de facto stateless persons from

Size: px

Start display at page:

Download "de facto stateless persons from"

Delphia Darleen West
6 years ago
Views:

1 de facto stateless persons from Thailand in Japanese society Chie KOMAI Fumie AZUKIZAWA 1 1 Ms.Chie Komai and Ms.Fumie Azukizawa are attorneys of Yokohama Bar Association in Japan.

2 1. Preface (1) Statelessness in Japan In Japan, you see several types of stateless persons reside though total number of them is not clear. For instance, there are stateless children whose parents came to Japan from states such as Brazil, which in principle grants or granted nationality only to people born on their own territory ( jus soli ). As Japanese nationality law in principle grants Japanese nationality by descent only ( jus sanguinis ), that is why sometimes foreign parents in Japan have made their children stateless, failing to make application for their children s nationality to their own states Consulate or so. There are babies whose non-japanese mothers nationality is unclear and whose fathers information is totally unknown. One of the babies won at the Supreme Court case and successfully got Japanese nationality in 1995 after a long time of court proceedings. However, still similar stateless babies remain in Japanese society. Furthermore, there are people who came to or were forced to take to Japan from Korean Peninsula, China and Taiwan until the end of the Second World War. Some of them and their offspring chose to be stateless when their countries of origin were divided. Their decision often accompanies much pain and pride at the same time, though. (2) Unknown stateless people in Japanese society In this paper we would like to introduce another category of stateless persons whose existence has been totally unknown even in Japanese society. They are people who illegally entered Japan from Thailand around Though they were born and brought up in Thailand, they have no Thai nationality as their parents are Indochinese refugees who came from Vietnam or Laos about years ago mainly in order to get

3 out of disasters of the first Indochinese War ( ). The offspring of Indochinese refugees entered Japan showing Thai passports with false names on them. Because they broke Japanese Immigration Law as such, Japanese Immigration Bureau tries to arrest and detain them for forceful deportation. However, even after being detained by Japanese Immigration Bureau, they have no chance to be deported towards Thailand and any other countries as they have no states to which belong at least in point of fact. As they have no Thai nationality, Thai government refuses them to accept. Vietnam and other Indochinese states cannot accept them as such governments have no documents which prove the persons ties with the states. No reports of birth, no names on family register, no personal information on any public documents. In Japan, they are labeled as illegal immigrants who should be detained and deported. Therefore, they could be called people in despair standing on the border, with no destination. However, they still have right to survive and enjoy their own life somewhere on this planet. That is why we, two attorneys in Japan claim that they need to be given the special permission for residence by Japanese government (Japanese Minister of Justice). Actually we do just grasp only about twenty of them at present and do not know how many of them in fact stay in Japan. There are no statistics on them. Most of them seem to lie in hiding at the bottom of Japanese society without any prospect of future. 2. Their situation in Thailand Of people who illegally enter Japan, there are a certain number of persons who cannot get any protection from any states on earth as a matter of fact. They were born and brought up in Thailand. Their parents came to Thailand more than about fifty years ago to get rid of wars or internal conflicts in Indochina.

4 In Thailand, which does not sign the 1951 Refugee Convention, Indochinese Refugees (strictly speaking, who are not convention refugees, though) and their children were forced to live within the limited areas for refugees. Then, they had been under the harsh environment lacking some of basic human rights. For instance, they could not travel to other provinces without an official permission, were not given enough opportunity of education and could not get permanent jobs with fair income as they were the second-rated citizen without Thai nationality. They had to work at a very low wages compared with Thai people. They always stayed poor and they had no hope to escape from such poverty and discrimination. That is why some of those refugees children decided to illegally enter Japan and work there. They just could not stand the ever-lasting poverty of themselves and their family. After their flight to Japan mainly around 1990 and the start of their new life in Japan, Thai government changed their nationality law in 1992 and decided to give Thai nationality towards such children of Indochinese refugees when they apply for Thai nationality in Thailand. However, the refugees children who illegally came to Japan and started to work in Japan have had no opportunity to go back to Thailand in order to apply for Thai nationality. In fact, most of them even failed to have information on this precious chance to get Thai nationality. Therefore they lost the best opportunity to get Thai nationality. 3. Life of stateless persons in Japan As non-thai children of Indochinese refugees were born in Thailand, they do not have any official documents on their own nationality in Thailand and other Indochinese states, which means that they could not be given passports by Thai government and other Indochinese governments. Thai government did not give them any other documents which permit them to travel abroad. That is why they had to be assisted by illegal brokers in order to enter Japan. They obtained false passports with false Thai names to deceive Japanese Passport Control.

5 After entering Japan, they got jobs and have worked without committing crimes except for violation of Japanese Immigration Law. However, they always have to fear the risk of being arrested by Japanese police or the Immigration Bureau as they have no legal status for residence and are not permitted to stay and work in Japan. Then, they just have to keep illegally working at a law wage (they could earn more money than they could in Thailand, though) without getting any welfare services even from the health insurance. Actually, most of them in vain believed that they could finally go back to their home Thailand someday by means of deportation or so. They were born and brought up in Thailand. Almost all of their family members now live in Thai society. Except for illegal stay in Japan, they have had no experience to stay at any societies but Thai society. Those facts could easily make them believe and expect that they could return to Thailand someday though they understood that they had no Thai nationality. 4. They have no countries to accept even if Japanese government hopes to deport them Even if Japanese Immigration Bureau arrests, detains and hopes to deport them, there are no countries which accept them. Firstly, at present Thai government does never accept them as they have no nationality of Thailand. When a brother of one of them, who stays in Thailand petitioned the Bureau of Thai Internal Security Affairs for his brother s re-entry to Thailand, in September 2007 the Director of the Bureau officially responded to the petition as follows: With reference to your letter requesting us to help your younger brother, who was arrested by Japanese police officers on a charge of an illegal entry, to return to the Kingdom of Thailand We have coordinated with the Ministry of Foreign Affairs to

6 assist (your younger brother). However, we would like to inform you that he has been permitted to stay in Thailand temporarily and (your younger brother) has left the Kingdom of Thailand without permission and without valid passport, therefore, the permission to stay in the Kingdom temporarily has ended under the Section 39 of Immigration Act, B.E Thai Consulate at Osaka, Japan just admitted that they could enter Thailand again and see their family members if they could get legal status of residence and re-entry permit from Japanese government in addition. Secondly, some might say that Vietnamese government or Lao government could accept them as their parents are known as Indochinese Refugees who are supposed to have been born in such countries. However, such idea is neither realistic nor humanitarian one. It could be true that, their parents might have been born in Indochinese countries such as Vietnam and Laos, whose laws on nationality adopt jus sanguinis in principle. However, their parents escaped from battlefields in Vietnam or Laos about fifty years ago in extreme confusion of wartime. Then so many Indochinese refugees already passed away in Thailand, mostly without confessing much information on their own birthplaces to their children born in Thailand. That is why it becomes tremendously difficult for the refugees children to find out their parents footsteps (including official documents) outside Thailand. In addition, (needless to say,) both in Vietnam and Laos, you can find neither official nor unofficial records/documents on birth and existence of the refugees children in Thailand. Therefore, it is almost perfectly unrealistic and impossible to expect that either Vietnamese or Lao government admits the refugees children could be its own nationals. On this account, either Vietnamese

7 government or Lao government does never accept the refugees children when Japanese Immigration Bureau might try to deport them. In fact, Vietnamese Embassy at Tokyo refused such acceptance when it responded to our inquiry. It stated that Vietnamese government did not accept deportation of people who did not have any certificates of birth or other official documents issued by Vietnamese government. 5. Analysis from legal point of view (1) They are de facto stateless persons who need help. a. They might not be de jure stateless persons It might be true that their parents are Vietnamese or Lao. Their parents abandoned their home countries fifty or more years ago because of war. As Vietnamese or Lao law on nationality adopts jus sanguinis principle, children of Indochinese refugees, who were born in Thailand, could be logically regarded as Vietnamese or Lao. That is, they could not be regarded as de jure stateless persons, namely, persons who are not considered as nationals by any State under the operation of its law (art. 1 of the 1954 Convention Relating to the Status of Stateless Persons). b. Their situation is too similar to that of de jure stateless persons. However, their situations are still too similar to those of de jure stateless persons. That is, for most of the Vietnamese or Lao refugees children, it is often too difficult to prove that their ties to Vietnam or Laos after more than fifty years of their parents flight. Many official records were scrapped or lost during wartime or after-war terms. Even if there sill exist such public records, it is also difficult to find out them as many Indochinese refugees already passed away without telling much on their roots in detail to their children. That is why the children cannot find out the evidence of their true nationality

8 today even if their parents records still might exist somewhere in Vietnam or Laos. Without such official records of their parents, the children have no measures to prove that they are Vietnamese or Lao. Of course there are no certificates of the children s birth in Vietnamese or Lao public offices, which show their nationality. Therefore, we should conclude that their situations are tremendously close to those of de jure stateless persons. c. They are de facto stateless persons. Even if some of the refugees children could be logically called Vietnamese or Lao, they have no countries on earth to accept them in time of deportation. At present, Vietnamese Embassy clearly refused to allow the entry of the refugees children as they did neither possess Vietnamese passports nor Vietnamese official certificates of their own or their parents birth. Therefore they could be called de facto stateless persons who have no effective nationality and do not enjoy national protection, [UNHCR (2005), Nationality and Statelessness: a Handbook for Parliamentarians, p11], who might have a nationality according to the law, though. However, we do not assert that Vietnamese or Lao government should accept them to solve their de facto statelessness. The fact is still more complicated. Even if Vietnamese or Lao government might permit their admission, they should never be deported to such countries where they have neither visited nor have no links, from viewpoint of humanity. They have no information and measures to survive in Vietnam or Laos. Even though their parents might be born there, the parents escaped from their home country more than about fifty years ago. For the refugees children, Vietnam or Laos is perfectly unknown places without any kinds of bonds. No family, different cultures, different languages and different society from Thai ones. No wonder that no refugee s children hope to deport to such totally strange

9 society. If Japanese government direly executes such harsh deportation, it must be called inhumane and cruel treatment. (3) Special Permission for Residence should be given by Japanese government to such de facto stateless persons in Japan. At present, once they are arrested and detained by Japanese Immigration Bureau, months or years easily passed before they could be temporally released. During the terms of the Immigration Bureau s most slowly understanding that each of them has nowhere to be deported, their valuable time of life has been just wasted, being detained in the institution of the Immigration Bureau. In addition, even if they could be temporally released from the institution, they are still prohibited from working, which means, they have to keep breaking Japanese laws in order to work for survival. That is why we, two attorneys claim that Japanese Minister of Justice should immediately give them the Special Permission for Residence (SPR). Only by getting such lawful status of residence in Japan, they could make their life humane one. Only with such status, they can lawfully work at proper wage, get services of the health insurance, and bring up their children in the way as they hope. With such status, they do not need to feel worried about the possibility of arrest and detention. According to Japanese Immigration Law, giving such SPR is within discretion of the Minister of Justice and there are no clear criteria of such discretion. Each application for SPR is judged case by case, taking account of factors such as reasons of the application, the applicant s conduct and living conditions in Japan, situation of the applicant s family members and need for humanitarian consideration. For instance, a mother who brings up an unmarried minor child whose father is Japanese tends to get SPR. There are no clear criteria, though.

10 However, such discretion of the Minister of Justice is not almighty at all. The Supreme Court of Japan and other lower courts in Japan admit that such decisions of the Minister should be evaluated unlawful if the Minister s decisions clearly lack validity from viewpoint of social common sense. Without SPR, de facto stateless persons keep deprived of fundamental human rights including right to work (Article 23 of UDHR), right to a standard of living adequate for the health and well-being including medical care (Article 25 of UDHR) and right to freedom of movement and residence (Article 13 of UDHR) and there seems to be no prospect of getting protection of such rights from any governments on earth. No one should be kept out of protection of fundamental human rights forever. The decisions to ignore their long-lasting misery clearly can never have the slightest validity from any viewpoints of social common sense. Therefore the Minister s judgment to refuse their application for SPR must be evaluated unlawful. 6. Conclusion --- seeking long-term solution Obviously for the de facto stateless persons the Minister of Justice should give SPR in order to protect their human rights to stay somewhere on earth in peace. However, giving SPR is not enough to protect their human rights. Each SPR has a limited term of validity and could suddenly be taken away or refused to be renewed. Therefore even with SPR, their life still remains unstable. Since their birth without any effective nationalities, the de facto stateless persons born and brought up in Thailand have been deprived of right to education (Article 26), right to work (Article 23), right to freedom of movement and residence (Article 13), all declared in the Universal Declaration of Human Rights (UDHR).

11 Article 15 of the UDHR states: Everyone has the right to nationality. This right is founded on the existence of a genuine and effective link between an individual and a state. [UNHCR (2005), Nationality and Statelessness: a Handbook for Parliamentarians, p9] In order to give long-term solution to this de facto statelessness still unknown even in Japanese society, immediate international cooperation is indispensable. The UNHCR whose mandate includes dealing with problems of statelessness should cooperate with Japanese government and Thai government, helping the stateless persons to get SPR from Japanese government as a short-term solution and, to get Thai nationality as a long-term solution. No one will deny that they are also entitled to enjoy the human rights stipulated in the International Human Rights treaties such as the ICCPR. However, the difficulties stateless persons have been facing in Japan and Thailand tell us that the international legal framework is far from enough to protect them. Compared to the problems of refugees, international society has not address those of stateless persons. We do hope that, through this paper, international society acknowledges their serious situation and start to explore ways to help them.

People s Republic of China

Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights Compilation Report - Universal Periodic Review: People s Republic of China I. BACKGROUND