Posted by debito on October 29th, 2007
Hi Blog. Nick Wood reports:
Legal challenge to the fingerprinting and photographing of foreign residents of Japan on their re-enter to the country
The fingerprinting and photographing of (permanent and non-permanent) foreign residents on their re-entry to Japan (with the implementation of the revised Immigration Control and Refugee Recognition Act) constitutes a discriminatory action in breach of the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR).
Relevant International Law
The Universal Declaration of Human Rights (UDHR) establishes the principle that “[e]veryone has the right to leave any country, including his own, and to return to his country.”(1) The International Covenant on Civil and Political Rights (ICCPR) similarly establishes that “[e]veryone shall be free to leave any country, including his own,”(2) and that “[n]o one shall be arbitrarily deprived of the right to enter his own country.”(3)
The right to return extends to those who have obtained citizenship in a third state, since the definition of “own country” in these provisions of the ICCPR is not limited to “country of nationality.” According to the U.N. Human Rights Committee, it applies as well to “an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.” (See ICCPR General Comment No. 27, para. 20 (U.N. DOC. CCPR/ C/21/Rev.1/Add.9, 2/11/199): “The scope of ‘his own country’ is broader than the concept ‘country of his nationality.’ It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”)
The present practice (to be terminated on 20 November 2007) of allowing foreign residents with re-entry visas to enter Japan through the same passport control as Japanese citizens is de facto recognition of their right of return and to be accorded the same treatment as those carrying Japanese passports.
The issuance of a re-entry visa by the Ministry of Justice provides a foreign resident with a legitimate basis to consider Japan as “his own country”.
Predicated on the provisions of UDHR and ICCPR, foreign residents have a justifiable claim to a “special tie” to Japan and cannot be considered “mere aliens”. They therefore have a right to return. Moreover, this right to re-enter Japan has been equated through custom and practice with that of Japanese citizens whose right to return is based on nationality. Thus, to treat foreign residents differently from Japanese nationals (that is, by insisting on the collection of biometric data before admission to Japan is allowed, and to thereby hinder the exercise of their right to return) is a discriminatory action in breach of UDHR and ICCPR.
In order to comply with relevant international law, Japan should either a) collect biometric data from both foreign residents and Japanese nationals as they re-enter the country, or b) terminate the discriminatory treatment of foreign residents.
Nick Wood, University Teachers Union
1. Universal Declaration of Human Rights, Article 13(2).
2. International Covenant on Civil and Political Rights, Article 1(2).
3. International Covenant on Civil and Political Rights, Article 12(4).
Based on: Human Rights Watch Publications
IV. Freedom of Movement in International Law