Further Developments in Fukushima and Other New Movements for Implementing International Human Rights Law in Japan

in Asian Yearbook of International Law
Open Access

i Introduction

This note describes the notable improvements in human rights practices in Japan in 2015 (including early 2016). One is related to personal rights: the court judgements which ordered the suspension of two nuclear reactors based on personal rights. It is the first time for a Japanese court to suspend nuclear reactors which passed the new safety standards designated after the March 2011 Fukushima Daiichi Nuclear Power Plant Accident. The others are related to improvements of the status of children and women. In 2015, Japan revised the law to lower the voting age from 20 to 18, considering Article 1 of the Convention on the Rights of the Child, although the definition of child in Japan provided in Article 4 of the Civil Code remains unchanged. Then, on 16 December 2015, Japan had the Supreme Court judgment to hold the partial unconstitutionality of Article 733 of the Civil Code and therefore revised that part of Article 733 to allow women to remarry after 100 days periods (shorter than six months) and to remarry even within 100 days from her divorce if medical certificates prove that they were not pregnant at the time of divorce.

However, it might be appropriate to address the abovementioned cases just as on the way to improve the situation of human rights in Japan. As proof of this, on the very same day, 16 December 2015, the Supreme Court held that Article 750 of the Civil Code requiring that married people share a common family name do not violate the Constitution. It is widely recognized that Japan has been criticized to hold the system of same surname against the Article 23 of the iccpr, Article 16(1) of the Convention on the Elimination of All Forms of Discrimination against Women accompanied with several recommendation such as: “On 16 December 2015, the Supreme Court upheld the constitutionality of Article 750 of the Civil Code that requires married couples to use the same surname, which in practice often compels women to adopt their husbands’ surnames.”2

ii Personal Rights Invoked for Prohibition of Reactivation of Nuclear Power Plants

On 11 March 2011, at 2:46 pm, Japan was hit by a 9.0 magnitude earthquake, causing a huge tsunami which devastated the coastal areas of northeast Japan and led to the loss of 19,000 lives in those areas. To make matters worse, this natural disaster triggered the nuclear power plant accident in Fukushima and has had adverse effects to human health and on the environment.

Especially in 2015, there were significant leakages of radiation from the facilities of the Fukushima Nuclear Power Plants. Those accidental leakages shocked many people who believe and expect that the Japanese government well managed to control the operation of Tokyo Electric Power Co (tepco), to proceed with the decommissioning of the Fukushima power plants and to recover the environment of the area.

The first leakage happened on 22 February 2015.3 According to the report of tepco to the Nuclear Regulation Authority (nra), there was contaminated water detected in the drainage which leads to the port outside of the controlled area.4 The second leakage was reported to the nra on 15 September 2015, such as leakages of water from the dikes outside of the tanks in which the contaminated water was stored.5 Although there seemed to be no leakage from the tank, rainfall water accumulated in the dike showed a certain level of contamination. However, the contamination did not affect the ocean.

These incidents remind people of horrible radioactive affects. Moreover, leaks render decommissioning more difficult. Yuichi Okamura, general manager of tepco, said that “Contaminated water floating around and posing a constant risk of leaks disturbs the steady progress toward decommissioning.”6

Under such circumstances, the movement towards reactivation of the other nuclear power plants was questioned. Although the other nuclear power plants have been suspended since 2011, the government promotes to reactivate the nuclear power plants which passed the new strict regulation of examination. It did not necessarily refer to those incidents, but there were remarkable judgements which followed such incidents which clarified the importance of personal rights, noting that we should not forget such disaster and accident.

The first judicial order was given on 14 April 2015, as a provisional injunction.7 The Fukui District Court issued the injunction for the No. 3 and No. 4 reactors at the Takahama plant, holding as follows:

reasonableness to be required for new regulation should be strict to the extent that it would never cause any significant disaster as far as the facilities of the nuclear power plants clear its review. However, the new regulation is too soft and therefore, it never ensures the safety of the nuclear power plants. It is no doubt that the new regulation lacks the reasonableness. Consequently, there are concrete risks of infringement of personal rights.8

However, the Fukui Court lifted the injunction on Takahama reactor on 24 December 2015.9 Therefore, the No. 3 and No. 4 reactors at the Takahama plant were reactivated on January and February 2016.

It is notable that, the other district court, the Otu District Court again ordered to halt such reactivation. Based on personal rights, the court questioned the credibility of safety standards adopted after March 2011 and it ordered the suspension of the two reactors on 9 March 2016.10 It was the first injunction order to be issued by a Japanese court for nuclear reactors that were reactivated after passing what the Nuclear Regulation Authority (nra) calls the “world’s strictest” safety standards11 adopted after the Fukushima nuclear disaster.

iii Other State Practice of Human Rights in 2015

In 2015, there were some remarkable developments in the Japanese State practice to implement international human rights law related to the rights of children and women, although, as described above, there are still things which need to be done.

1 Lowering Voting Age to 18 from 20

In Japan, the voting age had been 20 for public election. Article 4 of the Civil Code provides that “The age of majority is reached when a person has reached the age of 20” and therefore, the Public Offices Election Act also provides that the voting age should be 20.However, nowadays in over 80 percent of the 198 countries and regions, the voting age is set forth as 18. Article 1 of the Convention on the Rights of the Child also provides as follows: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

On 17 June 2015, the amendment to the Public Offices Election Act was adopted in the Diet as one of the main purpose is to encourage younger people to be more politically active. Although this attempt proceeded prior to the reform of the Civil Code and therefore does not touch upon the issue of “adults and children,” it might become a driving force to change the relationship of “adults and children” fundamentally and to enhance the reform of the Civil Code itself. It has been discussed how to match the voting age of 18 with the age of majority of 20 provided in the Civil Code. However, in 2017, Article 4 of the Civil Code is still active and it seems difficult to change the age of majority from 20 to 18.

2 Elimination of Unnecessary Ban of Women’s Remarriage; The Supreme Court’s Judgement and Amendment of Article 733 of the Civil Code

a Supreme Court’s Judgement12

In Japan, women could not remarry within six months after their divorce. This prohibition is introduced to protect possible children born after such a divorce. While this prohibition is helpful to discern who is the father of a child it has been criticized to impose undue restriction of remarriage only on women.

The old Article 733 of the Civil Code related to the ban of women’s remarriage and Article 772 of the Civil Code related to the presumption of paternity of a child provides as follows:13

Article 733

  1. A woman may not remarry unless six months have passed since the day of dissolution or rescission of her previous marriage.

  2. In the case where a woman had conceived a child before the cancellation or dissolution of her previous marriage, the provision of the preceding paragraph shall not apply.

Article 772

  1. A child conceived by a wife during marriage shall be presumed to be a child of her husband.

  2. A child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage.

The appellant suffered from domestic violence of her previous husband and applied for divorced. She divorced her husband in 2008 and gave birth to a daughter on the 221st day after the divorce. Since she could not remarry with the current husband during six months from the divorce, her daughter born in 221 days from her divorce is presumed to be a child in wedlock of the previous husband and could not be registered as a child in wedlock of the current husband. She tried to register her as a child in wedlock of the current husband, but found that her child has to be registered as a child in wedlock of the previous husband, nevertheless the reason of divorce is domestic violence of the previous husband and damages was sought under the State Redress Act, alleging that Article 733 (1) of the Civil Code violates Article 14(1) and Article 24(2) of the Constitution and mental distress accumulated from the six month prohibition of remarriage should be compensated. The appellant also argued there is legislative inaction.

Article 14(1) provides that “(1) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin” and Article 24(2) provides that “With regard to choose of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”14

Article 772(2) of the Civil Code expects that it is possible to avoid confusion over paternity if a child will be born within 300 days from the death or divorce of the previous marriage and after 200 days from the formation of the current marriage. That is, a child who is born within 300 days from the death of the partner or divorce with the partner, is presumed to be a child of the previous partner. On the other hand, a child who is born after 200 days from the formation of the current marriage is presumed to be a child of the current partner. Therefore, according to Article 772(2), if women divorced and remarry at the same time and her child is born, for example, in 250 days, the father of a child is presumed to be both the previous partner and the current partner.

Therefore, in order to avoid such confusion, Article 733 of the Civil Code provides the ban to remarry for six months. In that case, a child who is born in 250 days from divorce is presumed to be a child only of the previous partner, since based on Article 733, women are forced to wait to remarry for six months and only after 70 days have passed from the date of remarriage if a child is born in 250 days from the divorce. Then such a child never meets the other criteria which Article 733 provides: after 200 days from the formation of the current marriage. Even a child is born at the time of 300 days form the divorce, the father of a child is presumed again to be the previous partner, since it does not meet the criteria in that it just passed 120 days from the formation of the current marriage if a woman remarried in wait for ending six-month ban. There is no case to be presumed in an overlapped way, based upon Articles 733 and 772. However, it is criticized to have six-month remarriage ban, since there is just 100-day interval between the presumption of the previous husband and current husband. Such criticism has pointed out the remarriage ban should be invoked only to fill in such 100 days’ interval.

Therefore, the Supreme Court decided it is unnecessary prohibition of remarry for women and concluded that it violates if prohibition is beyond 100 days. However, it did determine the constitutionality of prohibition of 100 days nevertheless of the high possibility to discern the father of a child by scientific means such as examination of DNAs.

One of the main reasons is to stabilize the paternity of a child. If a child is born between a married couple, such child automatically can acquire the status of a legitimate child. If a child is born among non-married couple, he/she is treated as a child out of wedlock and should get affiliation from the father. While a child out of wedlock gets affiliation from his/her father, he/she will have a right of inheritance from the father, a child who is not acknowledged cannot have a right of inheritance.

While the Court fully admits the usefulness of scientific methods to identify the paternity of a child, the Court was concerned and pointed out the unstable status of a child who are forced to wait for the result of scientific examination and the judicial procedure to know his/her legal father.

In conclusion, the Supreme Court held that “the part of the Provision prescribing the 100-day period of prohibition of remarriage does not violate Article 14, paragraph (1) of the Constitution nor Article 24, paragraph (2) of the Constitution. On the other hand, the remaining part of the Provision prescribing the prohibition of remarriage for a period exceeding 100 days cannot be justified as setting a period necessary for avoiding confusion over paternity, as provided in Article 772 of the Civil Code.”

As the Court examined, (1) in the past, the drafters of the Former Civil Code should not be accused, since, at that time, it might be reasonable to have six-month prohibition of remarriage. It is expected that people can easily recognize appearance of pregnancy within six month. They feel 100 days’ length is not enough to know pregnancy, (2) Foreign countries, which have also provisions on the prohibition of remarriage have abolished such a system, (3) Nowadays, it is not entirely the case that there might occur a confusion in respect of the paternity of a child. It is not rare for women to give a birth to a child less than 200 days from the time of marriage. Nevertheless, to impose the restriction more than 100 days only in the case of remarriage is deemed to be excessive.

This judgment is a landmark ruling in that it clarified the partial unconditionality of Article 733. On the other hand, the court did deny the application of State Redress Act to compensate the appellant, based on the examination that there had been and are discretion of the Diet to address the reasonable length of prohibition.

b Amendment to the Civil Code

After this judgement, the Diet decided to revise Article 733 of the Civil Code and enact the new provision,15 considering also that the un Committee on the Elimination of Discrimination against Women has repeatedly called on Japan to drop the ban. The New provision of Article 733 is as follows:

  1. A woman may not remarry unless six months have passed since the day of dissolution or rescission of her previous marriage.

  2. The provision of the preceding paragraph shall not apply.

    • In case where a woman did not conceive a child at the time of cancellation or dissolution of her previous marriage.

    • In case where a woman gave birth a child after cancellation or dissolution of her previous marriage.16

Accordingly, women are subject to shorter remarriage prohibition period (100 days), minimizing “the interval” where the father of a child may be redundantly presumed to be either the previous husband (within 300 days from the divorce) or the current husband (200 days after the marriage) at the time of birth of a child.

More importantly, the revised law allows women who are able to prove by using medical certificates, not to be conceived of a child at the time of divorce, to remarry even right after the divorce.

iv Conclusion

This note described significant developments in the State practice of Japan in the area of international human rights law. The reactivation of the nuclear power plant reactors, where “personal rights” were invoked to issue an injunction and the increasing protection accorded to children and women.

However, it is not yet sufficient in some areas. As mentioned above, on 16 December 2015, the Japanese Supreme court ruled that Article 750 of the Civil Code forcing married couples to use the same surname does not violate the Constitution. Oguni and four other women sought damages for the emotional distress and practical inconvenience of having to take their husband’s name. Oguni, one of the appellant, said that “By losing your surname … you’re being made light of, you’re not respected … It’s as if part of yourself vanishes,” and “If changing surnames is so easy, why don’t more men do it? The system is one that says, basically, if you’re not willing to change, you shouldn’t be getting married.”17

While the law does not designate which name married couples should adopt, in practice in almost all cases, or about 96 per cent, women take their husband’s surname.

Japan has certainly improved its human rights situation to meet the international standard provided under numerous international human rights agreements, starting from the iccpr. However, Japan should continue its effort to fulfil its human rights obligation much more seriously.

Associate Professor, Tokyo University of Foreign Studies, Japan.

CEDAW/C/JPN/CO/7–8, Concluding observations on the combined seventh and eighth periodic reports of Japan, available at: http://www.nichibenren.or.jp/library/ja/kokusai/humanrights_library/treaty/data/woman_report_sokatsu_en.pdf.

Fresh leak of highly radioactive water detected at Fukushima nuclear power plant, The ABC News, available at: http://www.abc.net.au/news/2015-02-22/fresh-nuclear-leak-detected-at-fukushima-plant/6200746.

nra, Possible Flow of Contaminated Water to the Outside of the Controlled Area of Fukushima Daiichi nps, available at: https://www.nsr.go.jp/data/000098312.pdf.

nra, Leakages of water from the dikes in tank areas storing contaminated water at Fukushima Daiichi nps, available at: https://www.nsr.go.jp/data/000122104.pdf.

Fukushima nuclear plant ‘will leak radioactive water for four more years,’ The Telegraph, available at: http://www.telegraph.co.uk/news/worldnews/asia/japan/12189613/Fukushima-nuclear-plant-will-leak-radioactive-water-for-four-more-years.html.

Ibid.

Order, available at: http://www.news-pj.net/diary/38643.

Available at: https://www.nsr.go.jp/data/000070101.pdf (in Japanese).

Judgment concerning whether the part of the provision of Article 733, paragraph (1) of the Civil Code, which prescribes the 100-days period of prohibition of remarriage violates Article 14, paragraph (1) and Article 24, paragraph (2) of the Constitution, 16 December 2015, 2013 (O) 1079, Minshu Vol. 69, No. 8, available at: http://www.courts.go.jp/app/hanrei_en/detail?id=1418.

The Constitution of Japan, available at: http://www.japaneselawtranslation.go.jp/law/detail/?id=174.

Tomohiro Osaki, “Diet scraps dated marriage-ban law as session wraps up,” The ­Japan Times, available at: http://www.japantimes.co.jp/news/2016/06/01/national/politics-diplomacy/diet-scraps-dated-marriage-ban-law-as-session-wraps-up.

Translation by the Author: available at: http://www.moj.go.jp/content/001184601.pdf (Only in Japanese).

Japan upholds rule that married couples must have same surname, The Guardian, available at: https://www.theguardian.com/world/2015/dec/16/japanese-court-rules-married-women-cannot-keep-their-surnames.

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