In the enigmatic interplay between tradition and the imperative for global inclusivity, Japan stands at a crossroads as it grapples with the complexities of refugee recognition. Japan is historically known as a homogenous country full of long-standing customs. However, in the face of the humanitarian and refugee crisis and evolving international norms, Japan’s traditional identity collides with the urgent call for humanitarian response.
Understanding the Refugee Convention in the Japanese context
The Refugee Convention is voluntarily embraced by countries through either ratification or accession. However, once a country has undertaken this commitment, the process of incorporating the treaty into domestic law varies and is contingent on the nation’s legal system. In monist legal systems, such as Japan’s, international treaties automatically become integral to domestic law upon ratification or accession. They hold equivalent legal status to domestic laws, enabling judges to directly apply them in domestic courts without the need for specific local legislation.
Japan, operating within a monist system, integrated the Refugee Convention into its domestic law in 1981 following ratification. The decision to ratify was a response to the significant outflow of Indo-Chinese refugees in the first half of 1979. Japan acceded to the Convention Relating to the Status of Refugees on October 3, 1981, and later to the Protocol Relating to the Status of Refugees on January 1, 1982.
Despite being part of the Convention, Japan maintains strict limitations on the number of refugees accepted annually. Some scholars argue that Japan’s approach is influenced by the fact that individuals often arrive seeking better opportunities rather than fleeing persecution, rendering the Refugee Convention seemingly inapplicable in these cases. Specifically, most of the asylum-seekers tend to arrive from Turkey, Cambodia, and Sri Lanka, according to OECD. As asylum-seekers from these countries are often seen as fleeing economic persecution, they hardly qualify for refugee status based on the criteria of the Japanese government. However, the large number of asylum-seekers coming for better economic opportunities hinders the chances of refugees fleeing the persecutions clarified in the Refugee Conventions.
Yet, even in instances where the Refugee Convention should be applicable, scholars contend that Japan has violated its provisions, particularly with the introduction of the new Refugee Recognition Act.
Refugee Recognition Act and the limited approach to persecution
While European nations have actively developed comprehensive regulations, drawing from diverse international experiences to ensure effective refugee protection, Japan’s trajectory in embracing the 1951 Refugee Convention has been unique. It took Japan over three decades to sign the treaty, reflecting a historical lack of emphasis on the refugee issue within Japanese politics and society. This was due to the country’s culturally homogenous nature and its conservation government focusing on rebuilding Japan after WWII.
In contrast to the Convention’s broad principles, Japan has crafted its distinctive approach grounded in the “personal grasp theory”. This principle requires individuals to prove that they are individually targeted by their home government, often necessitating supporting documents as evidence. However, this criterion poses a significant challenge for refugees who may have had to abandon or destroy identification and documentation while escaping perilous situations. Complicating matters, Japan interprets the concept of “persecution” differently, limiting it to situations involving direct threats to an individual’s life and physical safety. This unique interpretation contributes to the complexity of Japan’s refugee recognition system and results in a notably low acceptance rate for refugees.
Recent criticism has also been directed at Japan for apparent non-compliance with the 1951 Refugee Convention, particularly following the June 2023 amendment to the Immigration Control and Refugee Recognition Act. This amendment permits the government to deport individuals who have applied for refugee status more than three times, potentially returning them to countries where they face persecution and violence, which is a direct violation of the principle of non-refoulement specified in the Refugee Convention. Originally slated for implementation in 2021, the policy was delayed due to the tragic death of Wishma Sandmali, a Sri Lankan woman detained in a Japanese immigration detention centre. This shift towards forced deportations raises concerns about Japan’s adherence to the principles outlined in the 1951 Refugee Convention.
Detention centres
Japan does not only contradict the Refugee Convention but also provides inhuman treatment to the very few asylum-seekers who are residing in Japan. Usually, foreigners who are considered subjects of deportation are sent to detention centres. According to the Immigration Services Agency, those with no residence permit in Japan are detained to ensure their custody and prohibit any activity in Japan until they can be repatriated. These include illegal workers, criminals, migrant traffickers, potential terrorists, visa overstayers, and forgers of documents. However, asylum seekers seeking refuge in Japan who are applying for refugee status are subject to detention, assuming that the Japanese government equates asylum-seekers as criminals.
Further, living conditions within detention centres are reminiscent of prisons, marked by harshness. Meals provided thrice daily in the form of cold boxed bento (a Japanese style of meal serving and a special container where people put their food to carry it around) often fail to accommodate health, religious, or cultural dietary restrictions. In contrast to prisoners, whose meals are tailored for health, detainees face unjust limitations.
Detainees can only obtain essential items from a designated “shopping list” featuring food, stationery, and sanitary products. Although purchases are made with detainees’ funds, instances of guards confiscating items have been reported. Sanitary items, typically provided in Japanese prisons, must be purchased or supplied by supporters, causing psychological distress for female detainees. Limited options on the shopping list exacerbate anxiety, especially for those with varying menstrual needs.
Communication with the outside world is severely restricted. Visiting hours are confined to weekdays from 9 am to 3 pm, involving stringent security measures, a 30-minute time limit, and a prison-like setting with a glass barrier. Visitors are prohibited from bringing electronic devices or speaking languages other than Japanese without prior permission. Pay phones are available but require expensive phone cards, making handwritten letters the primary means of communication.
Unjust treatment by officers is a critical issue. Detainees can be held for up to 23 days without formal charges, and some report being questioned in an unrecorded environment without adequate translation. Officers often coerce detainees into self-deportation, leveraging their vulnerable mental and physical states. Language barriers exacerbate misunderstandings, and cases of abusive treatment by guards, leading to injuries, have been reported.
Legal actions, such as a Japanese court ruling and UN statements, highlight the violation of human rights in Japan’s immigration detention system. Former detainees have appealed to the United Nations, prompting investigations and calls for improved conditions and treatment within these detention centres. However, the treatment in Japanese detention centres continues to be inhumane and cruel towards its residents, diminishing not only the rights of refugees but also basic human rights.
Conclusion
Japan grapples with the intricate challenges of refugee recognition in the clash between tradition and the global call for inclusivity. While the nation ratified the Refugee Convention over three decades ago, recent policy shifts, including a restrictive interpretation of persecution and the 2023 amendment allowing repeated deportations, cast doubt on its commitment to international standards. Within Japan’s detention centres, asylum-seekers endure conditions akin to prisons, revealing a stark dissonance with human rights norms. As Japan stands at this critical juncture, navigating the delicate balance between tradition and compassionate response to the refugee crisis, the unfolding narrative underscores the nation’s ongoing struggle to redefine its position in a rapidly evolving global landscape.
Picture by Clay Banks, via Unsplash
