GUJARAT NATIONAL LAW UNIVERSITY

Public International Law Internal Continuous

Evaluation

STATE RESPONSIBILITY WITH RESPECT TO REFUGEES

AND IMMIGRANTS IN INTERNATIONAL LAW- A
COMPARATIVE STUDY OF THE CITIZENSHIP AND
IMMIGRATION LAWS OF THE WORLD.

Country: JAPAN

Submitted to: Submitted by:

Prof. Dr. K. Parameswaran Suryansh Singh
Prabhavati Baskey ma’am 18B123

Suryansh.nayyar@gmail.com

2018-2023

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INTRODUCTION OF THE JURISDICTION:

Japan is an island country found in the east Asia, bordered by the sea of
japan to the west and pacific ocean to the east. It spans from sea of
Okhotsk in the north and east china sea and Philippines sea to the south.
Japan comprises of a total of 6852 islands, with 5 main islands (Hokkaido,
Honshu, Kyushu, Shikoku, Okinawa) which is 97% of the country’s area,
and has a total area of 377,975 sq. km. Japan’s capital is Tokyo. Japan
has a total population of 129 million and is home to 2.43 million
migrants, comprising of Japanese, Chinese, Korean and others, where
Japanese people are a majority comprising 97.8% of the total population.
Ethnic Japanese is used to refer to those people who belong to the
mainland of japan, especially Yamato. The Japanese government is a
constitutional monarchy, running under the framework of constitution of
japan, where the emperor is the head of state and is merely a ceremonial
head and has limited powers. The constitution of japan was adopted in
1947. The government is directed and controlled by the cabinet, along
with Ministers of state and the prime minister. The cabinet is formed by
the prime minister, he is appointed by the emperor, and is designated by
the national diet. The National Diet is the legislature. It is bicameral in
nature, consisting of two houses with the House of Councillors (upper),
and the House of Representatives (lower). The Japanese legal system is
based on the civil law system (19th Century European legal systems).

THE CONSTITUTIONAL MECHANISM

REGARDING CITIZENSHIP AND IMMIGRATION
IN THE CONSTITUTION OF JAPAN:

There are no provisions in the constitution of japan for the citizenship or

the citizens of japan, but they have a national legislation regarding the
provisions of the citizenship of japan, it’s called “Japanese citizenship

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act”. The legal designation of the Japanese nationality and the set of
rights granted to the Japanese citizens, are granted to those people who
have met the criteria for citizenship by either naturalization or
parentage. The question of granting nationality is in the jurisdiction of
minister of justice and the nationality act of 1950 governs the nationality.
As per the provisions regarding the immigration, there are no provisions
in the Japanese constitution, but there are separate immigration laws for
the same for people entering and staying in japan as a worker, student or
a spouse, students and workers need a specific visa to certify their stay in
japan stating that they have sufficient funds to cover all their expenses
during their time in japan, handled by the immigration bureau.1

THE MAJOR COMMUNITIES OF THE REFUGEES

WHICH ARE SUBJECT TO THE HUMAN RIGHTS
VIOLATION IN JAPAN:

Although Japan is the 3rd largest economy in the world, but the refugee
status has been granted to less than 100 people (immigrants), in the last
five years. Japan is one of the least welcoming countries in the world.
Refugees from Asia, middle east, Africa and many other countries seek
refuge in Japan. Vietnamese people were refugees in Japan and still are,
In the late 1970s post the Vietnam war, more than 10000 refugees were
taken in Japan, known as “Boat People”, these people were from 3
countries, Indochina (Vietnam, Laos and Cambodia) due to this Japan
became an affiliate of the refugee treaty in 1981 2. It is difficult to get
refugee status in Japan because the applications are handled by the
immigration bureau and they prefer ‘controlling’ rather than protecting
them. They did open their gates for refugees but at what cost, when they
prefer ‘controlling’ rather than protecting, doing this they violate several
of their human rights which are basic in nature. When they arrive in
Japan, the refugees are not provided with even the basic necessities, they
1
“Entering Japan” (Entering Japan - Immigration and Visa Matters) <https://www.japan-
guide.com/e/e2221.html> accessed March 16, 2020.
2
Japan Association, “難民支援協会 / Japan Association for Refugees” (Refugees in Japan / Japan Association
for Refugees) <https://www.refugee.or.jp/en/refugee/> accessed March 14, 2020.

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become homeless, jobless, no food, no clothing, no shelter as for these
amenities to be availed by the refugee, he/she has to have status of
refugee, the application process of which can take up to an average of 3
years and even the funds so provided with the said status it is not
possible to afford a medical treatment, if it is needed. Some other minor
communities like the Chinese, north Koreans, and other minority
communities face problems mentioned above and this in turn leads to
violation of basic human rights such as lack of providing basic necessities
for the sustenance of human life, In a report it was stated that, due to
lack of proper documentation the refugees are not granted the status and
are thus detained, what is said to be “prison-like” facility where 5-6
people are stuffed in one room, and are detained for over a year3.

THE NATIONAL LEGISLATIVE MEASURES

CONCERNING THE NATIONALITY AND THE
IMMIGRATION LAWS IN JAPAN:

Citizen: A person having or acquired Japanese Nationality is a Japanese

Citizen.

Immigrant: a person who has come to our country in order to live there
permanently.

Refugees: The term encompassing refugees used in the law is “Stateless

Persons” which means a person who has neither the nationality of his
home country nor foreign nationality.

In Japan, there is a problem in defining the citizen of japan, as to who or

what is the citizen. There is no proper definition of a citizen, immigrant,
refugee or displaced person in the constitution or the nationality law or
in any legislation.

Although Article 2 of the nationality law states three situations where a

person can become a Japanese citizen at birth,
3
Japan Association, “［特集］難民の「収容」とは何か？ − 認定 NPO 法人 難民支援協会” (日本のなか
で の 難 民 支 援 − 認 定 NPO 法 人 難 民 支 援 協 会 (detention of
refugees) <https://www.refugee.or.jp/jar/report/2016/04/18-0000.shtml> accessed March 14, 2020.

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 1. When either parent is a Japanese citizen at the time of birth. If the
child has foreign nationality at birth, child must be registered
under 3 months or live in Japan before the age of 20 and notify the
MOJ.
2. When either parent dies before the birth and is a Japanese citizen
at the time of death.
3. When the child is born in Japan and both parents are unknown
(nationalities)4.

Acquisition of citizenship:

There are two ways of acquiring Japanese citizenship, one is by

naturalization and the other is by parentage. The procedure mentioned
above is naturalization by birth under article 2 of nationality law.
Although the final permission of the minister of justice shall be obtained
as per article 4. Grounds for acquisition are mentioned in the article 5 of
the nationality law and are as follows:

 Person has domiciled in Japan for five years or more consecutively;

 Person is twenty years of age or more and of full capacity to act
according to the law of his or her home country;
 Person is of upright conduct;
 Person is able to secure a livelihood by one's own property or
ability, or those of one's spouse or other relatives with whom one
lives on common living expenses;
 Person has no nationality, or the acquisition of Japanese nationality
will result in the loss of foreign nationality;
 Person has never plotted or advocated, or created or belonged to a
political party or other organization which has plotted or advocated
the downfall of the Constitution of Japan or the Government
existing under, the Constitution of Japan.5

Loss of Citizenship:
4
Yamada Ryōichi and Tsuchiya F, An Easy Guide to the New Nationality Law (Japan Times 1985).
5
(THE NATIONALITY LAW) <http://www.moj.go.jp/ENGLISH/information/tnl-01.html> accessed March
23, 2020.

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Under article 11 of the act, it is stated that a Japanese citizen shall lose
citizenship if he/she acquires foreign nationality by own choice, it is also
stated in item 2 of article 11 that if he chooses foreign citizenship in
accordance with foreign laws he/she shall lose Japanese citizenship.

Under article 12, a person who has acquired foreign nationality by birth
shall lose Japanese citizenship retroactively from birth, unless the person
clearly indicates his/her volition to reserve Japanese citizenship
according to provisions of Family registration law, 1947.

Under article 13, a person having foreign nationality may renounce their
Japanese citizenship by making a notification to the minister of justice,
item 2 of article 13 says that a person who has made a notification with
the preceding paragraph shall lose Japanese citizenship with the
notification.

Unconditional Birth right Citizenship:

Citizenship in japan is unconditional at birth under article 2 of the

Japanese nationality law. Article 2 states that, a child is a Japanese
national in the following cases:

 When during birth, the father or mother of the child is a

Japanese citizen.
 When the father who died before the birth of the child was a
Japanese citizen when he died.
 If the child is born on Japanese soil and the parents are stateless
or have no nationality.

Birth right Citizenship with Conditions:

Article 3 of the Japanese nationality law provider for birth right

citizenship with conditions. Article 3 states that, excluding a child who
was once a Japanese citizen, a child under 20 age whose father/mother
has acknowledged paternity/maternity respectively and was a Japanese
citizen at the time of birth of child, may acquire citizenship through a
notification to the minister of justice, but the said father or mother

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should presently be a Japanese citizen or at the time of their death, and
item 2 of article 3 says that if the child makes the notification under 20
years of age then he/she shall acquire citizenship at the time of the
notification.

Basis of exemption or exclusion:

1. A person possessing nationalities of two countries, one of Japan and

one foreign nationality is the said person does not make a
declaration to choose Japanese nationality before the age of 22,
shall be deprived of Japanese nationality.
2. If the said person chooses the other nationality, and not the
Japanese nationality.
3. Any person who made a false notification regarding the eligibility
or the documents concerned.

Is religion a basis of exemption or exclusion ?

NO, religion is not a basis for exemption or exclusion from the nationality
in Japan.

THE ADMINISTRATIVE AND POLICY MEASURES

CONCERNING THE NATIONALITY AND THE
IMMIGRATION ISSUES:

In Japan, the law relating to the citizenship or nationality is governed by

the Japanese nationality law, with a total of 20 articles stating everything
such as acquisition of citizenship, dual citizenship or loss of citizenship.
But Japan’s immigration policy is not very friendly, that does not rely on
immigrants or foreign workers, also does not want to mix cultures. Japan
is well noted for their historic isolation. But people can still migrate to
japan on student visa, technical intern or low skilled worker, family
permit, or highly skilled workers, now in 2018 Japan increased the
number of years for stay of low skilled workers from 3-5 years. In
December 2018, after a long discussion, the Diet passed the amendment

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for Immigration Control and Refugee Recognition Act, officially opening
Japan for lower-skilled foreign workers. Confronting basic shortages of
hands-on work and intense pressure from industry organisations, the
legislature at long last took action6. But still every year less than 1% of
the total immigration applications are accepted. Japan has one of the
most swiftly aging societies on the planet, with individuals ages 65 and
more established representing more than one-fourth of the population—a
share expected to increment steeply going ahead. To address the
expanded labour shortages this articulated maturing brings, the
legislature since the 1990s has gone to migration, though in
exceptionally little numbers and to a great extent without open
discussion. Lately, while the national government has professed to
advance labour force participation of older and female workers over
increased immigration7. Japanese economic prospects depend upon its
demographic future, its population is expected to fall by 30% by 2065
and 38% will be 65 or older.

DATA ON THE NUMBER OF

IMMIGRANTS/REFUGEES:

The total number of immigrants in Japan in 2019 was 24,98,891

immigrants.

 MEN: 11,12,671.
 WOMEN: 12,01,983.
 CHILDREN: 1,84,237.8

THE PREVALENT STATE PRACTICE LANDMARK

AND LATEST SUPREME COURT JUDGEMENT:

6
“Japan's Immigration Policies ”(nippon.com November 29, 2019) <https://www.nippon.com/en/in-
depth/d00515/japan’s-immigration-policies-put-to-the-test.html> accessed April 5, 2020.
7
Green D, “As Its Population Ages, Japan Quietly Turns to Immigration” (migrationpolicy.org July 12, 2017)
<https://www.migrationpolicy.org/article/its-population-ages-japan-quietly-turns-immigration> accessed April
6, 2020.
8
“United Nations Population Division | Department of Economic and Social Affairs” (United Nations)
<https://www.un.org/en/development/desa/population/migration/data/estimates2/estimates19.asp> accessed
April 6, 2020.

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The last landmark judgement by the supreme court of japan was in the
Mapplethorpe case, in which the court held that Mapplethorpe photos
containing images of male genetalia are not obscene, this was first time
the highest court overruled lower one on obscenity.

Policies have been made and are to be proposed Constitutional revision

front & and center, in which policies related to amendments are given
special and separate treatment. The title of which was ‘Towards a
constitution befitting of a new age’9.

Japan’s economic and fiscal management reforms have been updated to

assess current economic situation of japan and to establish a system for
the aging population alongwith economic revitalization10.

COUNTRY SIGNATORY OF THE INTERNATIONAL

HUMAN RIGHTS INSTRUMENTS:

1. United Nations Charter 1945: Not signed and not ratified.

2. The Universal Declaration of Human Rights 1948 : Not signed and
Not ratified.
3. The International Covenant on Civil and Political Right 1966 :
Signed on 30 May, 1978 and Ratified on 21 June, 1979.
4. The International Covenant on Economic Social and Cultural Rights
1966: Signed on 30 May, 1978 and Ratified 21 June, 1979.
5. The Convention on the Elimination of All Forms of Discrimination
against Women, 1979: Signed on 17 July, 1980 and Ratified on 25
June, 1985.
6. The Declaration on the Human Rights of Individuals Who are not
Nationals of the Country in which They Live, 1985: Not signed and
Not ratified.
7. The Convention on the Rights of the Child (with protocols), 1989:
Signed on 21 September 1990 and Ratified on 22 May, 1994.

9
“Constitutional Revision Front and Center in Japan Ruling Party's 2020 Policy Draft” (The Mainichi February
19, 2020) <https://mainichi.jp/english/articles/20200219/p2a/00m/0fp/004000c> accessed April 6, 2020.
10
“Economic and Fiscal Management Reforms 2019” (June 21, 2019) <https://www5.cao.go.jp/keizai-
shimon/kaigi/cabinet/2019/outline_en.pdf> accessed April 6, 2020.

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 8. United Nations Declaration on the Rights of Indigenous Peoples,
2007: Japan voted in favour and was adopted on 13 September,
2007.
9. The Convention relating to the Status of Refugees, 1951, and the
Protocol relating to the Status of Refugees, 1967: Ratified on 3
October 1981.
10. The Convention relating to the Status of Stateless Persons,
1954: Not signed and Not ratified.
11. The Convention on the Reduction of Statelessness, 1961: Not
signed and Not ratified.
12. The Declaration on Territorial Asylum, 1967: Not signed and Not
ratified.

SIMILARITIES OF STATE PRACTICE OF JAPAN

WITH INDIAN CITIZENSHIP AND IMMIGRATION
LAWS:

The process of acquiring citizenship in Japan and in India have some

similarities but also have some differences as well. In India under section
3 of citizenship act, 1955, a person can acquire citizenship by birth but if
one of the parents is an illegal migrant/refugee, the person is declined
the Indian Citizenship whereas there is no such provision or ground of
exclusion in Japan, under the same circumstances the citizenship is
granted. The rule concerning dual citizenship is almost same in both the
countries as, in India there is single citizenship and the person is not
allowed to hold dual citizenship whereas in Japan the person can hold
dual citizenship until the age of 20 but then he/she has to make a choice
of nationalities by making a notification, otherwise Japanese nationality is
taken away. The grounds for termination/loss of citizenship in India and
Japan are same i.e. substantial rule are largely similar and in consistent
practice. In 2019, India introduced Citizenship amendment Act which
lightened the requirements for acquisition Indian Citizenship for people
of certain communities from Pakistan, Bangladesh and Afghanistan, this

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is a special and specific provision. However, Japan does not have any
such provisions and has its doors opened for people from all countries
and communities.

DETAILS OF THE NATIONAL WEBSITE OR DATA

BASE OF JAPAN:

Name: Ministry of foreign affairs (Japan).

Website: http://www.mofa.go.jp.

CONCLUSION:

In the end, I would like to conclude by saying that there are somethings
that India can learn/take from Japan and the Japanese nationality law and
that is Japan has opened their doors for immigration and nationality for
people from every country and every community and has no community
or country specific amendments unlike India. But altogether India’s
nationality/immigration laws might be slightly better than Japan because
India has not been very conservative regarding refugees and immigrants,
but the same cannot be said for Japan. in fact, after long Japan has
opened their doors to people who want stay and work their which is
essential for their demographic future, with a chunk of population
turning 65 or older.

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BIBLIOGRAPHY/WEBLIOGRAPHY:

1. “Entering Japan” (Entering Japan - Immigration and Visa Matters)

<https://www.japan-guide.com/e/e2221.html> accessed March 16,
2020.
2. Japan Association, “難民支援協会 / Japan Association for Refugees”
(Refugees in Japan / Japan Association for Refugees)
<https://www.refugee.or.jp/en/refugee/> accessed March 14, 2020.
3. Japan Association, “［特集］難民の「収容」とは何か？ − 認定 NPO 法人
難民支援協会” (日本のなかでの難民支援 − 認定 NPO 法人 難民支援協会
(detention of refugees)
<https://www.refugee.or.jp/jar/report/2016/04/18-0000.shtml>
accessed March 14, 2020.
4. Yamada Ryōichi and Tsuchiya F, An Easy Guide to the New
Nationality Law (Japan Times 1985).
5. (THE NATIONALITY LAW)
<http://www.moj.go.jp/ENGLISH/information/tnl-01.html>
accessed March 23, 2020.
6. “Japan's Immigration Policies ”(nippon.com November 29, 2019)
<https://www.nippon.com/en/in-depth/d00515/japan’s-immigration-
policies-put-to-the-test.html> accessed April 5, 2020.
7. Green D, “As Its Population Ages, Japan Quietly Turns to
Immigration” (migrationpolicy.org July 12, 2017)
<https://www.migrationpolicy.org/article/its-population-ages-japan-
quietly-turns-immigration> accessed April 6, 2020.
8. “United Nations Population Division | Department of Economic and
Social Affairs” (United Nations)
<https://www.un.org/en/development/desa/population/migration/da
ta/estimates2/estimates19.asp> accessed April 6, 2020.
9. “Constitutional Revision Front and Center in Japan Ruling Party's
2020 Policy Draft” (The Mainichi February 19, 2020)
<https://mainichi.jp/english/articles/20200219/p2a/00m/0fp/004000
c> accessed April 6, 2020.
10. “Economic and Fiscal Management Reforms 2019” (June 21, 2019)
<https://www5.cao.go.jp/keizai-
shimon/kaigi/cabinet/2019/outline_en.pdf> accessed April 6, 2020.

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