History and Theoretical Approach of Japan in International Law
Japanese Human Contribution to the International Community
In November 2020, Judge Yuji Iwasawa of the International Court of Justice was reelected by 169 votes in the UN General Assembly and 15 votes in the Security Council to serve a nine-year term beginning February 2021. Judge Iwasawa was elected in June 2018, when he was a professor at the University of Tokyo, to fill the vacancy caused by the resignation of Japanese-born Judge Hisashi Owada. Following the re-election, Japan’s Ministry of Foreign Affairs issued the below statement:
As the ICJ is playing an increasingly prominent role in achieving peaceful settlement of international disputes, electing the best qualified judges to the Court is essential for maintaining and reinforcing the confidence of the international community in the ICJ. The re-election of Judge IWASAWA is the testament to the international community’s high appreciation of his exceptional qualification and the achievements that he has delivered as a judge of the ICJ, as well as the international community’s support for Japan’s stance of placing great importance on the ICJ.
Japan intends to continue to support the activities of the ICJ and make proactive contributions to the promotion of the rule of law in the international community.
International Economic Law
International and Regional Trade Treaties and Bodies – Signing of the RCEP
On 15 November 2020, Japan signed the Regional Comprehensive Economic Partnership Agreement (RCEP), an economic partnership agreement among the 10 ASEAN member countries (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam) and its FTA parties (Australia, China, Japan, New Zealand, and South Korea). The agreement entered into force on 1 January 2022 for Japan, China, Australia, New Zealand, Thailand, Cambodia, Singapore, Brunei, Vietnam, and Laos. This was followed by Korea on 1 February 2022, and Malaysia on 18 March 2022.
The RCEP covers about 30% of the world’s GDP, trade, and population, making it one of the world’s largest economic partnership agreements. For Japan, the RCEP is very significant in that it is the first economic partnership agreement between Japan and China, and between Japan and Korea. In addition, Japan has very high expectations for the RCEP framework where the Trans-Pacific Partnership Agreement (TPP) framework in the Asia-Pacific region has stalled due to the withdrawal of the United States. India has been involved in the negotiations from the beginning, but ultimately did not join the RCEP. At the 4th RCEP Leaders’ Meeting, Prime Minister Suga stated, “It is regrettable that India did not sign the RCEP Agreement today, but India is an essential player in the regional economic framework, and Japan is determined to continue to play a leading role in India’s future return to this agreement (Prime Minister Suga’s Remarks at the 4th RCEP Summit on 15 November 2020).” He lobbied for the further promotion of the RCEP.
Japan-U.S. Trade Agreement and Japan-U.S. Digital Trade Agreement
On 1 January 2020, the Trade Agreement between Japan and the United States of America (Japan-U.S. Trade Agreement) and the Trade Agreement between Japan and the United States of America concerning Digital Trade (Japan-U.S. Digital Trade Agreement) entered into force.
The Japan-U.S. Trade Agreement provides for the mutual elimination or reduction of tariffs on trade in goods between the United States and Japan. For Japan, TPP11 entered into force at the end of 2019 and the EU-Japan EPA (Economic Partnership Agreement) in March 2020. On the other hand, since its withdrawal from the TPP, the United States has been extremely reluctant to participate in the multilateral free trade regime. Against this background, both agreements were concluded and entered into force very smoothly.
Under the agreement, Japan eliminated or reduced tariffs on pork, beef, and other agricultural products, as well as processed foods. Regarding tariffs on Japanese agricultural products: (1) Japan obtained an exemption from the elimination of tariffs on rice, the staple food of the Japanese people, as requested by Japan, (2) the items for which tariffs will be reduced or eliminated will be the same as those in the TPP, (3) tariffs on beef will be eliminated in the same manner as those in the TPP, (4) tariff elimination or reduction was achieved for individual items such as soy sauce, potatoes, cut flowers, and persimmons. However, Japan’s export quota will be secured within the total of 65,005 tons of quotas granted to multiple countries, instead of the previous quota allocated to Japan alone.
On the other hand, no agreement was reached on the elimination or reduction of tariffs on automobiles and automobile parts, and it was decided that further negotiations would be conducted. As for other industrial goods, it was decided to eliminate tariffs on air conditioner parts and other products.
The Japan-U.S. Digital Trade Agreement aims to promote smooth, reliable, and free digital trade between Japan and the U.S. The agreement does not impose tariffs on the transmission of digital products (e.g., software, music, video, e-books) between the parties (Article 7) and does not provide less favorable treatment to digital products of the other party than it provides to other digital products of the same kind (Article 8). However, the agreement prohibits and restricts the cross-border transfer of data as a condition for conducting business in the home country (Article 11) as well as prohibits demands for the transfer of source code and algorithms (Article 17). As for interactive computer services such as SNS, the agreement does not hold the provider liable for damages related to information distribution, etc. (Article 18). The scope covered by the Japan-U.S. Digital Trade Agreement is more comprehensive than that of the TPP’s e-commerce.
The Japan-UK Comprehensive Economic Partnership Agreement (the Japan-UK EPA)
The Japan-UK Comprehensive Economic Partnership Agreement (the Japan-UK EPA) was signed on 23 October 2020, approved by the Diet on 4 December 2020, and entered into force on 1 January 2021.
The Japan-UK EPA establishes new rules for trade and investment as the UK will leave the EU and will no longer be covered by the Japan-EU EPA. The agreement consists of 24 chapters, annexes, and etc. Compared to the Japan-EU EPA, the same content was maintained in principle for imports from the UK to Japan, but for exports from Japan to the UK, the immediate elimination of tariffs was secured for auto parts and other items. In e-commerce, the Japan-UK EPA stipulated the prohibition of restrictions on the cross-border transfer of information, the prohibition of installation requirements for computer-related equipment, and the addition of algorithms to the scope of the prohibition of source code disclosure requirements. In addition, economic empowerment of women was newly stipulated, which was not included in the Japan-EU EPA. Thus, the Japan-UK EPA is designed to further develop trade and investment while maintaining the economic relationship between the UK and Japan that existed under the Japan-EU EPA.
After leaving the EU, the UK has been trying to strengthen its economic relationship with the Asia-Pacific region, starting with Japan and then moving on to conclude FTAs with Canada, Mexico, Vietnam, Australia, New Zealand, India, and others, and is aiming to join TPP11. Regarding this trend in the UK, Japanese Foreign Minister Mogi has stated, “Japan welcomes the UK’s interest in joining the TPP” (Press Conference by Foreign Minister MOTEGI Toshimitsu on 23 October 2020).
International Environmental Law
Ocean Discharge of Treated Water from TEPCO’s Fukushima Daiichi NPP: Submission of Report (Report of the Subcommittee on the Handling of Treated Water from the Multi-Nuclide Removal Facilities, etc.) and the Response of IAEA
On 10 February 2020, a report (Report of the Subcommittee on the Handling of Treated Water from the Multi-Nuclear Decommissioning Facilities) was submitted to promote the ocean discharge of treated water from the Fukushima Daiichi Nuclear Power Plant on the grounds that it is most practical to dilute the treated water and discharge it into the ocean. Based on this report, the government is considering ocean discharge in the future.
At TEPCO (Tokyo Electronic Power Company)’s Fukushima Daiichi Nuclear Power Station, water is constantly poured into the reactor buildings of Units 1–3 to cool the melted-down nuclear fuel, but this water is contaminated with 63 types of radioactive materials, including cesium, strontium, and tritium. The volume of this contaminated water is expanding due to the inflow of groundwater. The contaminated water is passed through a “cesium removal system” to reduce the concentration of cesium and strontium, which account for most of the radiation, and then further concentrated before being passed through a “multinuclear removal system (Advanced Liquid Processing System (ALPS)).” The concentration of all nuclides except tritium, which is difficult to remove, will be removed, and the concentration will be reduced to below the legal limit (notified concentration) that allows the release of such nuclides into the environment. The nuclear material is then stored in tanks on the site, but due to the limitations of these tanks, ocean discharge is being considered.
The IAEA has expressed its support for ocean discharge. On 26 February 2020, IAEA Director General Grossi visited TEPCO’s Fukushima Daiichi Nuclear Power Plant and stated that (1) the oceanic release (and steam release) that Japan is considering is technically feasible and in line with international practice, (2) the IAEA is prepared to provide monitoring and other support for its implementation, and (3) the IAEA is prepared to support Japan in the implementation of such a plan. On 2 April 2020, the IAEA issued a review titled “IAEA Follow-up Review of Progress Made on Management of ALPS Treated Water and the Report of the Subcommittee on Handling of ALPS treated water at TEPCO’s Fukushima Daiichi Nuclear Power Station” to the same effect, acknowledging that no tritium separation technology is currently available, and stating that a decision on the disposal of treated water should be made urgently with the involvement of all stakeholders, while taking safety into consideration.
However, ocean discharge is strongly opposed, especially by neighboring countries. For example, on 22 September 2020, South Korea told the International Atomic Energy Agency (IAEA) General Assembly that the discharge of treated water into the ocean would “raise concerns about the impact on environmental safety,” and that “the Japanese government should not be allowed to decide on the disposal method [of treated water] before it decides how to dispose of it. The Japanese government has an important obligation to communicate transparently with the international community, including South Korea, before deciding how to dispose of the treated water,” he said, calling for the IAEA’s active involvement (Yomiuri Shinbum, 23 September 2020 “South Korea concerned about Discharging Treated Water from Fukushima Daiichi Nuclear Power Plant into the Ocean … at IAEA General Meeting”).
Law of the Sea
Japan Joins the Bunker Convention and the Nairobi Convention
On 1 July 2020, Japan deposited with the International Maritime Organization (IMO) Headquarters in London its written accession to the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Convention) and the Nairobi International Convention on the Removal of Wrecks (Nairobi Convention). Both treaties took effect on October 1, three months after the date of deposit of the accession.
Japan had required ships to conclude insurance policies under the Act on Insurance Coverage for Oil Pollution Damage (Act No. 95 of 1975) to cover pollution damage caused by fuel oil spilled from ships and the costs incurred in removing wrecks of stranded ships and other vessels. However, in recent years, there have been cases where insurance payments have not been made. After concluding the Bunker Convention and the Nairobi Convention, the Act for Partial Revision of the Act on Liability for Oil Pollution Damage Caused by Ships (Act No. 18 of 2019) was formulated as a legal reform to implement these treaties and came into effect on 1 October 2020.
The Bunker Convention calls for ensuring appropriate and effective payment of compensation for pollution damage caused by spills or discharges of bunker oil from ships, and the Nairobi Convention calls for ensuring prompt and effective removal of wrecks and payment of their costs. Japan, one of the world’s leading shipping nations, has joined these treaties, which will further protect victims by allowing them to file claims directly with insurance companies, and will also contribute to the safety of navigation and the preservation of the marine environment.
Maritime Claims – China’s Survey Activities in the EEZ Area around Okinotori-shima Island
In July 2020, the Taiyo, Chinese research vessel, conducted the several unauthorized surveys in the EEZ around Okinotori-shima Island by inserting wires into the sea from the ships(Japan times, 18 July 2020). Japan protested this, but Hua Chunyin, Press Secretary of the Chinese Ministry of Foreign Affairs, stated that, according to the UN Convention on the Law of the Sea, Okinotorishima reef is a “rock” and not an “island” and therefore “should not have an exclusive economic zone or continental shelf.” She further stated that the survey by Chinese vessels “is the fulfillment of the right of survey in the high seas and does not require prior permission from Japan” (TV Asahi news, 18 July 2020).
In 2012, Japan applied to the UN Commission on the Limits of the Continental Shelf for the extension of the continental shelf based on Okinotori-shima. However, the decision on this application has been postponed due to opposition from China and other countries that claim Okinotori-shima as a “rock.”
Maritime Disputes and Overlapping Claims – Stranding Incident off the Coast of Mauritius
The Wakashio, chartered by Japan’s Mitsui O.S.K. Lines and owned by Nagashiki Kisen ran aground off the coast of Mauritius in the Indian Ocean, spilling a large amount of fuel oil (about 1,000 tons) from a cracked fuel tank. The area is home to mangrove forests and coral, and there are concerns about the environmental impact. The vessel was registered in Panama and had crew members of three nationalities on board: Filipino, Indian, and Sri Lankan.
Following the accident, the Mauritian government declared a state of emergency. The police authorities in Mauritius arrested the captain and two co-captains on suspicion of failing to navigate safely. The Mauritian government also announced that it intends to file a claim for compensation with the ship’s owner, Nagashiki Kisen, and the insurance association contracted by the company.
The maximum amount of compensation is set by the Convention on Limitation of Liability for Marine Claims. Mauritius is a signatory to the 1976 Convention on the Limitation of Liability for Marine Claims and Japan is a signatory to the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims. Therefore, there is a question as to which of the two conventions is applicable to the upper limit, but normally the treaty ratified by the country is followed. In this case, it is estimated to be approximately 1.9 billion yen.
Japan is not a flag state in this case and therefore has no obligations under UNCLOS and IMO-related conventions. Moreover, Japan is not responsible for compensation for marine pollution damage, which is handled under the civil liability system for compensation for marine pollution damage. However, Article 10 of the International Convention on Civil Liability for Bunker Oil Pollution Damage imposes an obligation to recognize foreign judgments. Although the Bunker Convention was not in force in Japan at the time of the accident (Japan joined the Bunker Convention on 1 July 2020, the accident occurred on 25 July 2020 and the Bunker Convention entered into force on 1 October 2020), according to Article 18 of the Vienna Convention on the Law of Treaties (obligation not to defeat the object and purpose of a treaty prior to its entry into force), Japan has the obligation to recognize the domestic court judgment of Mauritius, if recognition of such judgment is requested.
Since Japan has no legal responsibility, the government has indicated that, although it does not intend to provide compensation, it does intend to provide assistance to Mauritius in the form of aid to developing countries to restore the original state of environmental damage and tourism. The Mitsui O.S.K. Line, the charterer of the vessel, also has no legal responsibility, but it cooperated in the investigation of the accident and initiated environmental restoration and social contribution activities with the cooperation of local NGOs.
Human Rights
Specific Human Rights Incidents or Cases – Report on Two Long-Term Detainees in Immigration Detention Facilities: Opinion of the UN Human Rights Council Working Group on Arbitrary Detention and Japan’s Response
The UN Human Rights Council was notified of two foreigners (Deniz Yengin and Heydar Safari) who were detained long-term in immigration detention facilities in Japan. Deniz Yengin came to Japan in 2007, fleeing threats and violence in Turkey because of his Kurdish ethnicity, his belief in alehism, his Muslim identity, and his political opinions. His wife is a Japanese citizen, but he has not been able to obtain residency rights in Japan; he has been ordered deportation in 2008 and has since been detained at the East Japan Immigration Center, where he was repeatedly and provisionally released and reincarcerated. Some of the periods of incarceration lasted up to three years and two months. As a result of the incarceration, he lost weight during hunger strikes, attempted suicide, and developed mental disorders due to stress.
Heydar Safari, an Iranian national who has been in Japan for 30 years since 1991, had his legal status revoked in 1992, filed numerous refugee applications, was issued a deportation order in 2010, and has been repeatedly detained and provisionally released. One of the longest periods of his detention was three years. During his incarceration, he protested with hunger strikes and lost a lot of weight. At one point, he even refused to drink water. He was taking antidepressants and sleeping pills for his mental disorder.
The UN Human Rights Council Working Group on Arbitrary Detention found the detention of these two persons to be contrary to Articles 2, 3, 8, 9, and 14 of the Universal Declaration of Human Rights and Articles 2, 9, and 26 of the International Covenant on Civil and Political Rights.
The Working Group considers that deprivation of liberty occurs in the following five categories (A/HRC/WGAD/2020/58).
Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her);
Category II: When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant;
Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character;
Category IV: When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy;
Category V: When the deprivation of liberty constitutes a violation of international law on grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.
In the case of Deniz Yengin and Heydar Safari of Japan, the deprivation of liberty was found to be arbitrary, falling under the above categories I, II, IV, and V. On 28 September 2020, the Working Group sent an Opinion to the Government of Japan stating that the measures taken in Japan against two foreign nationals, to whom deportation orders had been issued, amounts to arbitrary detention, and the Opinion was subsequently released. The content of the Opinion is as follows:
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1) The detention falls under Category I arbitrary detention. The detentions of these two individuals were arbitrary “lacking a legal basis.” The term “lacking legal basis” should not be equated with “contrary to law.” It is understood that even if a detention is authorized by law, if it lacks reasonableness, necessity, and proportionality, it is a detention lacking legal basis.
The two individuals were repeatedly detained and were not given a reason for their detention or the length of time they were detained. Their bail for provisional release was also high. The fact that they had lived in Japan for 13 and 30 years, respectively, was not taken into account. They were also not allowed to bring a court case to challenge the legality of their detention.
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2) The detention falls under Category II arbitrary detention. The deprivation of liberty is based on the exercise of human rights stipulated in the Universal Declaration of Human Rights, and etc. The two men sought asylum, which is a universal human right enshrined in Article 14 of the Universal Declaration of Human Rights. Nevertheless, they were repeatedly detained without being given a reason for their detention nor granted asylum. It is clear that this was not for legitimate purposes such as entry records or identification.
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3) The detention falls under Category IV arbitrary detention. The two individuals have been detained indefinitely.
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4) The detention falls under Category V arbitrary detention. There is a pattern of adopting a discriminatory attitude towards individuals seeking asylum in Japan. Accordingly, the detention of the two individuals, due to their immigration status, violates Article 26 of the International Covenant on Civil and Political Rights and constitutes arbitrary detention.
On 27 March 2021, the Government of Japan filed an objection to the Working Group on Arbitrary Detention, arguing that the detention of the two individuals was based on a proper assessment of their compliance with conditions and individual circumstances during their provisional release and that they were provided with an opportunity for judicial review and redress.
Constitutionality of Selective Surname Segregation: References to the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Discrimination against Women
Hiroshima High Court, 16 September 2020
On 2 March 2008, the appellant and A filed a marriage notification, claiming that the appellant would take the appellant’s name and A would take the A’s name, respectively. However, the marriage certificate was not accepted on the grounds that it violated Article 750 of the Civil Code (Act No. 89 of 1896) and Article 74(1) of the Family Registration Law (Act No. 224 of 1947) (hereinafter referred to as “the respective provisions”). The facts of this case are as follows: The appellant and A got married in September 1983, and a few months later, they decided to use A as their married name and submitted the marriage certificate. However, the appellant felt that she could no longer use her maiden name as her common name and filed for divorce from A on 13 January 1990. However, this divorce was a formality so that appellant could use her maiden name, and appellant continued to live with A as husband and wife thereafter.
In the present case, the appellant claims that the respective provisions is against Article 14(1), Article 24(1) and (2) of the Constitution, and Article 2(1) and (3)(b), Article 3, Article 17(1), and Article 23 of the International Covenant on Civil and Political Rights and Articles 2, 16(1)(b) and (g) of the International Convention on the Elimination of All Forms of Discrimination against Women. Therefore, she claims that the failure to amend or abolish the respective provisions and to create a new option of separate married couples’ names in addition to the same-sex married couples’ name system is considered illegal in terms of Article 1, paragraph 1 of the State Redress Act (Act No. 125 of 1947) under which she claims damages to the government to pay 500,000 yen as compensation. The claim was also dismissed at the first instance (Hiroshima District Court, 19 November 2019).
As for the Court’s rationale, both the first instance and the appellate court refers to (1) the applicability of the International Covenant on Civil and Political Rights (ICCPR) and (2) the applicability of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Regarding the applicability of the ICCPR, the first instance court acknowledged the applicability of the Covenant and held that “it cannot be said to be contrary to the respective provisions.” Regarding the applicability of CEDAW, the court denied the applicability of the International Convention on the Elimination of All Forms of Discrimination against Women as it has no automatic enforcement power. Therefore, the claim was dismissed on the grounds that the above legislative omission was not subject to the evaluation of illegality in terms of the application of Article 1(1) of the State Redress Act.
The Court of Appeal in this case held as follows:
(1) Articles 17(1), 23(1), 23(2), 23(3), 23(3), and 23(4), Article 2(1), Article 2(3), and Article 2(3)(b) of the International Covenant on Civil and Political Rights
None of these provisions explicitly refer to the retention of the use of the premarital surname of each spouse, and it cannot be said that these provisions specifically stipulate that each spouse is guaranteed the right to retain the use of his or her premarital surname. Therefore, the fact that changing the name of one of the spouses is a formal requirement for marriage does not immediately constitute a violation of the above provisions of the International Covenant on Civil and Political Rights. In addition, the General Comments of the Human Rights Committee on Articles 3 and 23(4) of the International Covenant on Civil and Political Rights, which refer to the retention of the premarital surname of each spouse, may serve as a guideline or supplementary means of interpretation of the Covenant. However, they are not considered to have the effect of legally binding the interpretation of the Covenant by the domestic organs of the State Parties, and therefore they do not have the effect of legally binding the interpretation of the Covenant by the courts of Japan.
(2) Articles 17(2)(a), and 16(1)(b)(g) of the International Convention on the Elimination of All Forms of Discrimination against Women
A treaty is, in principle, an agreement between States in written form that creates rights and obligations under international law among the contracting States and does not directly regulate the rights and obligations between each contracting State and its individual nationals.
Even if a treaty contains provisions to guarantee individual rights, this does not naturally enable individual nationals to claim the rights provided by the treaty against the Contracting Party to which they belong.
In some cases, the exercise of rights becomes possible only when the Contracting Parties are obliged to mutually take measures to guarantee the rights of individual nationals belonging to their respective countries and when measures are taken under domestic laws to give concrete form to the content of such measures.
In order for the provisions of a treaty to be directly applied in Japan in its original form as guaranteeing the rights of individual citizens without taking any measures under domestic laws to embody the contents of the treaty and to have judicial normative force, the following two requirements must be satisfied.
1) The intention of the Contracting Parties to the treaty to directly determine the rights and obligations of individual citizens through its promulgation must be confirmed.
2) The rights and obligations of individual citizens are clearly and completely stipulated in the provisions of the treaty, and the content of the treaty does not need to be supplemented and embodied in other laws and regulations.
With regard to Articles 17(2)(a), and 16(1)(b)(g) of the International Convention on the Elimination of All Forms of Discrimination against Women, none of the provisions take the form of a commitment by the State Party to take or commit to take appropriate measures to ensure each right. The clauses do not directly confer rights on individual citizens, but rather declare that the States Parties have a political responsibility to promote positive measures for the realization of those rights. It can be said that the State Parties are expected to secure such rights through the development of domestic laws. In this light, even if some of the provisions in this case do not conform to the provisions of the International Convention on the Elimination of All Forms of Discrimination against Women, the provisions in this case cannot be said to be illegal immediately.
After this decision, a decision of the Third Petty Bench of the Supreme Court on 22 March 2022 dismissed the case as alleging a mere violation of the law or as lacking the premise for such a violation, or lacked the premise of a mere violation of the law and dismissed the case. However, two judges expressed the view that it violated Article 24 of the Constitution.
As for precedents concerning elective conjugal surnames, so far, including this case, they have repeatedly ruled that it is constitutional (see the 2015 the Supreme Court Grand Chamber decision of 16 December 2015, and the 2021 Supreme Court Decision of 23 June 2021).
Fuji Housing Hate Harassment Case – Denial of Direct Application of the International Convention on the Elimination of All Forms of Racial Discrimination to Conflicts between Private Individuals
A third-generation Korean woman resident in Japan who has worked for Fuji Housing (a real estate company with about 1,000 employees) in Osaka since 2002, sought damages from the company and its founder and chairman for distributing documents containing ethnically discriminatory expressions, claiming that the company had acted unlawfully. On 2 July 2020, the Sakai Branch of the Osaka District Court, the court of first instance, awarded damages of 1.1 million yen.
Fuji Housing had continuously and massively distributed newspapers, magazines, books, pamphlets, Internet distribution, videos, daily business reports, business reports, management philosophy impressions, and other documents to all employees, some of which included the phrase “Zainichi (author’s note: Japanese, meaning Korean residents in Japan) should die.” In addition, the chairman engaged in political activities, such as participating in textbook exhibitions and encouraging the submission of questionnaires, in order to have junior high school textbooks adopted that were in line with his own historical perceptions, ideology, and beliefs. The plaintiff, through his attorney, requested that these activities be stopped, but was denied, so she filed a petition for human rights relief with the Osaka Bar Association. In addition, the plaintiff met with her supervisor because she continued to be emotionally upset and was having a hard time, and she received a recommendation to resign, which led to the filing of the lawsuit. Subsequently, Fuji Housing had other employees write criticisms of the filing of the lawsuit and other matters, and continued to distribute the documents.
The plaintiff argued that the distribution of the document was illegal as it infringed on the plaintiff’s rights or legal interests because it was discriminatory speech or behavior that contained racial or ethnic discrimination or encouraged racial or ethnic discrimination as defined by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behaviour against Persons Originating from Outside Japan (Hate Speech Elimination Act) (Act No. 68 of 2016) . However, both the first instance and the appellate court denied direct application of the International Convention on the Elimination of All Forms of Racial Discrimination to conflicts between private individuals. The first instance court held that the distribution of the documents violated the plaintiff’s personal interests that should have been protected under the labor contract, and the appellate court held that the distribution of the documents fostered discriminatory ideas in the workplace and violated the defendant’s duty of care for the work environment, awarding damages (1.1 million yen in the first instance, 1.32 million yen in the appellate court).
Regarding the application of the International Convention on the Elimination of All Forms of Racial Discrimination, the first instance court stated:
Even though the International Convention on the Elimination of All Forms of Racial Discrimination has domestic legal effect as a form of national law, in light of its provisions, it provides the international responsibility of States and, like Articles 13 and 14(1) of the Constitution, regulates the relationship between public authorities and individuals. Accordingly, it does not directly regulate the relationship between private individuals such as the plaintiff and the defendants in this case, nor does it apply or analogically apply to the relationship between private individuals. Therefore, it is understood that the purpose should be realized in harmony with other constitutional principles and the principle of private autonomy through the interpretation and application of individual provisions such as Article 709 of the Civil Code.
Regarding the application of the ICERD, the Appellate court stated:
As a presupposed legal framework, Japan is a party to the International Convention on the Elimination of All Forms of Racial Discrimination, and “racial discrimination” includes any distinction, exclusion, restriction or preference based on ethnic origin (Article 1, paragraph 1).
Based on Article 4 of the Convention, Japan “commits itself to take prompt and active measures aimed at eradicating all incitement to or acts of racial discrimination,” and Articles 4(a) and (b) of the Convention confirm that States Parties are obligated to “make any dissemination of ideas based on racial superiority or hatred, and organized propaganda activities that promote and incite racial discrimination a crime punishable by law.”
However, it cannot be said that the provisions of the ICERD, in light of their wording, oblige the States Parties to the Convention to directly apply the provisions of the Convention as judicial norms to relationship between private individuals in Japan. However, Japan, under its international legal obligations toward other State Parties, is obligated to implement the purpose of each provision domestically through legislation or any other method it deems appropriate. In joining the ICERD, Japan has not enacted any special implementing legislation, because it is understood that the provisions of existing domestic laws within the Constitution (including various provisions on unlawful acts) can guarantee domestic implementation of the Convention. Therefore, in interpreting and applying domestic private laws to disputes concerning racial discrimination between private parties, it is necessary to ensure that domestic implementation of the Convention is properly carried out based on the interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination.
The International Convention on the Elimination of All Forms of Racial Discrimination imposes on States Parties the obligation to prohibit and end racial discrimination by any person, group or organization and to suppress any movement that would reinforce racial divisions (Article 2(1)(d) and (e)). In considering the duty of care for the work environment owed by the defendants to the plaintiff and the nature of her legally protected interests, … the perspective of domestic implementation of the Convention must also be considered. It is not enough to prohibit discriminatory words and actions based on ethnic origin in the workplace; defendants have an obligation to ensure that discriminatory ideas that lead to such words and actions are not fostered in the workplace through their own actions or the actions of others; and that racial divisions are not strengthened. Ethnic origin is a matter that concerns an individual’s personality and the plaintiff has a personal interest in working in a workplace where discriminatory thoughts related to her ethnic origin are not being fostered. This interpretation is In line with the purpose of the International Convention on the Elimination of All Forms of Racial Discrimination. In the event that the defendants themselves engage in acts that foster discriminatory ideas in the workplace, or leave discriminatory ideas unchecked despite the fact that they are being fostered, they are in breach of their duty to consider the workplace environment and are liable for tortious acts or default on their obligations as having infringed the plaintiffs’ personal interests.
Judgment on the Constitutionality of the Osaka City Hate Speech Ordinance: Reference to the Recommendations of the Committee on the Elimination of Racial Discrimination
Osaka District Court, 17 January 2020
This is a case in which the constitutionality of the Osaka City Hate Speech Ordinance (Osaka City Ordinance on Dealing with Hate Speech, enacted on 15 January 2016) was challenged in a residents’ lawsuit from the perspective of restrictions on freedom of expression.
The ordinance defines hate speech (Article 2) and requires the mayor to publicize, in principle, “the fact that the activity constitutes hate speech, a summary of the content of the expression, the measures taken to prevent its spread, and the name or names of the person who engaged in the activity, as well as the name and other details” for activities that constitute hate speech (Article 5, Paragraph 1), and if the Board finds that there is a possibility that the activity constitutes hate speech, the Board’s opinion must, in principle, be obtained in advance (Article 6, Paragraph 1).
A person residing in the Kansai region (hereinafter referred to as “the person concerned”) shot a video of a demonstration activity that took place in Osaka City on 24 February 2013, and posted it on a video-sharing website. In the said video, the person concerned recorded words and deeds of contempt and slander with the aim of hating and despising Zainichi Koreans and eliminating them from society. When the examination procedure was initiated against the person concerned based on the Hate Speech Ordinance, he/she deleted the video, but the mayor of Osaka City published the handle name of the person concerned as equivalent to his or her name. In response, eight residents of Osaka City filed a residents’ lawsuit, claiming that this would “delegitimize freedom of expression.”
The court ruled that the restrictions based on the said ordinance did not violate Article 21, Paragraph 1 of the Constitution. The reason given was that “the purpose of the restriction is reasonable and justifiable.” As one of the grounds for the decision, the court referred to the recommendation of the Committee on the Elimination of Racial Discrimination as follows:
In September 2014, the Government of Japan received a recommendation from the Committee on the Elimination of Racial Discrimination in accordance with Articles 1 and 2 of the International Convention on the Elimination of All Forms of Racial Discrimination, requesting to endure that 1) victims of racial discrimination may obtain appropriate legal redress, 2) expressions of hatred and racism, racist violence and incitement to hatred at demonstrations and assemblies are addressed, and 3) appropriate measures to address hate speech in the media including the Internet are adopted.
In addition, even after the Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behaviour against Persons Originating from Outside Japan (Hate Speech Elimination Act) (Act No. 68 of 2016) came into effect, in August 2018, the Committee continued to recommend that Japan have to deal with the elimination of hate speech and violence in Japan through assemblies that engage in violent hate speech against ethnic minorities such as Koreans and Koreans living in Japan (CERD/C/JPN/CO/10–11).
After this judgement, this ordinance was also declared constitutional by the Court of Appeal (Osaka High Court, 26 November 2021) and the Supreme Court (Supreme Court, 15 February 2022).
Implementation of Human Rights Treaties – Adoption of Action Plan on Business and Human Rights (2020–2025)
In order to implement the Guiding Principles on Business and Human Rights adopted by the UN Human Rights Council in 2011 (A/HRC/17/31), each country is required to formulate a national action plan, and which many countries have already responded. The Action Plan on Business and Human Rights (2020–2025) was finally formulated in Japan on 16 October 2020 as a national action plan.
Japan’s national action plan follows the three pillars of the UN Guiding Principles: (1) the obligation of states to protect human rights, (2) the responsibility of corporations to respect human rights, and (3) access to remedies. For example, in category (1) providing the obligation of states to protect human rights, it states that in the area of development cooperation, JICA (Japan International Cooperation Agency)’s Guidelines for Environmental and Social Considerations will be implemented effectively to ensure that they are consistent with internationally established human rights standards. In category (3), the plan is to enhance human rights due diligence, including the use of IT in civil court procedures, promotion of the use of alternative dispute resolution procedures, and promotion of the operation of an objection system for non-compliance with the Guidelines in the field of development cooperation. Besides, as matters to be addressed in a cross-sectional manner, the report states that protection of the rights of workers, including foreign workers, children, women, and persons with disabilities, and protection of new human rights in connection with the development of the Internet and AI, will be addressed.
The UN Guiding Principles on Business and Human Rights not only stipulate the obligation of states to respect human rights, but also stipulate the responsibility of corporations to respect human rights. In Japan, however, responsibility of corporations to respect human rights and recognition of such responsibility has not been sufficient. Even in this country report, category (2), which indicates efforts to address the responsibility of corporations, it only aims to raise awareness and educate corporations about human rights due diligence. Nevertheless, the fact that Japan was finally able to submit a national report after the UN Guiding Principles were formulated is a significant step forward for Japan.