International Human Rights Norms in Japan

Transcription

1 International Human Rights Norms in Japan Petrice R. Flowers Human Rights Quarterly, Volume 38, Number 1, February 2016, pp (Article) Published by Johns Hopkins University Press DOI: For additional information about this article Accessed 24 Feb :14 GMT

2 HUMAN RIGHTS QUARTERLY International Human Rights Norms in Japan Petrice R. Flowers* Abstract Studies of state compliance with international human rights norms and law often focus on explaining variation in compliance across two or more states. This article addresses variation in compliance within one state Japan. Studying two different issues in one country means that instead of asking why do states comply with international norms, this study asks when do states comply with international norms. The article examines two cases the International Convention on the Status of Refugees and the Convention for the Elimination of All Forms of Discrimination Against Women and argues that strength of domestic advocates, the degree of conflict between international and domestic norms, and state desire for legitimacy accounts for Japan s adoption of and compliance with human rights agreements. I. Introduction The literature on international norms divides states into norm makers and norm takers. 1 In the area of human rights, Japan would not be expected to be either. Japan does not generate international human rights norms and is skeptical of the normative obligations of international human rights law. When the government does adopt international human rights norms, studies indicate that it does so cynically, with no real intent to comply. The research * Petrice R. Flowers is Associate Professor of Political Science at the University of Hawai i at Mānoa where she teaches International Relations and Japanese Politics. Flowers is the author of Refugees, Women, and Weapons: International Norm Adoption and Compliance in Japan (Stanford 2009). Her current research focuses on the emergence of the transnational refugee-advocacy network in Asia. 1. See Jeffrey T. Checkel, Norms, Institutions, and National Identity in Contemporary Europe, 43 Int l Stud. Q. 84 (1999). Human Rights Quarterly 38 (2016) by Johns Hopkins University Press

3 86 HUMAN RIGHTS QUARTERLY Vol. 38 in this article, however, finds that Japan does comply with international human rights norms to varying degrees. This article addresses variation in compliance across issue areas by analyzing the relationship between international human rights norms and domestic policy in Japan; demonstrating the power and influence of these norms on state behavior in Japan. This study situates compliance within a constructivist framework where not just behavior, but legitimation strategies, discourses, ideas, and justifications matter in assessing degrees of compliance. Thus, instead of asking why Japan complies with international norms, this article asks the following question: When does the country comply with its human rights treaty obligations? Understanding compliance is especially important for scholars concerned with social aspects of international relations, and the normative concerns that inform, shape, and constitute those relations. Research in this area has been preoccupied with explaining why states comply with international norms and international laws, while recognizing that full compliance is rarely, if ever, achieved. 2 This study focuses on human rights norms, which have been codified in international law. Compliance is defined as a process along a continuum that ranges from an adoption phase to a compliance phase. Full compliance is the exception rather than the rule. The adoption phase includes discussions and debates about whether to ratify the treaty and treaty ratification. The compliance phase begins when states take action to implement and to observe treaty obligations. This phase ends with state identification with the norms codified in the treaty. When actors cease to violate the law or feel a need to explain and to justify transgressions, a norm has been institutionalized. By conceptualizing compliance this way, it is possible to better understand how greater or lesser degrees of compliance are attained. Focusing on processes as opposed to outcomes stresses the value of what happens throughout the process before ratification. This approach is a marked contrast with Jean Grugel and Enrique Peruzzotti s study, which begins analysis after ratification. 3 They analyze the implementation of the Convention on the Rights of the Child (CRC) in three countries Ecuador, Chile, and Argentina to understand how domestic actors and domestic politics influence implementation. 4 The authors argue that ratification of 2. For more on compliance, see Oona Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L. J. 1870, 1938 (2002); H.L.A. Hart, The Concept of Law 212 (1961); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2600 (1997); Abram Chayes & Antonia Handler Chayes, On Compliance, 47 Int l Org. 175, 176 (1993); Jeffrey Checkel, Why Comply? Social Learning and European Identity Change, 55 Int l Org. 553, 553 (2001). 3. Jean Grugel & Enrique Peruzzotti, The Domestic Politics of International Human Rights Law: Impact of the Convention on the Rights of the Child in Ecuador, Chile, and Argentina, 34 Hum. Rts. Q. 178, 178 (2012). 4. Id. at 179.

4 2016 International Human Rights Norms in Japan 87 human rights treaties trigger the politics of compliance, a process at the domestic level involving interpretation of the meaning of obligations codified in the treaties and how these should be translated into domestic law, policy, and practice. 5 How these human rights politics play out depends on the domestic context. The literature on international norms identifies three factors as essential to compliance: legitimacy, degree of conflict between domestic and international norms, and strength of domestic advocates. 6 This article brings these three factors together in a single study and demonstrates the importance of their interaction. The analysis focuses on two cases: The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Status of Refugees (Refugee Convention). 7 States commitments to international agreements are based on, and reflect, mutually constituted state interests and identities. State commitment does not, however, guarantee compliance, since treaty making is influenced by the structure of the international system. Thus, the process is subject to the power relations, social meaning, and values that constitute that system. 8 Furthermore, because state interests may change from the treaty negotiation stage to the compliance stage, a state s lack of compliance is not necessarily just the result of an initial decision to ratify an agreement only for instrumental reasons. Even in states, such as Japan, where treaty obligations become part of national law contributing to fairly high levels of implementation through the revision of old laws or creation of new ones, it is not sufficient for securing equally high levels of compliance. Since compliance requires conformity or identity between an actor s behavior and a specified rule Id. at Andrew P. Cortell & James W. Davis, Jr., Understanding the Domestic Impact of International Norms: A Research Agenda, 2 Int l Stud. Rev. 65, 73 (2000); Jeffrey T. Checkel, Norms, Institutions, and National Identity in Contemporary Europe, 43 Int l Stud. Q. 83, 88 (1999); Jeffrey T. Checkel, International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide, 3 Eur. J. Int l Relations 473, 476 (1997); Matthew Evangelista, The Paradox of State Strength: Transnational Relations, Domestic Structures, and Security Policy in Russia and the Soviet Union, 49 Int l Org. 1, 5 (1995); Matthew Evangelista, Unarmed Forces: The Transnational Movement to End the Cold War 384 (1998); Isao Miyaoka, Legitimacy in International Society: Japan s Reaction to Global Wildlife Preservation 11 (2004). 7. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (entered into force 3 Sept. 1981) [hereinafter CEDAW]; Convention Relating to the Status of Refugees, adopted 28 July 1951, U.N. Doc. A/CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force 22 Apr. 1954) [hereinafter Refugee Convention]. 8. Chayes & Chayes, supra note 2, at 183; Martha Finnemore, Defining National Interests in International Society 2 3 (1996). 9. Kal Raustiala & Anne-Marie Slaughter, International Law, International Relations, and Compliance, in Handbook of International Relations 538, 539 (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds., 2002).

5 88 HUMAN RIGHTS QUARTERLY Vol. 38 Compliance involves identification, and so to achieve compliance with contested norms, state identity must change. Scholars of international law agree that repeated interactions between transnational actors, and the power of normative discourse which increases throughout these interactions, are important in state compliance. 10 Harold Koh s transnational legal processes model outlines a constitutive process whereby states interpret global norms and internalize them into domestic law. 11 The result of this process is the reconstruction of national interests and national identities. 12 This model depends on social learning to change state behavior. 13 This three-step process of interaction, interpretation, and internalization is how international law acquires its stickiness... nationstates acquire their identity, and... nations come to obey international law out of perceived self-interest. 14 Koh concludes that repeated participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of the emerging international society 15 where compliance is based broadly on notions of both identity-formation and international society. 16 Thus, compliance is the result of social relations that include state identity formation in relation to international position. This article suggests that state legitimacy forms in relation to international position. International legitimacy calls into question the reasons that states ratify international human rights laws and adhere to related norms. Some studies recognize that states seek international legitimacy. However, the idea that identity and legitimacy are important motivators, sometimes as important as economic interests, is not explicitly investigated. 17 At the root of international legitimacy is a sense of community, power, hierarchy, and ambition. Gains may results from international legitimacy even if these are not necessarily material benefits. The very identity of a state is at stake. State desire for legitimacy is historically contingent, context based, and intersubjective. 18 Legitimacy relies not only on relations between the state in question, other states, international organizations, and transnational civil society, but also on tense relations with one significant actor on an issue, such as human rights, which may contribute to identity shift often on other issues due to 10. Koh, supra note 2, at Id. at Id. at Id. at Id. at Id. 16. Id. at Thomas Risse & Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practices: Introduction, in The Power of Human Rights: International Norms and Domestic Change 38 (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999). 18. Miyaoka, supra note 6, at

6 2016 International Human Rights Norms in Japan 89 the state seeking legitimacy. Thus, a state s desire for legitimacy involves its relations with others and how those others view it. Many studies of legitimacy and compliance focus on the legitimacy of norms, rules, and institutions. 19 Therefore, understanding the legitimacy of a particular institution the Japanese state is important. Legitimacy of norms partly grows out of the institutions including states from which norms emerge. A dynamic relationship exists between institutions and domestic norms. Shaping state identity, which is beneficial for increasing international legitimacy, may also create conflict with the domestic norms. In the nineteenth and twentieth centuries, international legitimacy was closely tied to the standard of civilization, which served as the foundation of modern international society. 20 The standard of civilization reflected the norms of European international order that were rooted in Christianity and set the terms for non-european states entering international society. 21 Shogo Suzuki s analysis of Japan s socialization into European international society at the end of the nineteenth century challenges the view that collective identity norms and cooperation, engendered by mutual respect for sovereign independence, provided greater order at the end of the nineteenth century. Focusing on the connection between the rise of Japanese imperialism and the state s socialization into the European international order, 22 Suzuki argues that studies of international society ignore the coercive aspects of this order. Coerciveness created differences and perpetuated fear based on perceived differences, provided justification for imperial projects, and colonized the uncivilized who existed outside of the international order. 23 He further argues there were different and multiple interpretations that non-european states may have had of the European standard of civilization. 24 Japan s interpretation of European international society called for the state to pursue cooperative policies with civilized European states and coercive policies with uncivilized states, including Japan s Asian neighbors. 25 Standards of behavior that help constitute state identity and play a role in states gaining and maintaining legitimacy are still present in today s discourses of civilization. 26 These discourses set the parameters for legitimizing states and state actions. Japan became accepted as a civilized country partly 19. See generally Thomas M. Franck, Legitimacy in the International System, 82 Am. J. Int l L. 705 (1988); Ian Hurd, Legitimacy and Authority in International Politics, 53 Int l Org. 379 (1999); Miyaoka, supra note Gerrit W. Gong, The Standard of Civilization in International Society 4 (1984). 21. Shogo Suzuki, Japan s Socialization into Janus-Faced European International Society, 11 Eur. J. Int L Relations 137, 138 (2005). 22. Id. 23. Id. at Id. 25. Id. at 150, Nina Tannenwald, The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-use, 53 Int l Org. 433, 437 (1999).

7 90 HUMAN RIGHTS QUARTERLY Vol. 38 because of its defeat of Russia in the Russo-Japanese War ( ). 27 According to Gerrit Gong, even Japan, which consciously and conscientiously made fulfilling the standard of civilization a national goal, found the path to accreditation as a civilized power long and difficult. 28 Western states did not treat Japan as civilized even after it was considered to be so. 29 Bahar Rumelili analyzes Greece and Turkey as liminal states in relation to Europe. She suggests that Greece and Turkey are both Self and Other in relation to the rest of Europe. Her characterization of Self and Other offers new insights about Japan s precarious position in both nineteenth century European world order and today s international system. 30 Today, the discourses and practices that are necessary to differentiate civilized from uncivilized states including adherence to international law also serve to sustain conflict with especially significant consequences for a liminal state such as Japan. Based on its history, Japan s contemporary identity as both inside and outside of the Western collective identity makes Japanese officials particularly sensitive. Japan s legitimacy, identity, and identity-based pressures of today s international community concern officials. Two other factors emerge as important explanations for norm adoption in the constructivist literature: (1) the degree of conflict between international and domestic norms and (2) the strength of domestic advocates. Although these factors are present in most cases of norm adoption and compliance, the way they interact has not been widely studied. 31 Instead, each element has been isolated and analyzed independently. Isolating variables is insufficient to understanding the relationship between international and domestic politics, and how that may facilitate or hinder compliance. Furthermore, studies of norm adoption and norm compliance proceed on parallel tracks. Therefore, insights gained from studying adoption are too often lost when compliance is the subject of analysis. This article presents research on how domestic advocacy, as well as conflict between domestic and international norms, interacts with legitimacy. This advances understanding of the social aspects of state behavior, including the role of identity, in variation to norm compliance. Amy Gurowitz demonstrates the significant role that state identity plays in norm diffusion. 32 This article builds on this insight by analyzing how identity interacts with conflict between international and domestic norms, and strength of domestic advocates in norm compliance. 27. Gong, supra note 20, at Id. at Id. at Petrice R. Flowers, Refugees, Women, and Weapons: International Norm Adoption and Compliance in Japan 27 (2009). 31. Id. at Amy Gurowitz, The Diffusion of International Norms: Why Identity Matters 43 Int l pol 305 (2006).

8 2016 International Human Rights Norms in Japan 91 II. Research Design and Methodology This study examines two cases refugee policy and women s employment where international treaties were ratified despite directly conflicting with Japanese domestic norms. These two cases vary in terms of the relative weight of three explanatory variables investigated: the degree of conflict with domestic norms, the strength of the domestic interests associated with each of the issues, and the extent to which the state believed adopting the norms would increase its legitimacy. This variation helps to answer which norms matter, how they matter, and to what extent they matter. Considering two issues in the same domestic context is a key contribution of this study to understand when states comply with international human rights norms and laws. By accounting for varying levels of compliance, this approach also helps fill in some of the blind spots in constructivist theory. Thus, adding another dimension to the research of the local effects of international human rights norms. 33 The two treaties studied here offer challenges to what it means to be Japanese and what appropriate roles are for women in society. 34 Although Japan ratified the Refugee Convention in 1981, 35 its domestic laws and practices were often in conflict with the letter of the treaty before and after ratification. Access to social insurance programs, such as the national pension system and health insurance, was dependent upon citizenship. 36 Since parties to the Convention were required to extend the same social welfare benefits that their citizens enjoyed to refugees, the citizenship requirement had to be abolished. 37 Abolishing the requirement, however, made Japan s invisible minorities suddenly visible, and forced the government to figure out how to incorporate them into the system. Although this change required great expense, exclusivity in other areas remained. The most obvious example of legal codification of norms meant to police the boundaries of Japaneseness, which is citizenship based on the father s bloodline. Where non-japanese were allowed to naturalize, they had to relinquish their culture and take a Japanese name. 38 Thus, domestic norms that perpetuate the myth of Japan as a homogeneous nation prevent a shift in state identity, which is necessary to achieve high levels of compliance. 33. Ethan Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society, 44 Int l Org. 479 (1990); Peter J. Katzenstein, Cultural Norms & National Security: Police and Military in Postwar Japan 996 (1998); Checkel, Why Comply?, supra note 2, at ; David Leheny, Think Global, Fear Local: Sex, Violence, and Anxiety in Contemporary Japan 11 (2006); Jennifer Chan-Tiberghien, Gender and Human Rights Politics in Japan 17 (2004). 34. CEDAW, art. 18, supra note Refugee Convention, supra note Flowers, supra note 30, at Id. 38. Id. at 58.

9 92 HUMAN RIGHTS QUARTERLY Vol. 38 In Japan, the ideal men at work, women in the home is a deeply embedded domestic norm. 39 The conflict between the social and cultural importance of women s roles as mothers and homemakers in Japan, and the rejection of such gender-based roles in CEDAW 40 would lead to the expectation that CEDAW would have a minimal impact on domestic policies in Japan. The domestic norms at stake with this issue are the conservative cultural beliefs and attitudes about the appropriate role of women, and their contribution to national and familial stability. Complying with CEDAW threatened the social order, which is based on men as wage earners and women as homemakers. Strong, proactive, and well-connected domestic advocates, however, secured ratification of the treaty and have consistently pushed for higher levels of compliance. 41 A. Operationalizing Degree of Conflict To determine the degree of conflict, I analyzed the text of the relevant international and national laws before adoption to determine if the latter required substantial revision to implement international law. In Japan, international agreements trump domestic law. The entire body of relevant domestic law reforms before Diet (Japan s Parliament) ratifies a human rights treaty. 42 Therefore, a high degree of conflict results when substantial change to existing law, as well as creation of new law is necessary, as with adoption of the Refugee Convention. Newspaper editorials and opinion pages indicate the intensity of public discourse and debate around each of the three issues. A high degree of conflict exists when: an international norm contradicts established domestic norms, as reflected in values of the broader population or dominant discourses. A high degree of conflict is characterized by an absence of law, or conflicting laws on the books, resistance to creating or changing relevant laws, or a history of legal battles around the issue. A medium degree of conflict exists when: there may not be any laws on the books, but where the issue is not domestically contested, and no strong domestic norms or dominant discourses have been established. Finally, an issue has a low degree of conflict when: international and domestic norms reflect shared values. 39. Id. at CEDAW, art. 5, supra note Christof Heyns & Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level, 23 Hum. Rts Q. 483, (2001). 42. M. Christina Luera, No More Waiting for Revolution: Japan Should Take Positive Action to Implement the Convention on the Elimination of All Forms of Discrimination Against Women, 13 Pac. Rim L. & Pol y J. 610, 618 (2004); Heyns & Viljoen, supra note 41, at 491, 497, 501.

10 2016 International Human Rights Norms in Japan 93 B. Operationalizing Strength of Domestic Actors To determine the strength of domestic actors, I interviewed domestic advocates related to each issue and conducted archival research on their activities, evaluated their ties to the state, and assessed their political mobilization. In the case of the Women s Convention, interviews and analysis of group publications reveal that activists access to powerful state actors and transnational networks were essential for their success. Strength of domestic advocates is high when there are highly organized groups working on the specific issue. Additionally, when these groups have connections to powerful actors that allow access to, or influence over, the policymaking process, and when there is high profile, public advocacy before, during, and after treaty ratification. Domestic advocates are moderately strong when advocates are organized around related issues, but are not coalesced on the specific issue that the international treaty addresses. In this case, they lack a broad coalition, but may enjoy pockets of strong supporters, including politicians and government officials. They lobby these officials behind the scenes. A complete lack of organized advocates does not preclude existence of some local organizations dealing directly with relevant service provisions, but it does indicate low strength of domestic advocates. C. Operationalizing State s Desire for Legitimacy I establish the state s desire for legitimacy by analyzing Diet committee records of the debates surrounding adoption of the treaties, tracing the substance of the arguments for and against ratification. For each issue, I examined three years of committee debates the year before, the year of, and the year after ratification. Arguments for ratifying the treaties were identity based and related specifically to Japan s role in the international community. 43 Dissenting voices articulated the domestic norms at stake and confirmed the level of conflict between international and domestic norms. Legitimacy is intersubjective and how states that comprise the community engaged on a particular issue perceive Japan, influences Japan s identity construction. A high state desire for legitimacy results from overt pressure or intense lobbying from powerful states to conform to dominant discourses. Dominant discourses and values reflected in the issue are framed as universal or fundamental rights issues by states, international organizations, and international nongovernmental organizations (NGOs). 44 In such cases, a significant number of major countries have adopted the treaty. 45 On the other hand, when the 43. Flowers, supra note 30, at Id. at Id. at

11 94 HUMAN RIGHTS QUARTERLY Vol. 38 issue is more contested within the international community, and does not deal with Universal Declaration of Human Rights issues that have become significant in defining state identity since WWII, there is a medium-level of state desire for legitimacy. In such cases, there may be significant pressure from the United States to conform. However, the US position does not reflect that of the larger international community, or there may be pressure from core states concerned with the issue, or lobbying by international NGOs and transnational networks. Finally, low state desire for legitimacy results from a situation where there is pressure to conform from a minority of less-powerful materially and ideationally international actors and where the issue itself may only be of concern to a minority constituency in the international community. The states involved in this case may not be the ones that have the most influence on a particular issue. III. Refugee Policy: Protecting the NATIon Despite a lack of material international pressures, an absence of domestic advocates pressing the government to allow refugees to resettle in Japan, and a high degree of conflict between the international and domestic norms on this issue, Japan ratified the Refugee Convention in It also reformed legislation to be more in line with international norms. 46 Although the high degree of conflict between international and domestic norms that characterized the refugee issue (and later, the issue of women s employment) challenged efforts at ratification, it did not prevent them. In this case, the desire for international legitimacy trumped internal conflict. Japan adopted the Refugee Convention based on the state s quest for legitimacy. 47 Analysis of Diet records reveal that state actors believed that, by reshaping Japan s identity to make it more appropriate for a world economic power and developed country, international legitimacy would follow. 48 Adopting the Refugee Convention was seen as appropriate action for such a state. 49 Although desire for international legitimacy did trump internal conflict early in the process, conflict proved more difficult to overcome later in the compliance phase. Domestic advocates are particularly influential later in the compliance phase. It was not until nearly two decades later that greater compliance and state identification with the Refugee Convention became a possibility due to the growing number of domestic advocates. These refugee advocates pressured government officials to create a comprehensive refugee 46. Id. at Id. 48. Id. at Id.

12 2016 International Human Rights Norms in Japan 95 policy in Japan. 50 Existing research addressing the question of why Japan adopted the Refugee Convention focuses on explanations that include both an international and domestic aspect. 51 Privileging one of these over the other, 52 not recognizing or fully exploring the connection between the two, 53 or failing to examine the roots of the domestic and international processes at work in this case 54 are major shortcomings. Some authors suggest foreign pressure (gaiatsu) may have been the key to Japan s adopting the Convention. 55 However, reliance on gaiatsu to explain Japan s behavior does not adequately account for why Japan responds to foreign pressure. Nor does gaiatsu explain why Japan is concerned with projecting a positive international image, and does little to advance understandings of the social aspects of world politics that affect state behavior. Foreign pressure, as it is narrowly conceived in the gaiatsu literature from which these explanations draw, offers an incomplete explanation for why Japan adopted the Refugee Convention. I offer an alternative argument that focuses on how and why foreign pressure is so effective in Japan by taking into account nonmaterial concerns of identity and legitimacy. Exploring identity-based external pressure helps move toward a more complete understanding of the role identity plays in shaping Japan s adoption of, and compliance with, international law. 56 The international norms codified in the Refugee Convention directly challenged Japan s view of itself as a homogeneous nation by requiring that the government accept refugees who might choose to stay in Japan. It also forced the Japanese government to change existing laws that discriminated against non-japanese. These new laws would have the secondary effect of highlighting the existence of Japan s Korean (and Taiwanese) minorities. Prior to signing the Convention, Japan still had not extended social security benefits, such as pensions and healthcare, to the country s permanent residents. 57 Japan had a difficult time integrating refugees with its permanent residents, since Japan had codified discrimination into laws that prevented nonresidents from holding civil service jobs. Thus, it was difficult for Japan to accept the parameters laid out in the Refugee Convention. 50. Petrice R. Flowers, Failure to Protect Refugees? Domestic Institutions, International Organizations, and Civil Society in Japan, 34 J. Japanese Stud. 333 (2008). 51. Flowers, supra note 30, at See Koichi Koizumi, Refugee Policy Formation in Japan: Developments and Implications, 5 J. Refugee Stud. 123 (1992). 53. See Crane Stephen Landis, Human Rights Violations in Japan: A Contemporary Survey, 5 D. C. L. J. Int l L. & Prac. 53 (1996). 54. See Amy Gurowitz, Mobilizing International Norms: Domestic Actors, Immigrants, and the Japanese State, 51 World Politics 413 (1999). 55. See Koizumi, supra note 52; see Landis, supra note 53; see Gurowitz, supra note See Amy Gurowitz, The Diffusion of International Norms: Why Identity Matters, 43 Int l Pol. 305 (2006), for argument on the significance of identity in norm diffusion. 57. Flowers, supra note 30, at 39.

13 96 HUMAN RIGHTS QUARTERLY Vol. 38 Japan s refugee policies reflect the view that Japan is a homogeneous nation. Preserving its identity as a homogeneous nation clearly conflicts with fulfilling the expectations of the country as a world power, and maintaining that position in the face of criticism on other fronts (e.g. unfair trading practices, etc). The idea of Japan as an ethnically homogeneous society is not to be underestimated in terms of its importance as a project of both the state and society. 58 Indeed, many Japanese including government officials credit their homogeneity as an important part of the economic miracle, and this miracle was beginning to pay off just as the numbers of non-japanese began to increase. 59 Thus, it became necessary to limit the number (and kind of foreigners) allowed into Japan while reinforcing the homogeneous national identity. 60 Furthermore, the idea of nation as family was a project of the Meiji Reformers with the aim of securing political loyalty to the Emperor and the state for the purpose of moving toward its goals of becoming an industrialized country and gaining recognition as a legitimate world power. 61 In other words, the biological basis of the nation was framed as a fundamental motivation for rapid industrialization at the end of the nineteenth century. State building in Japan rested on consolidating the nation through processes of domination and exclusion that precluded recognizing social minorities such as the burakumin and the indigenous Ainu. 62 Its exclusive national identity shapes policies regarding the acceptance of outsiders, including the extent to which they can be integrated. It was expected that in the adoption phase a high degree of conflict would pose a challenge to treaty ratification, however, in this case, the high degree of conflict was not enough to hinder ratification. It does, however, present a barrier to achieving a high level of compliance. A high level of compliance depends on achieving a state of conformity or identity between an actor s behavior and a specified rule. 63 In other words, state identity is reconstituted as state interests on a particular issue continue to change and gradually becomes more settled after adopting a new norm. There were no domestic advocates active on this issue during the adoption phase. Groups concerned with refugee issues did not emerge until after refugees began arriving in Japan. The first organizations to take action were religious groups such as Caritas Japan, that were already established and had a long-standing interest in social welfare. 64 Thus, service providers emerged but there were no advocates focused on policy change. Domestic advocates 58. For more on this, see John Lie, Multiethnic Japan 45 (2001). 59. Id. 60. Id. 61. Carol Gluck, Japan s Modern Myths: Ideology in the Late Meiji Period (1985). 62. Tessa Morris-Suzuki, Re-Inventing Japan: Time, Space, Nation 108, 192 (1998). 63. Raustiala & Slaughter, supra note Flowers, supra note 30, at 54.

14 2016 International Human Rights Norms in Japan 97 play a particularly important role during this phase. Because treaty ratification does not end the conflict between domestic and international norms, the work of domestic advocates in pushing implementation (defined as formally codifying the norms in question into domestic legislation, creation of institutions and establishing rules) to ensure compliance is essential. For instance, a state might amend laws to implement the Refugee Convention. However, if judges refuse to hear cases or do not affirm relevant laws in their decisions, the result would be a low level of compliance. Put differently, there is no identification between the actor s behavior and a specific rule. 65 On the refugee issue, domestic advocates may increase the level of compliance by supporting stronger legislation and demanding greater transparency in decision-making procedures regarding asylum applications. Advocates further contribute to state identification with the norm when they assist asylum seekers in bringing cases. These cases require decisions based on established legislation, and confirm authority of that legislation. Additionally, these cases may illustrate areas where the existing legal instruments need strengthening, and thereby, galvanize advocates to then work toward achieving that goal. Keiko Hirata notes the significance of the Indochinese refugee crisis in expanding NGOs in Japan. 66 Before the 1980s, most NGOs were either Christian organizations or quasigovernmental organizations. Although the impact of the Indochinese refugee crisis was significant insofar as it spurred the establishment of about twenty NGOs, the broader political impact was limited. While the increased activity of Japanese citizens working with Japanese NGOs abroad to address the needs of refugees has had some effect on domestic civil society, the lack of advocacy or policy-oriented NGOs in Japan meant that citizen action was limited to individual volunteers helping refugees to adjust to their new life through various activities such as tutoring them in Japanese. 67 In areas such as Kanagawa Prefecture, where there was a concentration of refugees, local social service-oriented NGOs were established. One example is the Kanagawa Indochinese Refugee Assistance Organization recently renamed the Kanagawa Refugee Assistance Organization. Such organizations usually had only one or two paid staff who coordinated volunteer activities. Organization names indicated their focus on providing services to Indochinese refugees, not policy or advocacy. Tracing the discursive construction of Japan s identity in the Asahi and Yomiuri s opinion pages and Lower House Diet committee meetings from , reveals four aspects of state identity, which led Japan to ratify 65. Id. at Keiko Hirata, Civil Society in Japan: The Growing Role of NGOs in Tokyo s Aid Development Policy 30 (2003). 67. See Id. at 31 32, for a detailed consideration of Japanese civil society. See also Frank J. Schwartz & Susan Pharr, The State of Civil Society in Japan 9 (2003).

15 98 HUMAN RIGHTS QUARTERLY Vol. 38 the Refugee Convention despite the absence of material benefits. 68 These four identity-aspects are: (1) Japan as a developed state, (2) its duty and obligation to international society, (3) the need to avoid embarrassment, and (4) its preoccupation with avoiding isolationist tendencies. The impetus that leads Japan to be an active member of the international community is rooted in these four aspects. 69 At the same time, the discourse of Japan as a homogeneous nation is a strong deterrent in pursuing international legitimacy. 70 Two primary components of Japan s identity are its economic power and its democratic government. 71 As an economic power, Japan has particular international obligations that increase with its increasing wealth. Its identity as a democracy mediates the actions taken to fulfill these obligations. The mutually constituted state interest in obtaining increased international legitimacy and state identity accounts for why Japan adopted the Refugee Convention. Contrary to the literature, the degree of conflict between domestic and international norms does not matter as much as it does during the adoption phase when desire for legitimacy is high. Examining the particular context in which adoption took place, including how the perception of foreignness developed over the years, illustrates that the understanding of foreignness in Japan informs the understanding of refugee in a way that highlights the conflict between Japan s impulse to fully participate in international society and the impulse to protect the nation which hinders compliance with the Convention. 72 IV. Women s Employment: Managing Gender Roles A great disparity exists between the social and cultural importance of women as mothers and homemakers in Japan, and the significance of those roles as conceptualized within CEDAW. Based on the conflict between the international and domestic norms, the literature would expect domestic norms to prevail and CEDAW to not be adopted. 73 If adopted, a low level of compliance would be expected. In fact, not only did Japan adopt CEDAW, but it progressively institutionalized and achieved a medium degree of compliance. This is in stark contrast to the Refugee Convention, where there was also a high degree of conflict. The difference raises the question: what was different in these two cases? How can we understand the process and explain the outcome to achieve better compliance with future agreements? 68. Petrice R. Flowers, The International Refugee Convention: National Identity as a Limitation on Compliance, in Forced Migration and Global Processes: A View From Forced Migration Studies 13 (François Crépeau, et al. eds., 2006). 69. Id. at Id. at Id. 72. Id. 73. Flowers, supra note 30, at 70.

16 2016 International Human Rights Norms in Japan 99 A significant difference between the two issues refugee policy and women s employment was the strength of domestic advocates. 74 This strength and the state s desire for legitimacy explain Japan s ratification of CEDAW. Additionally, the efforts of these domestic advocates also accounts for compliance with the treaty. The organization of domestic advocates is a central part of this issue. State dominance of state-society relations in Japan, along with state suspicion of citizen s organizations, produced an anemic civil society where organizations usually suffer from lack of funding and lack of access to power. In this case, women s organizations used a strategy of coalition building, taking advantage of significant social achievements and connections with high-profile women in the government to strengthen their influence. Support for CEDAW started in 1976 with International Women s Year, the same year as the thirtieth anniversary of women s suffrage in Japan. 75 The continuity in women s movements, the personal appeal of individual women, and their networks of government contacts helped women s organizations serve as domestic advocates and influence the government to ratify CEDAW. Explanations for why states adopt international norms that conflict with domestic norms offered by other scholars include: the role of transnational networks, norm entrepreneurs, and instrumental reasoning. 76 However, this literature focuses specifically on the role of nonstate actors (not necessarily domestic advocates) and their activities, overlooking the importance of their ties to the state. Yet, domestic advocates were an essential aspect of the influence of women s organizations in Japan. 77 Literature, such as Margaret Keck and Kathryn Sikkink s boomerang effect, also stresses the importance of transnational networks as an avenue for domestic actors to go outside a resistant state to exert pressure on that state. 78 Although Japanese women s organizations did have access to these kinds of networks, they used them to improve their access to information. Information access allowed women s organization to deal directly with government actors more effectively. This example demonstrates how domestic advocates use their ties to the state to influence both adoption and compliance, and how transnational networks can be used toward that end. Analyzing the ties between domestic advocates and the state illuminates the opportunities and limitations of domestic context that is central in norm adoption and compliance Id. at Id. 76. For example: Audie Klotz, Norms Reconstituting Interests: Global Racial Equality and U.S. Sanctions Against South Africa, 49 Int l Org. 451 (1995); Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998). 77. See Sheldon Garon, Molding Japanese Minds: The State in Everyday Life (1997). Tiana Norgren, Abortion Before Birth Control: The Politics of Reproduction in Postwar Japan (2001) to find similar patterns in their studies. 78. See Activists Beyond Borders, supra note Checkel, Norms, Institutions, and National Identity in Contemporary Europe, supra note 6, at 88; Evangelista, The Paradox of State Strength, supra note 6, at 5; Evangelista, Unarmed Forces, supra note 6, at 384.

17 100 HUMAN RIGHTS QUARTERLY Vol. 38 In the 1960s and 1970s, it was common for Japanese women to be employed until their mid-twenties, when they retired upon marriage or pregnancy. 80 Government policies continue to support a life course for women that encourages them to work until they marry and have children in their mid-to late-twenties, stay at home fulltime to take care of their children, and then return to the kind of flexible work that will allow them to continue to take care of their families. 81 This is known as the M-curve. 82 A society which recognizes the importance of child-rearing and home-making, and assumes that women are responsible for both of these duties perpetuates this pattern of a woman s employment, and in turn, creates social pressure for women to fulfill these roles. In addition to cultural practices that perpetuate this M- curve system, there are also structural conditions that discourage women from becoming fulltime, regular employees. Some of the policies that preserve the M-curve and deter women from seeking work as regular employees are pension policies, health insurance policies, and tax policies. 83 Of these, the most intriguing deterrent to women seeking fulltime employment is tax policy. The benefits of remaining an economic dependent outweigh the costs that would accrue due to having to pay for unemployment insurance, making contributions to pension funds, and paying taxes on the income if it exceeded the allowed amount. 84 Japan s third report to the CEDAW Committee confirmed this when Japan s representative stated, [U]nder the present framework of the tax and social security system, many women part-time workers limit their work hours to keep their income within a certain amount in order to be treated as dependents of their spouses. In such cases, the potential of women is not fully utilized. 85 Although tax policy may encourage women to work outside the home in low-wage jobs, it helped to preserve the gender division of labor within the household and large companies by discouraging women from entering segments of the labor force reserved for men, ensuring that women would remain primarily a reserve workforce. 86 This state of affairs provides context for the emergence of women s demands that Japan adopt CEDAW. Before CEDAW was ratified, a first phase of employment discrimination lawsuits occurred from the mid-1960s to late 1970s. These suits focused on 80. Nancy R. Rosenberger, Fragile Resistance, Signs of Status: Women Between State and Media in Japan, in Re-Imaging Japanese Women 12, (Anne E. Imamura ed., 1996). 81. Id. at 12. Overall women are getting married and having children at an older age now. 82. See generally Leonard J. Schoppa, Race for the Exits: The Unraveling of Japan s System of Social Protection (2006). 83. Id. 84. Id. Women who make under the equivalent of about $10,000 per year do not have to pay taxes on their income and their husbands can also claim them as dependents and take an additional $3,000 per year in deductions. 85. CEDAW, UN Committee on the Elimination of Discrimination against Women: Third Periodic Reports of States Parties: Japan, U.N. Doc. CEDAW/C/JPN/3 (2 Nov. 1993). 86. Id.

18 2016 International Human Rights Norms in Japan 101 discrimination in wage, retirement, and workforce reduction policies. 87 Wage discrimination based on sex was, initially, the only legally sanctioned act of discrimination in which to pursue legal action. 88 Despite plaintiff victories, employers claimed differential pay rates were due to different kinds of work. Most recently, justifications were based on the two-track system where men are usually employed on the managerial track (sogō shoku) and women on the clerical track (ippan shoku). Disparities in pay are then justified by two different kinds of work, not sex per se. As far back as their consideration of Japan s initial report, submitted in 1988, the CEDAW Committee noted that regardless of the same educational requirements, men s starting salaries were higher than women s. 89 The Equal Employment Opportunity Law (EEOL) was enacted in 1985 because the Diet determined to enact the law before ratifying CEDAW. The difficult negotiations that involved the Ministries of Labor and Education, as well as unions and employer s associations, resulted in a very weak law requiring employers to try not to discriminate against women, but included no sanctions if they did. 90 If a woman did face discrimination her only recourse under the EEOL was to seek mediation from the Women and Young Workers Bureau of the Ministry of Labor. However, her employer would have to agree to such mediation before it could proceed. 91 This law illustrates how in a case with a high degree of conflict between domestic and international norms, may result in weak implementation of the human rights norm. Weak implementation hinders achieving higher levels of compliance. In this case, strong domestic advocates created better implementation by pushing the Diet to revise the EEOL in 1999 and again in Perhaps the greatest victories of domestic advocates were a series of high profile discrimination lawsuits against companies in the Sumitomo Group, which were decided in favor of the plaintiffs on appeal by the Osaka High Court. In addition to these victories, domestic advocates continue to use the CEDAW Committee s review of Japan s country reports as opportunities to push for greater compliance with the treaty. 93 Since women had been organizing around various issues for decades before International Women s Year, they were in a position to exert pressure on the government. Japan joined the United Nations in One year later, Ichikawa Fusae and Fujita Taki formed the National Women s Committee of the United Nations from ten women s NGOs and twenty-one individual 87. Frank K. Upham, Law and Social Change in Postwar Japan 129 (1987). 88. Id. at Id. at Id. at Megan L. Starich, The 2006 Revision to Japan s Equal Opportunity Employment Law: A Narrow Approach to a Pervasive Problem, 16 Pac. Rim L. & Pol y J. 551, 557 (2007). 92. Id. at Id. at 556.