Comparative Perspectives on Japanese Migration Policy and Law. An Epilog.

On 15 December, an nccr – on the move workshop on Comparative Perspectives on Japanese Migration Policy and Law took place at the University of Fribourg, Switzerland. The scope of the comparative legal analysis that was at the heart of the workshop was slightly broadened by inviting a migration scholar from Israel. Israel is, like Japan and Switzerland, also characterized by a restrictive asylum and migration policy. However, migration and asylum are realities that the legal systems of all three countries have to deal with.

Invited speakers were (in order of their presentation): Sarah Progin-Theuerkauf (University of Fribourg), Michiya Kawamura (Osaka School of International Public Policy OSIPP, Osaka, Japan), Yukari Ando (OSIPP, Osaka, Japan), Oliver Freeman (Intercultural Cities Consultant to the Council of Europe, Lausanne, Switzerland), Avinoam Cohen (Tel Aviv University, Israel), Barbara von Ruette (University of Bern, Switzerland), Benedikt Pirker (University of Fribourg) and Margarite Zoeteweij (University of Fribourg). The workshop was attended by staff and students from the universities of Fribourg and Bern.

The workshop was organized to critically analyze and compare the Japanese, Israeli and Swiss legislation, applicable to the immigration and integration of foreigners who have moved for various reasons. The protection of the human rights of these migrants (procedurally and substantially) was also debated. By inviting speakers with backgrounds in different academic disciplines, the organizers aimed at stimulating the speakers and participants to think outside of the box, and to analyze their own research within a broader context.

Avinaom Cohen was the first speaker in the first panel. His presentation, on the development of a law on migration and asylum in Israel, gave an insight in the historically and politically rough terrain in which this law now needs to be brought further in line with international human rights norms. He spoke about the contradictions in the policies of national and local authorities in their dealing with irregular migration. Legal migration (by Jews and descendants of Jews in the first, second and third generation) is not regarded as typical migration but more as a “return to the motherland” – as can also be seen from the name of the first Israeli law dealing with migration, the so-called Law on Return. Issues such as low quotas for labor migration despite labor market shortages sounded familiar to the other participants in the workshop, and it came as no surprise that also in Israel, because of the rise of right-wing politics, a solution to this equation has yet to be found. The situation of asylum seekers from Sudan and Eritrea under Israeli asylum law was depicted by Avinoam to be dire. Discouraging policies executed by local as well as national politicians aim at bringing down the number of asylum seekers, which according to Avinoam’s presentation resulted in many asylum seekers whose application has not yet been processed seeking opportunities to move onwards. The situation of Palestinian non-citizens and the ever-stricter legal provisions on family reunification with family members from outside the occupied territories were discussed intensively with the other participating academics.

The second presentation by Yukari Ando, on the Japanese migration and asylum law and the question of its compatibility with international human rights law, showed a striking resemblance with the presentation of Avinoam Cohen. Japanese law, for a very long time, did not recognize the notion of asylum seeker. Its migration law (1951) was primarily focused on controlling migration from surrounding countries and restricting foreigners’ access to the Japanese labor market and public services. The Refugee Convention was signed by Japan in 1981, which required an amendment of the Immigration Control law from 1951 and resulted in the entry into force of the first law in Japan recognizing the right to claim asylum (1982 Immigration Control and Refugee Recognition Act). Nevertheless, this Act also had as its starting point the limitation of migration to Japan, and there was no obligation for the refugee to be heard or to be assisted by legal counselling or representation at any stage of the application procedure. For this reason, the procedure was modernized in 2005 and the function of Refugee Examination Counsellor was added to the procedure. This Counsellor comes into play when the asylum seeker has appealed against a first instance negative decision on his application from the Ministry of Justice. However, the findings of the Counsellor are not binding on the judiciary and in any case most of the appeals against a negative first instance decision are not considered as valid asylum applications by the Counsellors. This leads to Japan having extremely low numbers when it comes to asylum applications and the number of recognized refugees per year is below 100.

The two presentations were discussed by Benedikt Pirker, who chaired this panel. The afternoon program, chaired by Margarite Zoeteweij, had a different focus and the discussion developed from one centered on the legal framework for the immigration of foreigners to their integration into the host societies and the policies put in place to facilitate the effective integration and co-habitation of migrants in the incumbent society.

Michiya Kawamura’s presentation on the failure of the Japanese system to effectively integrate foreigners into the Japanese society took the presentation of Yukari Ando one step further. Whereas Yukari’s presentation had focused entirely on the legal framework for immigration and asylum, Michiya Kawamura’s presentation tried to answer the question of why there was no pressure from the Japanese society to reform the legal framework to bring it in line with international standards on human rights protection. He focused on inclusive and exclusive citizenship policies, and why factual citizenship in Japan differs so immensely from normative citizenship. Kawamura advocated the view that, whereas international developments have influenced thought and norms in Europe in such a way that normative citizenship is not so much dependent on factual citizenship as it is in Japan. He claimed that, since Japan was beaten in the WWII which seriously harmed its self-esteem and its willingness to act on the international scene, it decided to give up value-oriented diplomacies. Furthermore, he explained the unwillingness to offer refuge by the fact that Japan is famous for its high public safety and low crime rates and that many Japanese are afraid that the influx of refugees and immigrants is very harmful to their wellbeing. With public opinion so decidedly against migration, Japanese politicians feel it is wiser to be criticized by the international society for having migration and asylum laws that do not incorporate international human rights standards than to adapt their laws to international law and be heavily criticized by the domestic population.

The following presentation by Oliver Freeman, who has worked for the Council of Europe’s Intercultural Cities Programme for a long time and is now external consultant to the Council of Europe, shared his view on the necessity of the involvement of civil society alongside local and regional governments in order to welcome and integrate migrants into the host society by continuously providing for structures, information and training for the host society and the migrants alike. He especially emphasized the importance of a supportive local government that is keen on managing diversity positively and realizing the diversity advantage. The attitude of local governments does not always have to be in line with the national government’s stance on integration and diversity, but the Intercultural Cities index does show that involvement at the local and regional level benefits greatly from support at the national level, and that success at the regional level feeds directly into growing support at the national level. In his presentation, Freeman compared the success (and failure) of a number of Intercultural Cities, taking examples especially from the three countries that were represented by participants in the workshop (Israel, Japan and Switzerland), showing how the migration and asylum policies discussed in the presentations of Avinoam, Yukari and Michiya are translated (or not) at the local level – leading to relatively positive experiences where one would not immediately expect it (such as for example in Haifa, Israel’s most ethnically mixed city, and Hamamatsu, with more than 97% of its population being Japanese but which still adopted an intercultural cities strategy), which might in time also translate in a more positive view of its population on migration as a phenomenon and migrants as stakeholders in society.

The last presentation by Barbara von Rütte gave an overview of recent decisions of the European Court of Human Rights regarding the rights of migrants and asylum seekers in Switzerland, and the reception of such decisions by the Swiss authorities and legislator. Focusing on the right to family life, the right to a fair trial and the right to life, Barbara’s presentation showed how the Court of Human Rights could change the interpretation of a law or lead to an amendment of the law in Switzerland – leading to a migration law and practice that has a higher standard of human rights protection than the law and practice in Israel and Japan, whereas the policy and politics of migration in all three countries have much in common. Barbara’s presentation led to question and comparisons between the systems from the participants of the other two countries represented (Japan and Israel), and in this way this last presentation was an excellent closure of the workshop.

All participants in the workshop had ample opportunity to present their own research and thoughts and ask questions to the other participants. The atmosphere during the workshop was very open, despite the differences in academic cultures, and the comparative scope of the workshop made sure that all participants came out of the workshop with food for thought and impetus to continue their own research in cooperation with those that were present at the workshop.

Margarite Helena Zoeteweij, nccr – on the move PostDoc on the project The Emergence of a European Law on Foreigners