List of Issues to be Taken Up Regarding the Rights of Foreigners

Dong-Hoon Kim,Professor of Ryukoku University

In May 2000 BLHRRI sent the UN Committee on Economic, Social and Cultural Rights information regarding the reality of discrimination against Buraku people and foreign residents in Japan. The information was prepared prior to the Pre-sessional Working Group held in May to hear from NGOs regarding the actual situation of the implementation of Covenant. Following the last issue printing the information on the Buraku issue, we carry the information on foreign residents in Japan in this issue.

Implementation of the International Covenant on Economic, Social and Cultural Rights, regarding Discrimination against foreign residents in Japan

I. General Comment

Related Items;

- Status and Rights of Foreigners

- Prohibition of Discrimination

A. Questions :

-What kind of job-category corresponds in concrete to "a civil servant who participates in the exercise of public power or in the public-decision making" for which Japanese nationality is required ?

-Isn't it unreasonable discrimination that teachers with foreign nationality are limited to " full-time instructors" and not allowed promoting to managerial position in the Japanese public education system ?

-What kind of view does the Japanese Government have concerning indemnity for Korean military personnel or civilian employees in the former Japanese military force, who were mobilized and victimized under the colonial regime of Japan ?

-A number of foreign disabled and elderly persons with permanent resident status in Japan are not entitled to pension. What is the reason for this situation ?

-Are foreign schools and alumni thereof entitled to equal treatment with Japanese private schools and their alumni ?

B. Government Report :

-There is no detailed explanation.

C. The Reasons and Background for the Questions :

-The Government of Japan has denied the employment of foreign persons as educational staffs in national and public universities and as civil servants in local governments, for the reason that they participate in the exercise of public power or in the public-decision making. In fact, a number of foreigners are employed as such jobs in recent years. However, the Government yet employ such general and ambiguous standards as "exercise of public power", "public-decision making" or "natural reason", as a reason for limiting the freedom to choose their occupation.

-The Government of Japan has denied the indemnity for the Korean nationals who were forced to have a Japanese nationality, mobilized as workers, military personnel or civilian employees in Japanese military force, and deprived of their lives or personal integrities under the colonial regime of Japan.
This situation is inconsistent with Article 2 (2) and Article 9 of the ICESCR. In this respect, the Human Rights Committee has pointed out that the situation conflicts with Article 26 of the ICCPR stipulating the equal protection of the law. Japanese domestic courts also found that the denial of indemnity by reason of legislative omission is unreasonable.

-In 1982 the Japanese Diet amended the National Pension Act, and by this amendment the National Pension System came to be applicable to foreigners who had been disqualified for it until then. However, persons with disabilities over 20 years old and elder persons over 60 at that time were excluded from its application. No corrective measure has been taken until today.

-Korean schools categorized as the miscellaneous schools are not entitled to public subsidy that other private schools receive. Alumni of Korean schools are denied the qualification for admission to national universities. These situations are the discrimination under Article 2, paragraph 2 of the ICESCR and violate the right to education guaranteed by Article 6 thereof.

II. Report concerning Each Article of the Covenant

1. Policies and Measures to Guarantee the Right to Work (Article 6)

A. Questions :

-Does the Government of Japan have a law or mechanism, in order to prevent Japanese private enterprises from discriminating against foreigners (including Korean residents in Japan) in employment, and to provide the remedy for the victims of such discrimination ?

-What are the law and practice in the fields of the entry into Japan and employment of unskilled migrant workers ? In relation to this question, what is the reason for admitting entry into Japan and granting work permit only to Brazilian nationals of Japanese origin as a special measure ?

-Please explain the details of labor conditions and payment, as well as the legal rules and relief measures for work-related accidents with regard to foreign employees, especially undocumented migrant workers.

B. Government Report :

-The Report only refers to the instruction and education for employers, and does not even point out the necessity of other measures.

-There is no reference to the undocumented migrant workers, the number of whom is reportedly over 300,000.

-The Report by the Government does not refer to the fact that it admits the entry into and stay in Japan for the purpose of unskilled labor, as a special measure to foreign nationals of Japanese origin residing in Latin American countries, including Brazil.

C. The Reasons and Background for the Questions :

-Denial of employment of foreigners in private sector has not been regulated on the ground of the principles of freedom of contract and of autonomy of the parties concerned in the private sphere.

Remedy is available only when victims submit the case to the court invoking the Article 90 of the Civil Law providing that legal action against public order and public morals is null and void. However this procedure costs much and takes long time.

-As a State Party of the International Convention on the Elimination of All Forms of Racial Discrimination, the Government of Japan has the obligation to prohibit discrimination by private enterprises under the Article 2 of the Convention.

-Remedy for the violation of labor rights under the Japanese Labor Standard Law, including non-payment of wages or denial of application of the Workers' Accident Compensation, is left to the efforts of NGOs.

-Current immigration policy, which admits entry into Japan only to Latin American nationals of Japanese origin as unskilled workers, constitutes the discrimination on the basis of ethnic origin, which amounts to racism.

2. The Right to Protection of Family of Foreigners and their Rights to Adequate Housing

A. Questions :

-What is the law and policy concerning nationality and stay of a child, who was born between Japanese male and foreign female, and who has not been acknowledged by his or her father? In addition, What is the treatment of his or her mother ?

-Is there any measure to prevent such discriminatory incidents as foreigners are denied the opportunity to rent housing managed by private individuals ? Is there any measure to remedy for the victims of such discrimination ?

B. Government Report :

-There is no reference at all.

C. The Reasons and Background for the Questions :

-Under the Nationality Law of Japan, unless one of a baby's parents is a Japanese national at the time of his or her birth, the baby cannot acquire the Japanese nationality. For this reason, there are several cases that Japanese father does not acknowledge a baby and mother disappears, and as the result the baby becomes stateless.

-In the case that mother with an unauthorized status is staying in Japan, mother and child could be forced to be separated.

-Though Korean permanent residents in Japan are sometimes denied the opportunity to rent housings managed by private individuals or enterprises, there is no public remedial mechanism. No means are available for the victims other than the civil procedure in the ordinary courts.

-As in the case of denial of employment by private enterprises, the Japanese Government should take measures so as to prohibit discrimination and to remedy the victims of discrimination under Article 2 of the ICERD.

3. Foreigners' Rights to Education and Culture

A. Questions :

-Foreign children studying at Japanese public primary and junior high schools, especially Korean children permanently residing in Japan, are not secured institutionally the opportunity to learn their own language and culture. What is the reason for this situation ?

-Although indigenous Ainu minority is granted necessary aids to establish and maintain their own identity, such aids are not granted to other minority groups, especially Korean minority, the largest minority group in Japan. What is the reason for this situation ?

-Has any measure been taken for Korean minority permanently residing in Japan to restore their own language and culture which had been lost by the assimilation policy (policy of forcing them to become subjects of the Japanese Emperor) under the colonial regime of Japan?

B. Government Report :

-Report says "[t]he learning of mother tongues for foreign students is not authorized as a required subject at primary and lower secondary school; however, it can be provided as an extra-curricular activity".

-In the paragraph concerning measures taken for the promotion of the Ainu culture, the Japanese government says that the government provides supports to the activities necessary to establish cultural identity of Ainu people.

C. The Reasons and Background for the Questions :

-Japan assumes the obligation to ensure the opportunity for national minority to enjoy their own language and culture under the Article 27 of the International Covenant on Civil and Political Rights, and has undertaken that the education of the child shall be directed to the development of respect for his or her own cultural identity, language and values under the Article 29 of the Convention on the Rights of the Child.

-The right of Korean child to learn their own language and culture in school education is the right of minority itself as well as the right of the child. Furthermore, this right is essential in order to restore the language and culture deprived of by the assimilation policy and to establish and maintain the identity as a national group.

-The government of Japan ignores the General Comment of the Human Rights Committee saying that foreigners also enjoy the rights of national minorities. It has neither recognized foreign residents in Japan including Korean nationals as minorities, nor taken any measures necessary to establish national identity.

This attitude constitutes not only the breach of the Article 27 of the ICCPR, but also the denial of enjoyment of the rights to education and culture guaranteed by the Article 13 of the ICESCR and of the right to "freely pursue their ...... cultural development" by virtue of the right of self-determination provided for in the Article 1 of the both Covenants.

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