ARTICLES ON THE OTARU ONSENS LAWSUIT HIGH COURT DECISION OF SEPT
News, Hokkaido Shinbun Editorial (trans)
Court says city not remiss for letting bathhouse bar foreigners
(reprinted in abridged version in Japan Times)
SAPPORO, Sept. 16 Kyodo - The Sapporo High Court on Thursday
rejected an appeal seeking compensation from a Hokkaido city government
for failing to stop a policy of refusing foreigners at a bathhouse under
The suit seeking a total of 6 million yen in damages from the Otaru
city government and the bathhouse operator was filed Feb. 1, 2001, by
David Aldwinckle, a 39-year-old U.S.-born local resident who is now a
naturalized Japanese with the name of Debito Arudou, and two foreign
In November 2002, the Sapporo District Court dismissed the suit for
compensation against the city but ordered the bathhouse operator to pay
1 million yen each to the three plaintiffs.
In the high court, the plaintiffs argued that the city had a duty to
meet the requirements of the International Convention on the Elimination
of All Forms of Racial Discrimination, which Japan signed in December
1995, by introducing an ordinance to ban racial discrimination.
Presiding Judge Keiichi Sakamoto called the bathhouse's refusal to
admit non-Japanese ''unreasonable discrimination,'' but added,
''The convention has only general, abstract provisions recommending
appropriate measures to eliminate racial discrimination, and Otaru city
does not have any obligation to institute ordinances to ban such
According to the suit, in September 1999 Arudou, then still a U.S.
citizen, and German Olaf Karthaus visited the Yunohana Onsen bathhouse
in the port city and were refused entry because they were foreigners.
Ken Sutherland, another American, was denied admission there in December
The bathhouse had put up an English-language sign saying
''Japanese only.'' It gave as a reason that trouble with drunken
Russian sailors at similar facilities in the area had caused Japanese
customers to stay away.
Arudou filed the complaint with the court after he visited the
bathhouse again in October 2000 after becoming a naturalized Japanese
citizen. He was refused entry even after he presented his driver's
license as proof of his Japanese citizenship...
In a separate case, the Tokyo District Court on Thursday ordered a
bar in the capital's Toshima Ward to pay 1 million yen in compensation
to a naturalized Japanese born in China for refusing him entry in
February last year on the grounds that he was a foreigner.
The 41-year-old man had demanded 2.2 million yen in compensation for
mental distress from the discriminatory treatment.
High court upholds Otaru spa
ruling in racial discrimination suit
Mainichi Shimbun, Japan, Sept. 16, 2004
SAPPORO -- The Sapporo High Court on Thursday upheld a lower
court decision and ordered a bathhouse in Hokkaido to pay 3 million yen in compensation
to a United States-born Japanese national and two other plaintiffs for refusing them
In handing down the decision, the high court rejected an appeal
by the Otaru, Hokkaido, bathhouse, and also denied an appeal by the plaintiffs, including
Debito Arudo, 39, who sought court recognition of Otaru's
responsibility in the case. Arudo plans to appeal the ruling.
The focus of the appeal hearing was on whether the city of
Otaru bore responsibility to eliminate personal discrimination in the case.
Arudo said that the bathing facility was one used by the general
public and that the city bore the same responsibility as the national government
in protecting people's rights to use its services.
He based the argument on the International Convention on the
Elimination of All Forms of Racial Discrimination, which Japan signed in 1995 and
ratified in 1996. The convention was adopted and opened for signature and ratification
at a United Nations general assembly in 1965.
The city had claimed that the convention went no further than
the nation's basic obligations and that the city had wide jurisdiction over what
types of policies were taken.
The facility in question refused entry to all foreigners in
August 1998, saying the bathing manners of Russian sailors was bad. It tried to defend
its actions during the case, saying, "Refusing foreigners did not exceed the
limit of what was accepted socially."
On several occasions since September 1999, Arudo and his friends
visited the bathhouse but were refused entry because they were not "Japanese."
Even after he was granted Japanese nationality, the manager
of the bathhouse remained adamant, saying, "From a Japanese point of view, you
are still a foreigner."
Arudo and the other two plaintiffs launched a lawsuit against
the actions of the bathhouse in Feb. 2001.
The district court ruling stated that the bathhouse had acted
with discrimination. However, it said the city had not acted illegally by failing
to take action. (Mainichi Shimbun, Japan, Sept. 16, 2004)
Japanese court dismisses lawsuit against city over bathhouse
ban on foreigners
AP/Yahoo News, Thursday September 16, 7:55 PM
An appeals court on Thursday upheld a lower court decision awarding compensation
to three men who were turned away by a public bathhouse because they were foreigners,
but dismissed their claims against the city government, a court official said.
The three men _ a German, an American and a former U.S. citizen who converted to
Japanese citizenship _ had accused the Otaru city government of failing to ensure
that businesses abide by a Japanese law prohibiting racial discrimination.
In November 2002, a district court ordered the bathhouse to pay each of the men compensation
of 1 million yen (US$9,100; euro 7,500) for discrimination, but rejected their claim
against Otaru city.
On Thursday, Sapporo High Court Justice Keiichi Sakamoto upheld the district court's
ruling, court official Taisuke Shibagaki said.
Sakamoto said Otaru city, on the northernmost main island of Hokkaido, wasn't responsible
for regulating the bathhouse, Shibagaki said.
U.S.-born Debito Arudou, who changed his name from David Aldwinckle when he took
Japanese citizenship, Olaf Karthaus from Germany, and Kenneth Lee Sutherland from
the United States had demanded 6 million yen (US$54,500; euro 44,900) in compensation
from the government and the Yunohana bathhouse.
Arudou has said he would appeal to the Supreme Court if the high court didn't side
with him against both the bathhouse and government. He could not be reached Thursday
for confirmation of his plans.
The hometowns of the three men were not immediately available. Arudou now lives in
Namporo city on Hokkaido.
Arudou and Karthaus _ activists in the Tokyo-based human rights group Issho Kikaku
_ repeatedly visited Otaru bathhouses posting "Japanese Only" signs between
1999 and 2000, hoping to raise awareness of the practice, according to a report posted
on the group's Web site.
The men found many bathhouses were refusing entry to foreigners because of the belief
that foreigners didn't know Japanese bathhouse etiquette and were scaring off Japanese
Japanese bathhouses require visitors to wash themselves before taking a dip in a
large tub filled with hot water. Splashing is frowned upon.
The concept of discrimination is little understood in Japan, where many are suspicious
of foreigners and worry that diversity will disturb the country's cultural homogeneity.
Otaru is located 830 kilometers (520 miles) northwest of Tokyo. Sapporo is also on
Hi all. Hokkaido Shinbun came out this morning with an editorial (shasetsu) in which
they finally get it.
After years of pussy-footing around the issue, saying "Why can't we just get
along? Let our hearts be barrier free!" sort of piffle (for example Doshin Shasetsu
Feb 3, 2001 <http://www.debito.org/doshinkaisetsu020301.jpg>),
they finally came round this morning--and stated the obvious and inevitable. We need
a law or racial discrimination will not be eliminated. Translating. Bests, Arudou
Debito in Sapporo
IN ORDER TO ELIMINATE DISCRIMINATION, THE TIME IS NOW FOR LAWS
Hokkaido Shinbun, Sept 17, 2004, page two
(Translated by Arudou Debito)
Yesterday's court decision is a grim reminder of how far we have to go towards eliminating
racial discrimination in Japan.
We are talking about the case of the Otaru onsen facilities which refused people
because they were foreign-born. One, an American-born Japanese citizen, took one
to court on the grounds that said refusal contravened international treaty on racial
discrimination (CERD). The Sapporo High Court just handed down a decision on their
The court ruled against the company which runs the onsen, stating "unrational
discrimination is illegal" and ordering compensation. However, the court rejected
the plaintiff's appeal against the City of Otaru. Court stated that Otaru's responsibility
in the matter did not extend to an obligation to pass an anti-discrimination ordinance.
This was about the same as the Sapporo District Court's ruling on this case two years
Having the onsen pay compensation is a no-brainer. Refusing people simply because
they look foreign is racial discrimination, none other. Some may say this is a problem
between private individuals, but the fact the court established that human rights
take priority is worthy of high praise.
But the larger issue remains a problem: What of the obligation under the CERD of
local governing bodies to eliminate discrimination through legislation?
Plaintiffs maintained in court that the City of Otaru should have made ordinances
stopping discrimination. Their failure to do so resulted in them being discriminated
The High Court yesterday refuted this by saying that the CERD only vaguely establishes
general guidelines for signatory countries to properly eliminate discrimination.
Thus, Otaru's obligation to eliminate discrimination is no more than a political
The plaintiffs could not accept this outcome. How is racial discrimination to be
eliminated? How is the government to intervene in these cases? These were not ruled
upon. This is an unfortunate development even if one is not a plaintiff.
Then again, the judiciary does have its limits. We stress that it is essential for
national and/or local governments to make legislation to eliminate racial discrimination.
The UN adopted the CERD in 1965. It took Japan 30 years to sign it. And the Japanese
government's stance has been half-hearted ever since. In a public admonition, the
UN in 2001 clearly demanded Japan adopt anti-discrimination legislation with penalties.
This delay in creating a legal framework has caused trouble nationwide, with baths
and eating/drinking establishments refusing people with "Japanese Only"
policies--no longer limited to Otaru.
Are we to assume that things are all right as is? That victims of discrimination
have to compound their burdens with long lawsuits over and over again? This offends
one's sense of social justice.
Through legislation, people must be told clearly what exactly amounts to discrimination,
thoroughly enough that it becomes common knowledge.
This requires effort on the part of the people. Yes, we will in the meantime see
the closed nature of this society, thanks to the limited contact with foreign countries
that an island society has. But we must build a society where non-Japanese can live
in this society without segregation or discrimination.
市の責任認めず 小樽入浴拒否控訴審で札幌高裁判決 会社に賠償命令 2004/09/16 14:14
毎日新聞 2004年9月15日 北海道朝刊