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  • Nick Wood on NJ Fingerprinting policy as breach of international treaty

    Posted by Dr. ARUDOU, 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.”)

    Present Practice

    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”.

    Argument

    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

    Notes
    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
    http://hrw.org/reports/2005/cuba1005/4.htm#_ftn199
    ENDS

    7 Responses to “Nick Wood on NJ Fingerprinting policy as breach of international treaty”

    1. Jerry Says:

      You are kidding right? Where is the GoJ denying you the right to reenter the country? They’re not. You can enter and exit as often as you like with your PR visa – you simply have to submit to a legal and reasonable requirement that the government has placed on your reentry.

    2. Thomas Says:

      Thanks for this legal argument.

      Sign the petition here:
      http://www.ipetitions.com/petition/fingerprints-japan/index.html

    3. debito Says:

      Debito,

      I would really like to get a set of thin rubber fake fingertips with suitable messages printed on them in reverse. Examples:

      – “NOT A TERRORIST”

      – “I LIVE HERE”

      or, for the less diplomatic among us,

      – “FUCK YOU!”

      And so forth. I think slipping them on before giving one’s fingerprints at immigration would send a clear message. Anyone out there want to make up a batch?

      –OR HOW ABOUT THE KANJI (ONE ON EACH FOREFINGER) FOR “HAN” AND “TAI”? I KNEW SOMEONE WHO CARVED THAT INTO HIS SKIN WITH A NEEDLE DURING THE GAIJIN CARD FINGERPRINTING DAYS… DEBITO

    4. debito Says:

      FEEDBACK FROM CYBERSPACE:
      Hmmm, I just googled this… This was in the fall. So, this happened during the Obuchi cabinet, not the 2nd Hashimoto cabinet.

      If you want to pursue this point with current politicians, you might call MOJ and ask for a list of their parliamentary vice-minister(s) when Nakamura was Justice Minister. (I can’t get that to come up on Google.)

      The vice-ministers are the up-and-coming politicians “in training” for bigger and better things, and might very well be in some position of power right now (within the Cabinet or within the LDP), and it would be interesting to follow up on what their opinions were in 1998 (it would be very politically difficult to say that they opposed elimination of the fingerprinting if their minister said it was a human rights issue) vs. what their current stance is.
      END

    5. debito Says:

      From: interac@generalunion.org
      Subject: Fingerprint Protests
      Date: October 31, 2007 12:17:01 AM JST
      Reply-To: interac@generalunion.org

      Hello all,

      I am interested in organizing a protest against the unwarranted fingerprinting and facial scans of foreigners in Japan.
      All of the justifications given seem extremely thin, especially when the only terrorist attacks that have happened in the
      past few years were Japanese (the Aum cult Tokyo gas attacks http://en.wikipedia.org/wiki/Aum_Shinrikyo ). This
      action will only strengthen the undercurrent of suspician many hate filled people have towards foreigners, and cast a
      bigger “preemptive” suspicion on us in the eyes of the law (and that is bad news in a country without trial by jury,
      habeas corpus and the presumption of innocence).

      I think the protest should be held as close to the capitol buildings in Tokyo, Osaka, Sapporo, Fukaoka, Kyoto, Nagoya
      and Sendai as we can get a permit for. When even permanent residents and green-card holders are getting criminal
      treatment in front of their Japanese families, I think it is clear that this has nothing to do with terrorism… This is
      racial profiling and harassment.

      I dont know where to start getting the permits, but I trust that some of you do.
      How do we get started?

      Links:

      an online petition making the rounds, sentiment against this law is strong:
      http://www.ipetitions.com/petition/fingerprints-japan/signatures.html

      Articles from around the world collect here (thanks Debito):
      http://www.debito.org/index.php/?p=665
      http://www.debito.org/index.php/?p=673
      http://www.debito.org/index.php/?p=671
      http://www.japantoday.com/jp/comment/1177

      Solidarity,
      Erich
      http://interac.generalunion.org

    6. Kimpatsu Says:

      If this fingerprinting is a violation of international law, can’t we sue Japan in an international court, like at the Hague? Didn’t Japan try to sue atomic bomb-owning nations a few years back in the same way, declaring that all nuclear weapons were de facto illegal? (They lost, but that didn’t surprise me.)
      How wuld we go about doing this?

    7. debito Says:

      FEEDBACK FROM CYBERSPACE

      Regarding Japan’s new immigration procedures, in addition to signing the
      petition at the address below, I would like to suggest that any
      non-Japanese members of this list who disapprove of the new procedures
      should contact their political representatives in their home countries and
      ask them to take whatever action they can to persuade the Japanese
      government to reconsider its policy.

      As a British citizen, I have written to my MP and also to the Chair and
      Vice-Chairs of the British-Japanese All-Party Parliamentary Group. I would
      like to encourage other British citizens concerned about this matter to do
      the same.

      The Petition:
      http://www.ipetitions.com/petition/fingerprints-japan/index.html

      List of UK Parliament MPs:
      http://www.parliament.uk/directories/hciolists/alms.cfm

      British-Japanese All-Party Parliamentary Group homepage:
      http://www.publications.parliament.uk/pa/cm/cmallparty/register/memi63.htm

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