2nd Quarterly, 2007 No.144

The International Covenant on Civil and Political Rights and Related Challenges for Japan

Problems Identified in the 5th Periodic Report of the Japanese Government

■The 5th Report of the Japanese Government

by Masanao Murakmi
(Professor, Osaka School of International Public Policy)

Since World War II, the international community has seen the adoption of various human rights instruments. Some prescribe the international monitoring body and system. The reporting system is one such system. The implementation of the International Convention on Civil and Political Rights (hereinafter ICCPR) is monitored by the Human Rights Committee, which consists of 18 expert members. Each state party that has ratified ICCPR must regularly report on its implementation. Members of the Committee consider each report and prepare concluding observations. The Committee points out any problems in the form of recommendations to state parties, which must report on their implementation in their next periodic report. The Japanese Government recently submitted its 5th periodic report to the Committee. We are now discussing the report in a related workshop. While the Committee requests the submission of reports every five years, Japan's last report was submitted in 1998, almost ten years ago. The 5th report should therefore cover ICCPR implementation for the past decade. In its concluding observations on the 4th report, the Committee expressed its continued concern over problems that had remained unsolved since the 3rd report. It also restated recommendations that had been included in its response to the 3rd report. Most of these statements relate to discrimination issues and the treatment of detainees. Specifically, the Committee identified the unsolved problems of discrimination against illegitimate children, Korean residents, the Ainu, Buraku people, and the unequal treatment of divorced women in terms of the six-month period they must wait until they can legally remarry. It was pointed out that the obligation to permanently carry alien registration cards imposed on Korean residents who have acquired permanent residence visas constituted clear discrimination and a violation of ICCPR Article 26. The Committee identified a further violation by the State in terms of the treatment of foreign detainees in immigration detention centers and criminals on death row. The issue of substitution prisons was also identified as a violation. The Japanese government was obliged to take the above observations and recommendations into consideration in its 5th report. While there was some improvement in the period between submission of the 4th and 5th reports, including the reducing of sanctions from criminal to administrative against those who fail to carry alien registration cards, no significant progress was made on other problems identified by the Committee in its observations on the 4th report. These issues have simply remained unsolved.

General Problems in the 5th Periodic Report In addition, in its 5th report, the government does not address some of the problems that were identified in the Committee's concluding observations on the 4th report. In particular, the government failed to express any opinion regarding the Committee's statement that some problems constituted ICCPR violations, instead repeating its explanations of the relevant systems. Also, the government's responses to the 4th report's concluding observations were unconvincing. For example, the Committee recommended the establishment of an independent institution to investigate the treatment of detainees in immigration centers. The government responded by stating that it has placed comment boxes in immigration centers to seek the opinions of detainees. This is of course better than doing nothing, but the government's response is far from meeting the intention of the related recommendation. We also noticed the continued and internationally-unacceptable misinter- pretation of some provisions by the government, and contradictions in descriptions contained in the 5th report. This indicates inadequate coordination by the different ministerial offices involved in preparing the report. The report was also preoccupied with explaining existing government systems, but failed to provide statements regarding the actual conditions of the problems or quality that the government has provided to address them, thus failing to self-evaluate the effectiveness of the systems addressed. It is feared that the outcomes of the Committee's consideration of the 5th report will be the same as those of the 4th report.

Future Developments The Committee will soon consider the 5th report. As a result of changes to the Committee's consideration process, it now adopts a follow-up system for periodic reports made by state parties. Under this scheme, the Committee can ask a state party to prepare a one-year follow-up report on any problem the Committee considers as urgent. It will be worth noting whether or not the Committee asks the Japanese government for a follow-up report on its 5th report. It is also very important for NGOs to provide information to the Committee to enable more adequate consideration of the 5th report.

■Problems Concerning Zainichi Koreans

Yumi Kang (lawyer)

Insubstantial Statements regarding Zainichi Koreans With regard to its implementation of ICCPR Article 2, the government identified "the problem of foreigners" in its report. Under this subtitle, the government further classified the issue into "foreign residents" and "Zainichi Koreans." While such classification is commendable, it only raised the issues of "educational activities for the elimination of prejudice and discrimination," "obligation to carry alien registration cards," and "Korean schools" as problems relating to Zainichi Koreans, and failed to provide any substantial discussion.

Differentiation Problems It seems from the report that the government may consider special permanent residents to be equivalent to Zainichi Koreans. However, in reality this is not true. Under Japanese immigration law, "special permanent residents" are those in receipt of permanent resident visa under the 1965 normalization treaty between South Korea and Japan as they were holders of South Korean nationality, and those who were holders of the North Korean nationality and given a "specific permanent resident visa" on the occasion of Japan's ratification of the Convention Relating to the Status of Refugees in 1981. Special permanent residents do not necessarily include all Zainichi Koreans in Japan. For example, some Zainichi Koreans are not special permanent residents despite having lived in Japan for long periods. These people include Koreans who temporarily returned to Korea after its post-war declaration of independence, those who left Japan without reentry permission and then returned, and those who failed to return to Japan within the period specified in their reentry visa. Although these people are Zainichi Koreans, they continue to exist in Japan as "general permanent residents" (having ordinary permanent resident visas) or "settlers" (having no permanent visa). I am included in this group myself. The present conditions result from the Japanese government's failure to enact a law in view of war compensation exclusively concerning the legal status of those who have backgrounds in former Japanese colonies.

Insufficient "Educational Activities" In its report, with regard to a section on educational activities, the government stated it has engaged in educational programs to combat prejudice and discrimination against Zainichi Koreans. However, it failed to refer to the historical background, which cannot be overlooked when discussing such prejudice and discrimination. Although it touched upon preventive actions, including the dissemination of handouts, for the purpose of preventing the harassment of Korean children and students in relation to the kidnapping of Japanese nationals by North Korean agents, we have never seen such handouts. After considering Japan's 2nd report in 2001, the Committee on Economic, Social and Cultural Rights stated in Recommendation 39, "The Committee strongly recommends that the State party strengthen its non-discrimination legislation accordingly." Nevertheless, in the present report, the government stated it has encouraged the public "to seek consultation with human rights protection mechanisms under the Ministry of Justice when having been harassed." Considering the government was asked to reinforce its legislation, it is insufficient for the government to simply encourage people to visit human rights protection offices for consultation. In practice, Korean residents feel it is becoming increasingly difficult to live in society under Korean names. The situation faced by Korean residents was further aggravated after the discovery of the above-mentioned kidnapping issue. Security-related incidents have continued to occur, as demonstrated by the police search operations against facilities of the General Association of Korean Residents. The government must stop its own discriminatory practices before progress can be made.

Problems Left Unsolved We welcome the reduction from criminal to administrative sanctions with regard to violation of the legal requirement for foreign residents to permanently carry alien registration cards. In its report, the government stated, "considering the presence of a large number of aliens who have illegally entered or overstayed in our country, we continue to require the carrying of alien registration cards." The change in sanctions is in fact only applicable for "special permanent residents." All other foreign residents are therefore still subject to criminal sanctions if they violate the requirement. With regard to the problem concerning Korean schools, the government states, "the children of foreigners who are not Japanese nationals are eligible for free compulsory education (elementary and junior high school education) at public schools if they wish to attend." This suggests the government still considers that foreign children are not entitled to compulsory education (in other words, the right to education), and Japan is granting them a favor by allowing them into public schools. In its concluding observations, the Committee on Social, Economic and Cultural Rights strongly recommended that the government provide Korean schools with financial assistance and allow the use of foreign students' home-spoken languages at public schools. This sounds like an unrealistic dream. What is most urgently needed is to let them enjoy their right to education. There are many problems regarding Korean residents in Japan that remain unsolved. These include the reentry visa system, which makes it difficult for Korean residents to visit relatives in Korea; the right to employment by public corporations; the right of residence; access to the social security system; and participation in the democratic process to name just a few. Major challenges still remain.

■Problems from the Viewpoint of the Buraku Discrimination

Kenzo Tomonaga <Director,BLHRRI>

In the Context of the Concluding Observations on the 4th Periodic Report In its concluding observations on the 4th report in 1998, the Human Rights Committee stated regarding the Buraku 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." This demonstrated the Committee's continued concern regarding the state of the Buraku problem. Gaps between Buraku and non-Buraku communities are still evident in areas such as the lower rates of Buraku children progressing to high school and college, the higher rates of Buraku people who are unemployed or in unstable employment, and the fact that most Buraku people do not consult with legal bureaus or local human rights commissioners when experiencing discrimination. Does the 5th report build on the recommendations made by the Committee regarding the 4th report? With regard to the Buraku problem, in connection with ICCPR Article 26 regarding "equality before the law," the government states that, along with the resolution of Dowa problem, special legislative measures were terminated on March 31, 2002. The government provided partial data concerning the housing environment, municipal roads, and marriage gained through the 1993 national survey on Dowa districts.

Reality of Discrimination in Employment and Education It is true that the Buraku housing and living environment improved after the enactment of the law on special measures. However, a clear gap has remained to date in the areas of employment and education, which hold the key to a solution to the Buraku problem. Amongst the opinions published by the Council for Regional Improvement Measures based on the 1993 national survey, it was pointed out that "while the rate of Buraku student progression to high school has remained at over 90% for the past several years since it improved, there is still a gap of several points when compared to the national average. A higher proportion of people aged in their 20s and 30s completed tertiary education (junior college and college) than those in their 40s and above, but these rates are still much lower than the national average. Employment tends to be stable, especially among younger generations, but there are higher proportions of Buraku people in unstable forms of employment than the national average. Also, their employers tend to be relatively small in size in comparison with the national average. Regarding household income, Buraku households are generally concentrated in the lower income groups when compared to the national average. Buraku household budgets remain at a lower levels than the national average." The government has not conducted a national survey into Buraku conditions since the last survey in 1993. Considering the increasingly widening gaps at many levels in society, it is reasonable to assume that Buraku conditions in areas such as employment and education have sharply deteriorated. The 2001 proposals of the Osaka Prefecture Dowa Measures Council, based on a survey conducted by Osaka Prefecture in 2000, identified several challenges in the areas of education and employment among Buraku districts in Osaka. These are: 1) The proportion of Buraku children who progress to high school has increased to more than 90%, trailing the average for Osaka Prefecture by 3 to 4 points, but there is still a major gap in the proportions of those who progress to college. Also a large proportion of Buraku students are still failing to complete high school, which is a major problem. 2) The rate of computer ownership among Buraku households is much lower than the national average. The percentage of Buraku people who use the Internet remains at half the national average. In today's IT society, it is feared that an information gap is being generated between those who can use information devices and those who cannot, which will result in future social and economic gaps. For this, it is desirable to develop an "information barrier-free" society to ensure everybody's enjoyment of the benefits of information and telecommunications. 3) The unemployment rates for Buraku men and women exceed the averages for Osaka Prefecture. Unemployment among the younger generation is very high, while that of men in their 40s is almost double the average for Osaka Prefecture. Comprehensive job creation measures are needed to address this problem.

Marriage Discrimination As shown in the 5th report, it is true that intermarriage between Buraku and non-Buraku persons has been on the rise. However, this does not necessarily indicate the elimination of marriage discrimination. While the 5th report does not touch on these issues, proposals made by the Osaka Prefecture Dowa Measures Council clearly state "intermarriage has steadily increased between those in Dowa areas and those outside Dowa areas, with higher percentages featuring among the younger generations. However, more than 20% of intermarriage couples report having experienced marriage discrimination. Also 20% of those with Dowa backgrounds (regardless of where they currently reside) have experienced the termination of marriage engagements with non-Buraku persons, and nearly half feel that the termination was related to their Buraku background. About 20% of Osaka Prefecture residents said they would be concerned about whether or not the other marital party was from Buraku. The Dowa problem therefore still features in marriage views among people in Osaka. Continued efforts are required to eradicate discriminatory attitudes towards Buraku people and to improve consultation services for engaged couples to assist them in overcoming obstacles brought by Buraku discrimination."

Eradication of Personal Background Investigations Behind discrimination at the time of employment and marriage lies the issue of personal background investigations by private investigative agencies. The government states in its 5th report that it has taken appropriate actions in such cases by giving guidance or educating those involved. Unfortunately, the report fails to mention serious problems such as the frequent illegal acquisition of family registers, and the recent discovery of new Buraku List versions, particularly those in digital format. Faced with these issues, it is insufficient to simply provide guidance or education to those involved. The creation of relevant legal regulations and changes to relevant laws are urgently required, but the report again fails to address these issues. People use Buraku Lists and investigate family registers during employment and marriage because Buraku people are not identifiable by their appearance. A person's Buraku origins can only be identified by tracing their past areas of residence to identify whether they have lived in a Buraku area, tracing their parents' or grandparents' areas of residence (since people are identified as having Buraku origin by descent even if they have not lived in a Buraku area themselves), or identifying their permanent domicile. Due to these unique aspects of Buraku discrimination, the illegal acquisition of Buraku Lists and family registers has not yet ceased. In April 2007, some progress was made with the revision of the Family Registration Law. Nevertheless, illegal acquisitions by administrative scriveners continue to occur, and new Buraku List versions continue to be discovered. It is disturbing that these serious issues are not mentioned in the 5th report.

Propaganda and Incitement for Discrimination on the Internet In the 5th report, in relation to ICCPR Article 20 on the prohibition of propaganda for war, the government provides much information about propaganda and incitement for discrimination on the Internet. However, if a person were arrested in Japan for dissemination of malicious discriminatory messages on the Internet, they would be charged with intimidation or slander. This indicates that Article 20, which prescribes "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law," has yet to be implemented. Furthermore, discriminatory and inflammatory messages such as "Kill all Buraku people!" on the Internet are not judicially prohibited on the grounds that they do not specify or pinpoint any specific individual or group. This is unreasonable. Legal systems must be developed to ensure such acts are appropriately punished.

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