occupation of apartment rooms by foreign residents and ethnic minorities, and violence against Zainichi Korean children. The Japanese government should have followed the recommendations made by the HRC on its fourth periodic report, and improved its legislation as to regulate various forms of racial discrimination and to remedy victims. However, the present legislation of Japan concerning foreign nationals does not include any law on their basic human rights or prohibiting racism and racial discrimination. Also, it does not create a national human rights institution independent from the government.

III. School Education for Foreign Children  

    

The Fifth Periodic Report

The fifth periodic report discusses about education for foreign children such as foreigners schools in relation to Article 2 of the Covenant (para 55):

Problems

(1) According to the 2006 basic school survey conducted by the Ministry of Education, Culture, Sports, Science and Technology, as of May 1, 2006, children with foreign nationalities who enroll at Japanese (both public and private) primary and secondary schools and schools for disabled children amounted to 76,481. Of all, 22,413 students did not understand Japanese. While some Japanese schools teach Japanese language for such students, almost no schools give them the education to develop and maintain their national or ethnic identity. Also, their rights to have regular education in their mother tongues are not guaranteed

(2) Most of recently established foreigner schools are not given the approval as “schools in miscellaneous category,” and they are simply treated as the so-called “dame school.” These foreigner schools are not given tax incentive for any donations they receive, while they do not receive any subsidies from the national or local governments. In addition, they have to pay tax for fixed assets and put consumer tax on their tuitions.

IV. Gender Equality

The Fifth Periodic Report

In relation to Article 3, the report describes it in paragraph 110:

Problems

Regarding the protection of victims of trafficking, the Immigration Control and Refugee Recognition Act was modified in June 2005 so that being a victim of trafficking is considered as grounds for special residence permission. Accordingly, the victim is accepted by public woman consultation centers for temporary protective custody, and public woman consultation centers can ask private shelters for temporary protective custody of victims. These women could also get support for going home through the International Organization for Migration. However, since the police or immigration authorities make a judgment whether the concerned person is a “victim” to be protected or not, it is questioned if the objectivity is secured.

V. Finger-printing System and Obligation to Carry the Alien Registration Certificate

The Fifth Periodic Report

Regarding the fingerprinting system and obligation to carry the alien registration certificate, the report states the following in connection with Article 2 of the Covenant (paras 38 and 54):

Problems

(1) The amended Immigration Control Act of May 17, 2006 requires the provision of personal information  (including fingerprints, facial pictures, and others that help identification of individuals) taken by electronic device at the time of landing for all foreign nationals (except for those with special permanent residential visas, and those aged under 16). Such personal information taken from foreign nationals at the time of immigration control are to be stored in the database, which is used not only for controlling their residence-related information, but also for criminal investigation if required by investigative authorities and for any other purposes required by other government ministries. Personal information stored in the database will be kept by the Immigration Bureau of the Ministry of Justice for 70 or 80 years.

(2) It is an excessive burden on those with permanent residence visas and long-term visas to impose obligation to carry the alien registration identification all the time. When it is infringed, they are subject to the penal sanction with a fine at the amount of up to 200,000 yen (100,000 yen for special resident visa holders). It is irrational, and violates Article 26 of the Covenant. It also violates Article 12 in the light of impeding free movement.

IV Detention and Deportation of Foreign Nationals

The Fifth Periodic Report

The report discusses about the detention and deportation of foreign nationals in relation to Article 9 “liberty of person” and Article 13 “deportation of foreign nationals” in the following way.

Problems

(1) As of September 7, 2007, foreigners detained in the Immigration facilities (including detention centers) amounted to 1,636. Of all, 108 foreigners have been detained for more than six months, indicating that the problem of long-term detention is still to be solved. Also, those detained who are under age amount to 12.

(2) The immigration authorities have practiced the policy to detain all those cases that reasonably show suspicion of reasons for being deported, so that the authorities do not need to make any decision whether persons concerned need to be detained or not. Because of this, those who apparently do not intend to run away and those who do not need to be detained such as children, elderly persons, persons under medical treatment and pregnant women are also detained.

(3) The government report explains that the decision on one's deportation is made carefully passing through the consideration at three different steps, i.e. immigration inspectors, special examiners and Minister of Justice. However, these procedures take place in the same administrative organization, the Ministry of Justice, and not going through judicial procedures, thus lacking fairness and objectivity. The three-step-procedures are limited to the examination on presence/absence of reasons for deportation, and only for exceptional cases, the Minister of Justice may mercifully grant a special residence permission when circumstances allow.

(4) The government report states that the new complaint system has been implemented. But the system is only applied within the procedures of the immigration office, and does not meet what the concluding observations on the fourth periodic report recommended, “independent authority to which complaints of ill-treatment by the police and immigration officials can be addressed (para 10).”

VII. Policies regarding Asylum Seekers

The Fifth Periodic Report

Regarding its policies towards the asylum seekers, the report discusses in paras. 266 – 269, in connection with Article 12 of the Covenant: Liberty of Movement and Freedom to Choose the Place of Residence.

Problems

Under the new system permitting “a temporary stay,” those who have followings conditions are not allowed permission: 1) those who apply for refugee status after six months from the entry; 2) those who entered Japan not directly from the territory where they may be subject to persecution; and 3) those who show enough reasons for being suspected of possible escape. For cases relevant to any of these conditions, the procedures of detention and deportation are applied to (but, actual repatriation is suspended). In the reality, many asylum seekers submit refugee applications after six months from their entry. Also, most of them who submit applications have entered Japan passing through a third country. The new system permitting “a temporary stay” with the above three conditions is likely to confirm the reality of detention and deportation of many asylum seekers.

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Takemasa Teshima
Teacher, Fukuoka Prefectural University

I. Introduction

The purpose of this paper is to discuss the problems of the current Ainu policy as presented in the section of Article 27 of the fifth periodic report of the Japanese government submitted under Article 40 para. 1 (b) of the International Covenant on Civil and Political Rights. In the first place, it reviews the issues that the author himself and the Human Rights Committee pointed out in relation to the fourth periodic report of 1997, as well as the “homework” which the Committee on the Elimination of Racial Discrimination and Doudou Diène, the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance assigned to the Japanese government afterwards. The review shows that those issues and the “homework” remain untouched and that the present report merely propagandizes the government's measures to promote Ainu culture and to improve the living standard of the Ainu people.

II. Measures to Promote Ainu Culture and to Improve Their Living Standard

1. The Ainu Culture Law of 1997

Neither of the measures to promote Ainu culture and to improve the living standard of the Ainu guarantees the rights of the Ainu people, and there is no explanation in the present report of how the Japanese government protects their right to enjoy their own collective ethnic culture as stipulated in Article 27 of the Covenant. Although the government boasts of the success of its cultural policy based on the 1997 Ainu Culture Law, it has never conducted any elaborate study of the effects of the 10-year-old law. The government's evaluation is too optimistic.

2. Improving the living standard of the Ainu people in Hokkaido

In regard to the other pillar of the present report, i.e., the policy for “improving the standard of living of the Ainu people in Hokkaido,” the government stresses the provision of subsidies and its efforts to secure and increase the budget. The national government, however, only plays a secondary role in this policy area, as well. It obtains the necessary information about the actual living conditions of the Ainu people indirectly through the “partial survey” of the Hokkaido local government, which suggests the lack of seriousness on the part of the national government and the resultant poverty of the national policy. The unfortunate reality of today is that in spite of the superficial appearance of the improvement of living and the reduction of socio-economic gaps between Ainu and non-Ainu residents in Hokkaido, there still persists the downward spiral structure of discrimination and oppression that the author pointed out nearly twenty years ago.

III. Perspectives Needed for the Protection of the Right to Enjoy Culture

Having pointed out the problems of the reported measures, the article goes on to present some issues in relation to the government's cultural promotion measures and to the protection of the right to enjoy one's own culture by taking up some important incidents that have taken place since the submission of the previous report but of which the present report makes no mention at all.

1. Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples

As a perspective necessary for the protection of the right to enjoy one's own culture, the article refers to the joint papers of Yozo Yokota, a member of the Sub-commission on the Promotion and Protection of Human Rights, and the Saami Council on the principles and guidelines for the development of the standards regarding the protection of the heritage of indigenous peoples, and points out that the guiding principles contained in their papers have significant implications for the implementation of Article 27 by the Japanese government in the future. The current governmental measures for cultural promotion completely lack the perspective that the protection of the heritage of indigenous peoples must be “based on the right to self-determination,” including the sovereignty of indigenous peoples over the natural resources on their lands and territories and that the control by indigenous peoples of their lands, territories, waters, and resources is essential for their cultural transmission and development.    

2. The Court Judgment in the Nibutani Dam Litigation

What has presented a very significant issue in relation to Article 27 but has been totally ignored by the government in the present and previous reports is the decision put forth by the Sapporo District Court in the “Nibutani Dam case” in May 1997. The court found that the Ainu people are a “minority” mentioned in Article 27 and an indigenous people at the same time, and concluded that because “the Ainu culture of the region in question and the nature including the land that has nourished it are in a close, inseparable relationship,” the construction of the dam makes it difficult to transmit “the ethnic, cultural, historical, and religious values of the Ainu people.” The decision calls for a broad perspective in safeguarding the right of the Ainu people to enjoy their own culture. In spite of the presence of the dam that violates the Ainu people's rights, the government's reports make no mention of this case at all.  Although the government affirms that “there is no room for arbitrary use of the concept of ‘public welfare' by the State,” this was the very case in which the State was sternly indicted for taking advantage of that concept to “unjustly underestimate or disregard” and illicitly violate the cultural rights of the Ainu people, “the elements and values which should be regarded as most important from the start.”

3. The Litigation over the Common Property of the Ainu People

Another important case that the government does not mention at all is the litigation regarding the historical management of the common property of the Ainu people. In the case which the Supreme Court dismissed in March 2006 without examining the present situation and the historical management of the property for the period of nearly three-fourths of over a hundred years, the plaintiffs argued that the supplementary procedural provisions of the Ainu Culture Law to return Ainu common property “unjustly underestimate[d] or disregard[ed] the ‘values of the culture' of the Ainu people,” thereby doing tremendous damage to their cultural rights that ought to be protected under Article 27.

4. “Japan-as-Mono-Ethnic” Statements

The statements repeatedly made by leading politicians of the ruling party and the cabinet extolling Japan as a “mono-ethnic” or “nearly mono-ethnic” country influence the making of the common belief of the public through the media and nurture a tacit oppressive environment that makes it difficult for the Ainu people and other minorities to freely use their different languages and practice their own culture and religion. Such remarks, therefore, contaminate the social environment for realizing the spirit of Article 27. Nevertheless, the government takes no measures to prevent or punish them, which violates Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. 

IV. In Lieu of Conclusion

The Ainu people have been clearly seeking to be recognized as an indigenous people since their first participation in the U.N. Working Group on Indigenous Populations in 1987. Article 3 of the U.N. Declaration on the Rights of Indigenous Peoples adopted in 2007 stipulates the right of indigenous peoples to self-determination. The Japanese government keeps refusing to recognize the Ainu as an indigenous people and to speak of their right to self-determination under Article 1 of the Covenant through the manipulation of the translation of “peoples.”

Okinawa comprises only 6% of the total area of Japan, and 10% of its population. It has continuously been dismissed as insignificant, ever since the annexation of Ryukyu in 1879 until today. There was the assimilation education before World War II, and through Kominka (transforming into Imperial subjects) as well as militarization during the “15 Year War.” In the Battle of Okinawa, in which more than 200,000 people lost their lives, residents were seen as spies, slaughtered, forced to commit “mass suicides” and executed.

For the 27 Years During the Military Dictatorship Rule, Fundamental Freedoms and Rights were All Denied

Crimes by the U. S. military continued during the Vietnam War and Iraq War, and the military facilities caused huge damages to the people. Even today, after Okinawa was returned to Japan, the discrimination and unfavourable treatment of Okinawa did not change, with the Treaty of Mutual Cooperation and Security between Japan and U.S., regarding Facilities and Areas and the Status of United States Armed Forces in Japan (U.S.-Japan Status of Forces Agreement) and the realignment of the U. S. forces.

The Omission of Okinawa in the Fifth Periodic Report of the Government

In the Fifth Periodic Report of the Japanese Government, there is no mention of the discrimination and prejudice against Okinawa. Unlike other prefectures, Okinawa, caught between Japan and the U. S. for 27 years after World War II, had been a “human rights wasteland,” placed outside of the scope of the Constitution. It had no right to self-determination due to the “extraterritoriality” protecting only the privileges of the U. S. military, and policies prioritizing military matters were pursued.

There are countless abuses, including forceful deprivation of land, travel bans by U. S. military orders and decrees, assignment of head of administration, suppression of the freedom of expression and assembly, and interference in establishment of unions. In the 36 years after the return to Japan, the situation has been continued by the Japanese state. Nuclear facilities were strengthened, and the Japanese forces (Self Defense Force) were newly deployed, following the U. S. forces. Although the people aspired to peaceful islands with no military facilities, their wishes were destroyed. In particular the U. S. right to control the military facilities is the same as the “administrative rights” in the period before the return to Japan, and acts as an excuse for the Government. Anyone entering the facilities (bases) provided by the Japanese government will be punished under the Special Criminal Act (under the U. S.-Japan Mutual Treaty). We are not allowed to take photographs. Although the land may be part of the prefecture, foreign forces can freely enter areas where the people are living. The people cannot enter the facilities at all. This is an enormous contradiction.

Because of this restriction, when there is a crash accident by U. S. military aircrafts, oil or fuel spills or crimes by military personnel, the prefectural or municipal authorities cannot inspect the sites. The Government does not even protest. The deference given to the U. S. has not changed much since the occupation period and has recently become more apparent.

1. Education towards Assimilation

I would like to take a look back at the discriminatory education by the Government before the war. The abolishment of the feudal Han (domain) and designation of prefectures in 1879 was an outright discrimination of the people of Ryukyu.

Ryukyu had been an independent kingdom for several centuries, and the education policy was to break the bewilderment of the people of the Okinawa and to assimilate them to the civilization of the mainland. The idea itself is discriminatory, seeing Okinawa as “backward.”

Improvement of customs was part of the assimilation education. There was a campaign to cut off the katakashi (topknot) hairstyle of men the Ryukyu period. Stones were thrown at people who opposed the policy, and some were expelled from school. People had to wear Japanese instead of Ryukyu style clothing, and had to wear shoes instead of going barefoot.

2. Kominka Education

When the Imperial Restrict on Education was distributed to each school in 1890 (23^rd year of Meiji), it was treated with great importance in school ceremonies along with the photograph of the Emperor. School sports events would include competitions in carrying straw rice bags, and judo, kendo, as well as naginata (pole sword) became regular part of physical education.

During the Japan-Sino War and the Pacific War, the Kimigayo (current national anthem), the hinomaru (current national flag) and other military songs were forced on us.

We could not go to school in higher education unless we memorized the Imperial Restrict. Bowing our heads in the direction of the Imperial Palace became an official school event. Military officers were assigned to high schools and drills and review of troops were introduced.

3. Local Dialect Ban

The elimination of the Ryukyu Dialect and promotion of standard Japanese was pushed through as one of the priorities in the assimilation education.

The feature of the assimilation education was to eliminate the Okinawa character, and measures were taken to change the language, customs and practices to those of the mainland. Traditional culture, including music and dance, was looked down on and discriminated.

This was reflected overwhelmingly in the military. Soldiers from Okinawa were hit during training or lynched, because they could not understand Japanese very well. People refused the draft, escaped or emigrated legally. After World War II, people from Okinawa were discriminated in places such as Osaka and Kanagawa, where many of them lived. The use of the dialect was prohibited in schools at the end of 1900.

Before the war, women working in spinning mills were discriminated and marginalized, because they could use only the dialect. In the Battle of Okinawa, military orders were issued stipulating that anyone using dialects would be considered as a spy, and some civilians were executed by Japanese soldiers.

4. Jinruikan (House of Anthropology) Incident and Ethnic Discrimination

In March 1903 two Okinawa women were put on display at the Gakujutsu Jinruikan (Academic House of Anthropology). They were introduced as if they were monkeys or other kind of animals, and were shown as if the customs of Okinawa was something exotic for the people of the mainland. It goes without saying that there was protest from the people of Okinawa.

5. The U. S. Military Helicopter Crash at Okinawa International University

In August 2004, a U. S. military helicopter crashed on the Okinawa International University, and caused a fire.

Schools must be safe, but there have been disasters involving the residents. The U. S. military refused to allow prefectural police to inspect the site or the crashed craft, as well as to question the crew. They also carried away the ground, which was seen as being contaminated by depleted uranium ammunition

Last year, a U. S. military armored vehicle entered the grounds of the Okinawa Prefectural High School for Disabled Children, creating an uproar. There is increasing distrust towards the U. S. military, which does not even comply with the “Japan-U. S. Status of Forces Agreement.”

6. The Textbook Revision

After the return to Japan in 1972, the textbook examination system was introduced in Okinawa. Not only did this lead to a decrease in the texts on Okinawa, but the history of the Battle of Okinawa was distorted into a glorification of the war, so that the Himeyuri student nurse corps and Tekketsu Corps of mobilized students were described as having willingly cooperated in the battles and sacrificed themselves to the country. Furthermore, the text on the forced “mass suicide” by the Japanese forces in Zamami and Tokashiki was deleted. 116,000 people participated in a rally calling for the retraction of the Textbook Approval Council opinion. But the Ministry of Education, Culture, Sports and Science continues to ignore the views of the people of Okinawa, saying that there was no “order” or “coercion” by the Japanese military.