Immigration Law and Policy of Japan in the Age of East Asian Community-Building

• Author: Yoshiaki Sato
• Position: Professor of Law, Seikei University, Japan
• Pages: 293-305

This paper was presented at the East Asian Legal Studies Lunchtime Talk held at Harvard Law School on March 22, 2010. The author is grateful to Keisuke Mark Abe, Young Hill Liew and Mark Ramseyer for their valuable comments.

Yoshiaki Sato. Professor of Law, Seikei University, Japan; Intellectual Member, Council on East Asian Community. LL.B., LL.M., Ph.D. (Tokyo). The author may be contacted at: sato@law.seikei.ac.jp / Address: Faculty of Law, Seikei University, 3-3-1 Kichijoji-Kitamachi, Musashino, Tokyo, 180-8633, Japan.

Page 293

I Introduction

Japanese immigration law has been frequently amended since 2000. The Immigration Control and Refugee Recognition Act¹ was revised in 2001, 2004, 2005, 2006 and 2009. The overall trend has been providing immigrants with greater access to the Japanese labor market. The Tourism Nation Promotion Basic Plan² and the New Growth StrategyPage 294 (Basic Policy)³ enumerated various measures to increase visitors to Japan. For example, the latter declared an annual target of 25,000,000 visitors‐tourists as well as immigrants, to Japan by 2020,⁴ from 7,711,828 in 2008.⁵ In particular, the Japanese government has attempted to increase the number of ‘students’ to 300,000 by 2020.⁶ In 2008, 138,514 college students, including undergraduate and graduate, and 41,313 pre-college students, vocational and language students, stayed in Japan.⁷ Additionally, Japan removed a ban on Chinese group-tours in 2000 and individual-tour of Chinese in 2009. Furthermore, Japan is planning to relax the annual income requirement with regard to Chinese tourist visas, which is 250,000 Chinese Yuan.

The amendments were prompted by the needs to cope with globalization and the regionalization of East Asia. For example, the 2005 amendment was prepared for the ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime.⁸ The amended Article 5, paragraph 1, item 7-2 of the Immigration Control Act stipulates that “a person who has committed trafficking in person shall be denied entry to Japan.”⁹ “Trafficking in persons” is not specifically defined in any Japanese statute. Japanese courts refer the definition by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, a ratified international agreement. Article 3, paragraph 1 of the abovementioned Protocol defines “trafficking in persons”Page 295 as “the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”¹⁰ Exploitation includes “forced labor or services, slavery or practices similar to slavery, servitude.”¹¹ Another amendment promulgated in 2006 aimed at fortifying the country’s defenses against terrorists.

The most recent amendments, which came into force on July 1, 2010, is to prevent abuses of the Industrial Training and the Technical Internship Program. The Industrial Training and the Technical Internship Program of Japan is the largest scheme in the world for an individual country to assist capacity building of people in the neighboring countries.¹² The Industrial Training Program originated in the 1960’s when the government permitted some companies to invite employees of their foreign subsidiaries to train for up to one year at the parent company in Japan. In 1993, the government allowed for intra-industrial associations of small or middle-sized companies to arrange the interns for host companies and added the Technical Internship Program, which enabled the trainees to continue learning two more years.

These flexible rules have naturally led to an increase in the number of trainees and interns. In 2008, 101,879 trainees and about 105,000 interns were residing in Japan.¹³ This figure is almost the same as that of the all employment-based residents (excluding diplomats and government officials)¹⁴ and students. More than 18,514 companies accepted trainees in 2009.¹⁵ The overwhelming majority came from East Asian nations, nearly 80 percent of Chinese nationals.¹⁶

The Industrial Training Program has contributed to the development of human resources, as well as quality control and production management in participatingPage 296 countries.¹⁷ However, serious abuses have been reported. For example, the International Covenant on Civil and Political Rights (“ICCPR”) Human Rights Committee expressed concern over the exploitation and exclusion of trainees from the protection of domestic labor and social security laws.¹⁸ The Committee recommended that the Japanese government consider replacing the current Industrial Training Program with a new scheme that adequately protects the rights of trainees and interns and focuses on capacity building rather than recruiting low-cost labor.¹⁹ The Trafficking in Persons Report of 2010 published by the U.S. Department of State also found mistreatment of foreign workers, including fraudulent terms of employment, restrictions on movement, withholding of salary payments and debt bondage, [and] [t]rainees sometimes had their travel documents taken from them and their movement controlled to prevent escape.²⁰ Against these international criticisms, the Japanese government sanctioned revisions in 2009. In addition, because most interns are coming from East Asia, preparation for the integration of East Asia is another reason to amend the program.

Therefore, Japanese lawmakers should recognize the regional impact and implications of legislation than ever before. This paper focuses on the interaction between Japanese law and international law, which have traditionally been regarded as separate and distinctive systems. Section 2 overviews the recent developments that have taken place in the areas of community-building in East Asia. Finally, in section 3, the latest reform of Japanese immigration law will be considered.

II Community-Building in East Asia and Movement of Persons

The history of diplomatic talks on regional integration and community-building in EastPage 297 Asia can be understood as having three phases. The first phase was from 1997 to 1998, when East Asian countries strived to overcome the financial crisis that originated in Thailand and overwhelmed all East Asia. Prime Minister Mahathir bin Mohamad of Malaysia proposed establishing an East Asian Economic Caucus.²¹ Some nations, including Japan gave their assent to the scheme. Due to the strong opposition by the United States and the International Monetary Fund, however, this idea has never been realized. Instead, East Asian countries organized a financial dialogue leading to the Chiang Mai Initiative, a regional network of bilateral currency swap arrangements. Based on the Initiative, for the first time, the East Asian region emerged as a unit.

The second phase went from 1999 to 2002. In 1999, the Association of South-East Asian Nations (“ASEAN”) plus Three (“APT”) Summit issued a statement in order to strengthen their mutual cooperation for the first time.²² Following the suggestion of President Kim Dae Jung of Korea, the summit established a track-two group named the East Asian Vision Group (“EAVG”), composed not only of governmental officials, but also of scholars and business people. The EAVG was requested to submit a report on the means for establishing an “East Asian Community,” a regime for comprehensive cooperation.²³ Following the submission of the report by the EAVG,²⁴ a track-one group, namely an intergovernmental group named the East Asian Study Group (“EASG”), examined the report of the EAVG and assembled its own report.²⁵ These two reports were published in 2001 and 2002, respectively. They recommended various short-term and long-term measures, including “a comprehensive human resources development program.”²⁶ Thereafter, the APT countries implemented these recommendations one by one.

Japan took various actions pursuant to the recommendations in the reports. For example, the Council on East Asian Community (“CEAC”) was inaugurated in 2004 as a platform of representatives of the Diet, governmental agencies, business corporations and academe. CEAC was established to serve as a country coordinator for the Network of East Asian Think-tanks (“NEAT”), a platform for track-two diplomacy.²⁷ NEAT wasPage 298 launched in 2003 by the initiative of China in accordance with the suggestion in these reports. It organizes several working groups which are expected to prepare reports on concrete measures to be taken for implementing the reports of EAVG and EASG. For instance, a Working Group on an East Asian Cooperative Framework for Migrant Labor, sponsored by Malaysia which is one of the large migrant worker-sending countries.²⁸ The Working Group published a report on December 7, 2006.²⁹ Besides, Japanese scholars launched an international and interdisciplinary research project on East Asian Community. This research project, sponsored by the Institute of Social Sciences at the University of Tokyo, was completed in 2007 with a publication of a draft Charter of the East Asian Community.³⁰ Article 19 of the draft Charter stipulates that, in paragraph 1, the Member States shall “reduce barriers to the free movement of nationals of the Member States who are carrying out trade in services within the Community,” and, in paragraph 2, “promote the free movement of tourists, students and other short-term visitors within the Community.” The draft Charter continues to obligate the Member States to “cooperate to deal with illegal visitors...