Cutler, Cara --- "The Secretary-General's Proposal to Reform the United Nations Security Council: A Path to a Broader Internal Refugee Policy in Japan" [2005] MurdochUeJlLaw 3; (2005) 12(1/2) Murdoch University Electronic Journal of Law

The Secretary-General's Proposal to Reform the United Nations Security Council: A Path to a Broader Internal Refugee Policy in Japan

Cara Cutler

Contents

• INTRODUCTION
• JAPAN'S INTERNAL REFUGEE POLICY
• GOAL OF PERMANENT MEMBERSHIP IN THE UN SECURITY COUNCIL
• UN REFORM PROPOSALS: A PATH TO REFORM
• CONCLUSION
• Notes

INTRODUCTION

Japan is party to the United Nations Convention Relating to the Status of Refugees (Refugee Convention)[1] and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).[2] The Refugee Convention requires that a person present within a member state's borders not be returned to a country in which the person has a "well-founded fear"[3] of persecution on account of his "race, religion, nationality, membership in a particular social group, or political opinion."[4] The Convention Against Torture requires that member states not return a person to a state in which a person has "substantial grounds" to believe that "he would be in danger of being subjected to torture."[5] Despite its accession to the Refugee Convention and Convention Against Torture, Japan has implemented a "restrictive"[6] policy towards refugees within its borders.[7] Those claiming fear of persecution or torture in their home country face, among other obstacles, difficulty overcoming bureaucratic hurdles in order to submit an application for refugee status,[8] and extremely low refugee recognition rates.[9] Japan has faced criticism that its restrictive policy towards refugees within its borders is contrary to its obligations under the Refugee Convention and the Convention Against Torture.[10] This criticism has had no significant effect. Japan has expressed its strong desire to become a permanent member of the UN Security Council.[11] This goal has become increasingly likely to be attained. Most recently and most significantly, on March 21, 2005, UN Secretary-General Kofi Annan released a series of proposals for sweeping changes to be made to the UN's structure, including expanded membership and possibly expanded permanent membership, in the Security Council.[12] This article will argue that obtaining permanent membership in the UN Security Council is an interest that "Tokyo deems vital to its national interests,"[13] such that if Japan believes that there is a significant likelihood of its attainment if it modifies its internal refugee policies, Japan will choose to make such policies less restrictive and more compliant with the UN Refugee Convention and the UN Convention Against Torture. Part II provides an overview of Japan's internal refugee policies, which have been subject to criticism, and argues that aspects of its internal refugee policy fall short of Japan's obligations under the UN Refugee Convention and the UN Convention Against Torture. Part III discusses Japan's goal of obtaining permanent membership in the UN Security Council and recent events that have made attainment of this goal in closer reach. Part IV argues that Kofi Annan's March 21, 2005 release of concrete proposed changes to the UN and its Security Council, which he has urged nations to consider and adopt by September of 2005, provides the opportunity for external pressures to push Japan to make its internal refugee policy less restrictive and in compliance with the UN Refugee Convention and the UN Convention Against Torture. Part V concludes.

JAPAN'S INTERNAL REFUGEE POLICY

Japan acceded to the United Nations Convention Relating to the Status of Refugees (Refugee Convention) on October 3, 1981.[14] The Refugee Convention requires that member states not return, or refoul, a refugee present in its borders to his home country if he has a "well-founded fear"[15] that if returned he would be subjected to persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion."[16] Japan acceded to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) on June 29, 1999.[17] The Convention Against Torture requires that member states not refoul a person to a state, "where there are substantial grounds for believing that he would be in danger of being subjected to torture."[18] Japan's Immigration Control and Refugee Recognition Act (shutsu nyuko kanri oyobi nanmin nintei-hou)[19] provides for use of an administrative procedure through which those claiming to be refugees who are present within Japan's borders can apply for relief under the Refugee Convention.[20] This administrative procedure is handled by the Ministry of Justice. The administrative procedure of the Ministry of Justice provides a mechanism for applying for refugee status under the Refugee Convention based on one's "well-founded fear" of persecution on account of one of the enumerated grounds of "race, religion, nationality, membership in a particular social group or political opinion."[21] This relief includes, among others, the right to settle in Japan, to obtain authorization to work in Japan, to procure national health insurance, and to obtain a refugee travel document for use for travel outside of Japan.[22] Through the provision of such relief, those persons who obtain refugee status in Japan are treated in accordance with the Refugee Convention.
1. While those who obtain refugee status are treated in accordance with the Refugee Convention, most persons present in Japan with a well-founded fear of persecution if returned to their country of origin, or who believe that there is a substantial likelihood they will be tortured if returned to their country of origin, do not obtain protection from refoulment. Such failure to be protected from refoulment is in direct violation of Japan's obligations under the Refugee Convention and the Convention Against Torture. Japan has not codified its obligations under the Convention Against Torture. The Convention Against Torture is not mentioned in the Immigration Control and Refugee Recognition Act. The result is that if one fears torture upon return to one's country of origin on account of one's race, religion, nationality, membership in a particular social group, or political opinion, one can apply for refugee status. However, if one fears torture for reasons not included in the five enumerated grounds, one lacks a mechanism through which to claim relief from deportation. The result is that a person fearing torture for a reason outside of the enumerated grounds is not given the right to nonrefoulment, though Japan is required to provide this right under the Convention Against Torture.[23] Those seeking to claim refugee status based on a well-founded fear of future persecution on account of one of the enumerated grounds also face a great likelihood of refoulment, in violation of the Refugee Convention. Many bureaucratic obstacles have the affect of preventing those fearing persecution in their home country from even having their claims for refugee status under the Refugee Convention adjudicated. For example, in many cases, "immigration officials...refused to register [internal refugee status] applications. [Refugee status seekers] were not even given application forms to fill in at the immigration office."[24] In some cases, refugees were immediately detained after being denied the opportunity to apply for refugee status.[25] Second, among those able to submit their applications for refugee status to the Ministry of Justice, the percentage of refugee status applications which are granted is extremely low. For example, Japan's refugee recognition rate for 2001 was a mere 3.8%.[26] In 2000, Australia's refugee recognition rate was 93%, that of Canada was 89%, and that of the United States was 67%. One reason for Japan's low refugee recognition rate is adjudicating bureaucrats' reliance on the logical fallacy that one can only fear persecution in his home country if he previously suffered persecution there.[27] Another reason is that while an internal appeals process is available to those who have their refugee status applications denied, no statement of reasons for the initial denial is provided to those who are unsuccessful at the first administrative stage.[28] Third, the obstacles that prevent the submission of refugee status applications coupled with the low refugee recognition rates discourages those who are living illegally in Japan and are eligible for protection under the Refugee Convention from applying for protection. The number of refugee status applications submitted to the Ministry of Justice each year is extremely low. For example, in 2001, only seventy-eight people applied for refugee protection.[29] Moreover, the number of refugee status applications submitted to the Ministry of Justice is low in proportion to the number of foreigners without legal status present in Japan. "[W]ithin the context of Japan's overall undocumented foreign population whose official estimate stood at some 300,000 in 1993, one wonders why so few foreigners," fifty in 1993, "have applied for refugee status in Japan."[30] Similarly refugee status applications, "after the Tiananmen Square incident of 1989 in Beijing did not show sharp increase. It is reported that about 60,000 Chinese students and trainees were in Japan from 1989 to 1990, but surprisingly, few of them applied for refugee recognition...There were only 82 applications in the 2 years from 1989 to 1990. It is possible that many Chinese were discouraged from applying for refugee recognition in Japan."[31] Moreover, "the majority of migrants, whether termed refugees or not, appear to be motivated by a complex mixture of political and economic factors - they are both drawn and driven to their destination."[32] Japan has been sharply criticized for its restrictive immigration policy by scholars,[33] international human rights nongovernmental organizations,[34] domestic nongovernmental organizations,[35] and the United Nations High Commissioners for Refugees.[36] These critics have argued that Japan is not upholding its obligations under international law, specifically under the Refugee Convention and, more recently, under the Convention Against Torture.[37] To date, however, this criticism has had no significant impact on Japan's internal refugee policy. This is unsurprising as other nations have been reluctant to criticize Japan's refugee policy.[38]

   GOAL OF PERMANENT MEMBERSHIP IN THE UN SECURITY COUNCIL

   Japan has expressed its strong desire to become a permanent member of the UN Security Council. For example, on Japan's Ministry of Foreign Affairs' website, a pamphlet entitled In Quest of a New Role: United Nations and Japan,[39] and an article entitled, An Argument for Japan's Becoming Permanent Member,[40] are available in English. Japan's desire to become a permanent member of the UN Security Council and the support for this desire that Japan has received from other nations is frequently stated in joint press releases issued by Japan with other nations.[41] On September 22, 2004, Japanese Prime Minister Junichiro Koizumi announced Japan's intention to seek permanent membership in the Security Council to the UN General Assembly.[42] The likelihood of Japan's attainment of its goal of permanent Security Council membership has increased over recent years due to three factors. First, in September of 2003, UN Secretary-General Kofi Annan announced the creation of a committee to suggest to member nations proposals for restructuring the UN, complete with proposals for restructuring the Security Council.[43] Second, in September of 2004, Japan, Germany, India and Brazil announced the formation of a group called the "G4," to advocate their claims to permanent membership on the Security Council collectively.[44] Third, most recently and most significantly, on March 21, 2005, UN Secretary-General Kofi Annan released a series of proposals for sweeping changes to be made to the UN's structure. The Secretary-General's recent proposals were released in his report, In Larger Freedom: Towards Development, Security, and Human Rights for All.[45] Among the changes to the UN Secretary-General Annan has proposed are two models for reform of the Security Council. One of the two proposals for the restructuring of the Security Council increases the number of permanent members of the Security Council by six, including two additional Asian or Pacific members, an additional member from the Americas, two additional African members, and an additional European member.[46] If approved by the Security Council, and not vetoed by any of its permanent members, this model would allow all four "G4" nations, Germany, India, Brazil and Japan, to become permanent members of the Security Council. Secretary-General Annan has called for nations to vote on his proposals in a special UN General Assembly meeting to be held in September of 2005.[47]

   UN REFORM PROPOSALS: A PATH TO REFORM

   In 2001, in Japan's Refugee Policy: To Be of the World, Ryuji Mukae predicted that, "Japan's [internal refugee] policy has been and will remain restrictive barring pressure from abroad whose satisfaction Tokyo deems vital to its national interests."[48] A domestic opinion poll taken shortly after Japan's accession to the Refugee Convention demonstrates that Japanese citizens, like their government, support a restrictive internal refugee policy.[49] Given Japan's restrictive internal refugee policies to date, the lack of criticism of Japan's internal refugee policy by other nations, and the lack of domestic popularity for providing internal refugee protection, Mukae's prediction seems strong. However, the issuance of In Larger Freedom: Towards Development, Security, and Human Rights for All,[50] by Secretary-General Annan provides the leverage with which UN member states can pressure Japan to make its internal refugee policy more expansive. Obtaining permanent membership to the UN Security Council is an interest that "Tokyo deems vital to its national interests,"[51] such that if Japan believes that there is a significant likelihood of its attainment, Japan will wish to make its internal refugee policy less restrictive and compliant with the UN Refugee Convention and the UN Convention Against Torture. The significance for Japan of Secretary-General Annan's release of In Larger Freedom: Towards Development, Security, and Human Rights for All,[52] can be demonstrated by the fact that, at around the same time that the Secretary-General released his proposal, "Annan caused a fuss with a remark that appeared to suggest that giving a permanent seat to Japan was a foregone conclusion."[53] Similarly, in the same week as Secretary-General Annan's proposal was released, U.S. Secretary of State Condoleezza Rice announced, "the United States unambiguously supports a permanent seat for Japan on the United Nations Security Council."[54] China also announced its support for consideration of the expansion of the number of permanent members of the UN Security Council, though it did not explicitly state whether or not it supports permanent membership for Japan.[55] Given the broad support for expansion of the permanent membership of the UN Security Council, Japan has unsurprisingly demonstrated that it believes that there is a significant likelihood of its attainment of permanent membership on the UN Security Council following the release of Secretary-General Annan's proposal. While Secretary-General Annan issued a statement following his remarks about Japan's potential permanent membership in the Security Council, denying any preference for any particular member state becoming a permanent member of the Security Council, "Japanese Prime Minister Junichiro Koizumi seized on the U.N. chief's remark, 'That's an appropriate idea,' Koizumi said. 'I have heard that there is a consensus that Japan should be the first choice if the council is to be expanded.'"[56] Given Japan's current confidence about its potential opportunity to become a permanent member of the UN Security Council, the time for the "pressure from abroad whose satisfaction Tokyo deems vital to its national interests"[57] suggested by Mukae is now. If UN member states follow the lead of scholars, domestic and international nongovernmental organizations, and the United Nations High Commissioner for Refugees in urging Japan to expand its internal refugee policy during these critical months before the General Assembly votes on Secretary-General Annan's proposed reforms to the UN, Japan is likely to broaden its internal refugee policy. Indeed, UN members states are obliged to pressure Japan to expand its internal refugee policy prior to seriously considering it for permanent membership in the Security Council, as Japan currently does not live up to its obligations under the UN's Refugee Convention and Convention Against Torture. For UN member states to support Japan's permanent membership in the Security Council without Japan bringing its internal refugee policy closer to compliance with the UN's Refugee Convention and Convention Against would weaken the legitimacy of the UN, and all of its treaties, by sending the message that failure to abide by UN treaties comes without cost.

   CONCLUSION

2. Japan's policies towards internal refugees fall short of Japan's obligations under the UN Refugee Convention and the UN Convention Against Torture. Japan's goal of obtaining permanent membership in the UN Security Council has become closer to attainment with Secretary-General Kofi Annan's March 21, 2005 release of proposed changes to the UN and its Security Council. The issuance of the Secretary-General's proposal provides external forces the opportunity to pressure Japan to make its internal refugee policies less restrictive and in compliance with the UN Refugee Convention and the UN Convention Against Torture, and should be seized upon by UN member states.

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   Notes

   [1] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention].

   [2] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 11

   [2] [hereinafter Convention Against Torture].

   [3] Refugee Convention, at art. I(A)(2).

   [4] Id.

   [5] Convention Against Torture, at art. 3(1).

   [6] Ryuji Mukae, JAPAN'S REFUGEE POLICY: TO BE OF THE WORLD (2001). Mukae uses the term "restrictive" to define Japan's internal refugee policy throughout.

   [7] Id. at 9.

   [8] Mukae, supra note 6, at 154, 164.

   [9] Isozaki Yumi, Questioning Japan's 'Closed Country' Policy on Refugees, 703 SEKAI 143 (2002) (Lorinda Kiyama, trans.), translation available at http://www.iwanami.co.jp/

   [10] See e.g., Japan: Government Endangers Refugees' Families in Turkey, Amnesty International, Sept. 2, 2004; Deep Concern Over Refugee Deportation From Japan, United Nations High Commissioner for Refugees, Jan. 18, 2005, available at http://www.unhcr.ch/cgi-in/texis/vtx/news/opendoc.htm?tbl Justin McCurry, Humanitarian 'Stain,' GUARDIAN (Jan. 26, 2005).

   [11] See, e.g., In Quest of a New Role: United Nations and Japan, Ministry of Foreign Affairs of Japan, available at http://www.mofa.go.jp/policy/un/pamph2000/index.html (last visited Mar. 25, 2005). An Argument for Japan's Becoming Permanent Member, Ministry of Foreign Affairs of Japan, available at http://www.mofa.go.jp/policy/un/ (last visited Mar. 25, 2005); Japan-Mongolia Joint Press Release, Ministry of Foreign Affairs of Japan, Feb. 15, 2001, available at http://www.mofa.go.jp/region/asia-paci/mongolia/pmv0102/release.html

   [12] In Larger Freedom: Towards Development, Security, and Human Rights for All, Report of the Secretary-General, U.N. Millennium Summit, 59th Sess., Agenda Items 45 & 55 U.N. Doc. A/59/2005 (2005), available at http://www.un.org/largerfreedom/report-

   [13] Id.

   [14] Convention Relating to the Status of Refugees: Participants, United Nations High Commissioner for Refugees, Feb. 5, 2002, available at http://www.unhchr.ch/

   [15] Refugee Convention, at Art. I(A)(2).

   [16] Id.

   [17] Status of Ratification of the Convention Against Torture, Office of the United Nations High Commissioner for Refugees, Nov. 2, 2004, available at http://www.ohchr.org/

   [18] Convention Against Torture, at Art. 3(1).

   [19] A Guide to the Procedure for Recognition of Refugee Status, Immigration Bureau, Ministry of Justice, 1997, available at http://www.bekkoame.ne.jp/~take-waya/ To Those Who Wish to Apply for Refugee Status, Japan Association for Refugees (July 2004), at 4.

   [20] Immigration Control and Refugee Recognition Act (Unofficial Translation), at art. 61(2) (2004), available at http://www.moj.go.jp/ENGLISH/IB/ib-80.html.

   [21] To Those Who Wish to Apply for Refugee Status, Japan Association for Refugees, July 2004, at 3, 6-7.

   [22] Id. at 4.

   [23] Convention Against Torture, at Art. 3(1).

   [24] Mukae, supra note 6, at 154.

   [25] Id. at 164.

   [26] Yumi, supra note 9.

   [27] Mukae, supra note 6, at 169.

   [28] Id. at 156.

   [29] Id.

   [30] Mukae, supra note 6, at 152-53.

   [31] Isami Takeda, Japan's Response to Refugees and Political Asylum, in TEMPORARY WORKERS OR FUTURE CITIZENS? 433 (1998).

   [32] Kevin Yamaga-Karns, Note, Pressing Japan: Illegal Foreign Workers Under International Human Rights Law and the Role of Cultural Relativism, 30 TEX. INT'L L.J. 559, 579 (1995) (citing James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31 HARV. INT'L L.J. 559 (1995); David A. Martin, Reforming Asylum and Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV. 1247, 1268)).

   [33] See, e.g., HIROSHI KOMAI, MIGRANT WORKERS IN JAPAN 261 (1995); Mukae, supra note 6.

   [34] See, e.g., Japan: Government Endangers Refugees' Families in Turkey, Amnesty International, Sept. 2, 2004.

   [35] See, e.g., Japanese Association of Refugees, available at http://www.refugee.or.jp/ ; Toward Reform of the Refugee Recognition System, Japan Federation of Bar Associations, Dec. 1, 2002, available at http://www.nichibenren.or.jp/en/

   [36] See, e.g., Press Release, Deep Concern Over Refugee Deportation from Japan, United Nations High Commissioner for Refugees, Jan. 18, 2005.

   [37] See, e.g., Japan: Government Endangers Refugees' Families in Turkey, Amnesty International, Sept. 2, 2004.

   [38] See, e.g, Human Rights Developments: Japan, Human Rights Watch, 1993 (stating, "In 1992, the U.S. refrained from any public criticism of Japan's treatment of Chinese dissidents.").

   [39] In Quest of a New Role: United Nations and Japan, Ministry of Foreign Affairs of Japan, available at http://www.mofa.go.jp/policy/un/pamph2000/index.html (last visited Mar. 25, 2005).

   [40] An Argument for Japan's Becoming Permanent Member, Ministry of Foreign Affairs of Japan, available at http://www.mofa.go.jp/policy/un/ (last visited Mar. 25, 2005).

   [41] See, e.g., Japan-Mongolia Joint Press Release, Ministry of Foreign Affairs of Japan, Feb. 15, 2001, available at http://www.mofa.go.jp/region/asia-paci/mongolia/pmv0102/; The 7th Japan-South Africa Partnership Forum, Joint Press Release, Oct. 1, 2004, available at http://www.mofa.go.jp/region/africa/s_africa/joint0410.html.

   [42] Prime Minister Meets with the Chairman of the High-Level Committee, Press Conference Following the 59th Session of the United Nations General Assembly, Sept. 22, 2004, available at http://www.kantei.go.jp/foreign/koizumiphoto/2004/09/

   [43] UN Faces Radical Reform, BBC NEWS, Sept. 23, 2003.

   [44] W&A: A New UN Security Council?, BBC News, Sept. 27, 2004.

   [45] In Larger Freedom: Towards Development, Security, and Human Rights for All, Report of the Secretary-General, U.N. Millennium Summit, 59th Sess., Agenda Items

   [45] & 55 U.N. Doc. A/59/2005 (2005), available at http://www.un.org/largerfreedom/report-

   [46] Id. at 43.

   [47] The U.N. Fights for Its Future, N.Y. TIMES, Mar. 26, 2005, at A12.

   [48] Mukae, supra note 6, at 174.

   [49] Takeda, supra note 31, at 446.

   [50] In Larger Freedom: Towards Development, Security, and Human Rights for All, Report of the Secretary-General, U.N. Millennium Summit, 59th Sess., Agenda Items 45 & 55 U.N. Doc. A/59/2005 (2005), available at http://www.un.org/largerfreedom/report-

   [51] Id.

   [52] Id.

   [53] Gathering Momentum, JIJI PRESS WEEKLY DIGEST OF JAPAN POLITICAL/ GENERAL NEWS, Mar. 25, 2005.

   [54] Nicholas Kralev, Rice Seeks an End to Beef Ban Offers to Back Japanese Bid for U.N. Seat, WASH. TIMES, Mar. 19, 2005, at A9 (internal quotation marks omitted).

   [55] China Supports U.N. Reforms, HINDU, Mar. 24, 2005.

   [56] Id. See also, Government Hails Annan's Plan for U.N.: Plans to Curry Favor in Pursuit of Security Council Seat, DAILY YOMIURI, Mar. 23, 2004.

   [57] Mukae, supra note 6, at 174.