By:Brian Bailey
Most Americans know very little about the immigration laws of their country, let alone the laws and policies of another nation's such as Japan's. As I had been interested in America's immigration policies for a long time, I decided to research how Japan deals with such an important issue. The basic starting question was,"What are Japan's laws and policies regarding immigration, and why are they the way they are?"
Doing this research project has been somewhat like putting together a puzzle. Each source does not seem terribly significant until you begin combining the different sources. Then relationships between various facts becomes clearer and an understanding of Japan's immigration situation--meaning all aspects of immigration related to Japan, including refugees and foreign workers--begins to emerge. It is not wise, however, simply to understand Japan's laws and policies regarding immigration in a vacuum.We will want to know how Japan's immigration situation contrasts with that of other advanced industrial democracies. In this way, we can gain something valuable--perspective. In other words, a contrast of how Japan differs from other advanced industrial democracies regarding immigration enables us to extrapolate a hypothesis on why Japan's laws and policies differ from those of other advanced industrial democracies. Hence the purpose of this paper is to not only inform, but to explain.
Many sources have been used in this paper. The fundamental source for this paper, however, has been Japan's Immigration-Control and Refugee-Recognition Act of 1989. However, reading this Act alone does not explain why the laws and policies are the way they are. Nor does it reveal the context of the laws and policies. For example, why did Japan change its policies toward Indochinese refugees in 1989? Newspaper and magazine articles have been used to answer these types of questions. They have also been helpful in explaining the bureaucratic rules that Japan has towards refugees and foreign workers as embodied in Ministry of Justice Ordinances. Various books have also been helpful in explaining particular issues, such as Japan's need for unskilled labor. By examining all these various sources, Japan's immigration policies and laws, and the effects of and the reasons for them, begins to come into focus.
The first question that must be addressed before proceeding further is--what is immigration? In the most general definition, immigration can be defined as the movement of people from one country to another. Section I begins with this definition, discussing first temporary, and then permanent immigration (i.e.achieving permanent residence status). Since the word "immigration" is generally used in the United States to denote "permanent immigration," it should be read as such in this paper, unless otherwise qualified. When necessary for clarity, though, the phrase "permanent immigration" will still be used.
Permanent immigration is primarily, but not completely, the result of discretionary immigration policy. Though the term is somewhat self-explanatory, to be clear, this paper defines discretionary immigration as immigration that a country might have for reunification of families, for economic reasons, for rapidly increasing the population to fill available land, etc. For example, the roughly one million permanent immigrants the United States accepts each year is primarily the result of discretionary immigration. Almost all countries today, including Japan, have laws for temporary immigration. It is in regard to permanent immigration, that policies and laws diverge significantly between countries.
Though discretionary immigration accounts for most permanent immigration, admittance of refugees and foreign workers often becomes a source of de facto permanent immigration. Refugees usually apply for permanent residence. Foreign workers are often invited to stay temporarily to work in a country with a shortage of unskilled labor; often what happens, though, is that the foreign workers refuse to return home and so in effect become permanent immigrants. Since refugees and foreign workers are unique categories of immigration, they will be dealt with in Section II and Section III respectively.
In Section I of this paper, we will go through Japan's basic policies and laws with regard to temporary and permanent immigration (again, note that discretionary immigration policy accounts for most permanent immigration), and see why and how they have developed. Japan's handling of the Korean and Chinese who were in Japan when World War II ended will be discussed. This section will also discuss why Japan is so strict regarding permanent immigration, with specific reference to discretionary immigration. Contrasts will also be made with the United States, and the section will suggest that both the United States and Japan should learn from each other regarding immigration.
In Section II we will describe Japan's policies and laws with regard to refugees and asylees and why and how they developed. Japan's refugee problem began in the late 1980's. Again, contrasts will be made with the United States and other advanced industrial democracies. This section will note that dealing with refugees and asylees is primarily an international issue--not discretionary policy--for those countries that have signed the United Nations Protocol Relating to Refugees. Hence the question can be raised as to whether Japan is living up to the Protocol.
Section II will discuss Japan's foreign worker situation. This is Japan's most recent immigration-related crisis and it has yet to be resolved adequately. Why and how this problem developed will be discussed. Contrasts will be made with Germany whose experience, but not its solution, resembles Japan's in terms of foreign workers.
Section IV, the last section, will conclude by putting Japan's laws and policies in historical perspective. We will see that Japan's understanding of its position in Asia has changed dramatically in just the last 50 years, with consequences for immigration.
The unifying idea developed by this paper to understand why Japan's laws and policies are the way they are is that Japan has its own concept of what makes up the Japanese "nation." This concept has important implications for how Japan views immigration. This paper does not assume that America's liberal discretionary immigration laws and policies are right, and attempt to match Japan to them. That would be hubris. Japan's concept of what makes up its nation is very different from the United States'. These different concepts ultimately effect each country's laws and policies towards not only discretionary immigration, but towards refugees and foreign workers as well.
The basic law for temporary and permanent immigration in Japan is the Immigration-Control and Refugee-Recognition Act (ICRRA) that was passed in 1951 and subsequently amended in 1981 and 1989. It is mainly concerned with temporary immigration. Only a small portion of the ICRRA deals with permanent immigration. This section will begin by looking at status of residence and how this relates to temporary immigration. Then this section will examine permanent immigration and why it is so severely restricted by Japan. Finally, this section will discuss how both Japan and the United States can learn from one another regarding immigration.
Status of Residence: The Fundamental Basis of Exit, Entry, and Control of Foreigners in Japan
The ICRRA establishes various "statuses of residence" by which foreigners can enter Japan. There are currently 28 statuses of residence for entry into Japan (see Table 1 in Appendix). To enter Japan, one must have a status of residence stamped into one's passport at the port of entry (Narita Airport in Tokyo, etc.). The various statuses of residence depend upon the activity the foreigner will be performing while in Japan. Each status explicitly states what the foreigner is allowed to do while in Japan and how long he/she is allowed to stay. The statuses range from that of diplomat, journalist or professor, to engineer, college student or temporary visitor. For the status of "temporary visitor" (see Table 1 in Appendix), which essentially means "tourist," a visa is required before entry, unless Japan has an agreement with the entrant's country which states that a visa is not required for entry as a tourist. (Noticeably absent from the various statuses of residence is that of unskilled worker. This is at the heart of Japan's present immigration dilemma and will be discussed in Section III.)
The length of stay under a status of residence may be extended an unlimited number of times. (ICRRA, p24-25 [Article 21]) For example, many professors at Sophia University in Tokyo, are American. Some professors have the status of "professor" which is holds valid for 3 years. However, many have been in Japan for over 30 years and so have applied to extend their stay at least 10 times.
To obtain a visa so as to receive a particular status of residence upon entry is quite complicated. The example of a student who wants to study at a Japanese university for one year will be illustrative.
First, he or she must obtain an acceptance letter from the university. The foreigner must also send various documents to the university to the effect that he, or his parents have a certain minimum amount of money in the bank so as to pay for deportation or any other such misfortune that could happen while in Japan. The university needs this and other information in order to request a Certificate of Eligibility from the Ministry of Justice, which is required of all planning to enter Japan temporarily. (ICRRA, p10 [Article 7-2])The Certificate of Eligibility, if granted, is sent to the sponsoring institution, in this case, the university. The university then sends the foreigner the Certificate which must be taken to the Japanese Consulate, along with the acceptance letter, to obtain a college student visa. When entering Narita Airport or any other port of entry, the Immigration Inspector will look at the visa and the Certificate of Eligibility and then stamp in the status of residence of "college student" and the length of stay (1 year) in the passport.
One can change one's status of residence from one kind to another. (ICRRA, p23-24 [Article 20]) However, one cannot change from the status of "temporary visitor" (i.e.tourist) to that of another status as foreigners in Japan often find out. For example, if the Certificate of Eligibility for a foreign student wanting to study in Japan arrives after his scheduled flight date to leave the U.S. for Japan, he might enter Japan as "temporary visitor" (for which no visa is required due to a reciprocal agreement between the US and Japan), planning to have his parents send him the Certificate. However, if he subsequently asks to change to the status of "college student," he would be told he would have to leave the country, take the Certificate of Eligibility to a Japanese Consulate (in any country), obtain the desired "college student" visa, then reenter Japan.
Many foreigners faced with this situation go to Korea and reenter Japan under "college student" status. Japanese immigration officers are extraordinarily strict. They make no exceptions to the rules. The actual reason that they forbid changing from "temporary visitor" status to some other status, is to prevent foreigners from entering to look for work, and then switching to a status that gives a longer period of stay.
Regarding temporary immigration, Japan's laws are quite explicit about who may come to the country, what they are allowed to do once they have entered, and how long they are allowed to stay. Still, Japan's laws regarding temporary immigration are not so different from those of other advanced industrial democracies. Japan's laws do differ significantly, however, in regard to permanent immigration.
Achieving Permanent Residence Status
Most permanent residents in Japan are actually the descendants of Koreans and Chinese brought to Japan before or during World War II. Most of the Koreans and Chinese were brought to Japan by force to work in mines, factories, etc., after 1937 when Japan invaded China. They were essentially colonial subjects. The Koreans achieved their present status from the "Special Immigration Law for Enforcement of the Agreement on the Legal Status and Treatment of the Nationals of the Republic of Korea Residing in Japan" (Law No.146 of 1965). In the sense that most of the Koreans and Chinese did not voluntarily come to Japan, it is difficult to really classify them as "immigrants."
Other permanent residents include those who are spouses or children of Japanese citizens or of other permanent residents. A small number of permanent residents are Indochinese refugees. Technically, any alien (except a tourist) wishing to change to the status of permanent resident can apply to do so under Article 22 of the ICRRA, but rarely is it granted if the alien is not the spouse or child of a Japanese citizen, or of a permanent resident. One requirement for gaining permanent residence under Article 22 is the statement that the Minister of Justice must deem that the foreigner's "permanent residence will be in accordance with the interests of Japan." This catch-all phrase leaves great discretion in the hands of the Ministry of Justice in granting permanent residence.
The other two requirements stated in the ICRRA as necessary for gaining permanent residence are that the alien be of good character and have sufficient assets and/or ability to make an independent living. The Ministry of Justice Ordinance, which fleshes out the ICRRA, adds supplementary requirements. The Ministry of Justice Ordinance, however, is not available for public scrutiny. Nonetheless, the fact that the rules for gaining permanent residence are extraordinarily strict can be seen through the fact that only a small number of foreigners--who have come to Japan voluntarily--have been granted permanent residence.
As of 1991, Japan had about 900,000 permanent residents. The proportion of permanent residents in Japan has never reached 1% of the population, even since WWII. Koreans make up about 650,000 of the permanent resident population, Chinese about 130,000, political refugees about 7,000, and the rest spouses or children of Japanese citizens. (Center for Immigration Studies [CIS], p12) Note that 780,000 of the 900,000 permanent residents in Japan today are descendants of Koreans and Chinese who were brought to Japan as colonial subjects before and during WWII. Hence the number of foreigners who have actually immigrated voluntarily to Japan since 1945 for reasons such as marrying a Japanese, being the child of at least one Japanese parent, being a refugee granted permanent residence, or for any other reason is around 120,000. About 222,000 foreigners have become Japanese citizens since WWII, most being the Koreans and Chinese mentioned above, as well as some spouses and children of Japanese citizens. Note that many Koreans and Chinese born in Japan and granted permanent residence choose not to acquire citizenship, for various reasons. Acquiring citizenship is determined by the Nationality Law of 4 May 1950 (Law No.147 as amended by Law No.268 of 1952 and Law No.45 of 1984).
Contrasting immigration to Japan with immigration to the U.S., we find that the U.S. granted permanent residence (a "green card") to 973,977 foreigners in 1993 alone. (United States Immigration and Nationality Act as of May 1, 1995 [p597]) All of these legal immigrants have the potential to become U.S. citizens within five years. Contrast that with Japan which has granted permanent residence to roughly 900,000 foreigners since 1945 (this includes the descendants of Koreans and Chinese brought forcibly to Japan). While America's foreign-born population (permanent foreign settlers in America) was 8.7% of the U.S. population in 1994, in Japan, it was roughly .7% (900,000 permanent residents divided by the population of Japan which is roughly estimated at 128 million). This percentage, though, is somewhat exaggerated in terms of immigration statistics because most of the permanent residents in Japan are Koreans and Chinese actually born in Japan. The .7% figure is more an estimate of the proportion of the minority (i.e. racially non-Japanese) population of Japan. Japan does not have a sizable foreign-born population of permanent settlers.
Why Permanent Immigration is Severely Restricted by Japan
Having discussed the laws of Japan regarding permanent immigration, it is important now to look at why Japan restricts such immigration so severely in contrast to other advanced industrial democracies. Canada, Australia, and the United States have generous discretionary immigration laws and policies. Germany, the United Kingdom, France, Canada, Australia, and the United States all allow a generous share of refugees and asylees into their country every year, above and beyond those they are required to admit under the United Nations definition of a refugee. Germany and France have allowed many guestworkers to stay permanently (over 5 million in Germany). Japan's immigration situation differs from all of the above countries. Japan, in contrast to all the advanced industrial democracies of the world, severely restricts permanent immigration, in all its forms--discretionary immigration, as well as the admittance of refugees and admittance of unskilled foreign workers.
Answering the question as to why Japan is so restrictive in regard to permanent immigration involves an examination of how Japan's policymakers (legislators as well as bureaucrats) view their nation. If one understands how Japan views itself as a nation,then one will understand why Japan is so strict in terms of discretionary immigration, why Japan admits in so few refugees, and why Japan fears instituting a guestworker program.
This subsection will contrast how Japanese and American views of their respective nations affect specificalloy discretionary immigration (see definition on page 3). Though discretionary immigration accounts for most permanent immigration, keep in mind that how each country views its nation has implications for all forms of permanent immigration--discretionary immigration, admittance of refugees, and admittance of foreign workers (remember, most refugees become permanent residents and there is the 'danger' that foreign workers will also become permanent residents).
Regarding discretionary immigration, Japan and the United States are really at two polar extremes. The United States takes a more liberal stance towards this kind of immigration due to its more liberal view of its nation. Japan takes a more conservative stance on this kind of immigration due to its more conservative view of its nation. Discretionary immigration is discretionary policy. Hence this paper does not intend to imply that one country has the correct laws and policies and the other country has incorrect ones (in fact, the word "comparison" has been avoided because of the connotation that one must necessarily be better than the other). The goal here is simply to show that each country's laws and policies on immigration are rational and self-interested because they derive from each country's different view of their nation.
The term rational self-interest is used in economics to describe how choices are made. People make choices with the available information they have and whith their own view of what is in their best interest. This concept can also be used to describe how Japan's and America's policymakers arrive at decisions regarding discretionary immigration.
The decisions each country makes are not necessarily correct from the other's perspective. This is because Americans and Japanese have different views of what is in their best self-interest, and rationally devise their discretionary immigration laws accordingly. What is unique to each country is the view it has of what is in its best self-interest. Different assumptions dictate different conclusions.
Until the late 1970's, Japan did not have to worry about immigration. Not many immigrants wanted to settle in Japan, especially since Japan was recovering from WWII. Immigration simply was not an issue. The only problem Japan had was dealing with the Korean and Chinese minority that had been in Japan before the end of WWII. But in the late 1970's, Indochinese refugees became a problem for Japan. Thus Japan was forced to grapple with that issue. Then beginning in the late 1980's, illegal foreign workers became a de facto problem. Hence Japan is presently grappling with this issue. Despite the emerging demand to immigrate to Japan that has arisen in the last two decades, Japan has not changed its immigration laws to allow for large-scale discretionary immigration in cotrast to the United States.
"The independent nation as the representative unit of political organization in modern times," is the definition of a nation-state. (Guralnik [Webster's Dictionary], p947) This is true enough. A nation is the unit around which a political organization is formed. But what is a nation? A nation is a group of people with ethnic, cultural, linguistic, or historical bonds. (Kagan et al., p840)
Japan was a nation before Tokugawa Ieyasu unified the country in 1600, but it was not a state in the political sense. Rather, it was a series of independent fiefs (han) ruled by feudal overlords (daimyo). The emperor before and during the Tokugawa period, however, gave the people a feeling, however amorphous and undefined, of unity as a nation. Tokugawa, though, unified Japan politically. Still, the political unity under Tokugawa was more a concept than a reality for most Japanese. They were still under the control of their feudal overlord--in essence, Japan was still a feudal state--not a true nation-state. Under the Meiji Restoration of 1868, however, Japan was on its way to becoming the modern nation-state that it is today with the emperor remaining to this day as the symbol of the unified Japanese nation.
When the policymakers of countries such as Japan and the United States decide what their immigration laws will be, it is common sense that they begin with an intuitive sense of what constitutes their nation--be it ethnicity, language, culture, or any combination of the above. Not surprisingly, their view affects their decisions regarding immigration. Japanese policymakers view their nation today as being homogeneous ethnically, culturally, and linguistically (this paper focuses specifically on the ethnic view of the Japanese nation because it is this view that is central to understanding why Japan restricts immigration so severely). As democratically elected leaders, this is a view that is presumably shared by that of the general citizenry. As a result of this view of the Japanese nation, Japanese policymakers rarely allow permanent immigration because they do not see foreigners, who are not ethnic Japanese, as being compatible with their homogeneous nation. It is irrelevant to question whether their view of the Japanese nation is correct or incorrect because their laws are a reflection of their views, for right or for wrong.
Since Japan is a nation-state, as are most countries today, its primary purpose is to protect and preserve the Japanese nation. This primary purpose is the reason a nation-state has a national defense, and the reason that a nation-state wants to strengthen its economy, and also the reason why a nation-state might want to restrict immigration. Because Japan's policymakers view their nation partly in ethnic terms, immigration is seen as a threat to the Japanese nation and thus immigration is severely restricted. Besides the fact that Japan severely restricts immigration, what clues do we have that ethnicity is viewed as an integral part of what constitutes the Japanese nation? After all, restricting immigration is not evidence alone that a country is trying to preserve the ethnic homogeneity of the nation (there could be economic, environmental, or other reasons for restricting immigration).
First, ude to ethnic, cultural, linguistic, and historical bonds that exist among Japanese, they have a very strong sense of what it means to be Japanese. It is very unlike the ancient Chinese sense where to be Chinese meant to accept the "superior" culture of China. As any foreigner who has lived in Japan a long time can attest, it doesn't matter how fluently one speaks Japanese, nor how well one acts socially like a Japanese and has learned Japanese culture--if you are not racially Japanese, you are not considered Japanese. It is worth quoting at length from Hong Nack Kim, writing in Korea and World Affairs about Japan's view of what it means to be Japanese:
[There is] a deep-seated social conviction of the Japanese, that they are and should remain ethnically homogenous. The Japanese still pride themselves on their uniqueness as a homogeneous nation and resist the idea of accomodating any ethnic minority within a broader concept of citizenship, which to many is almost identical to a concept of racial purity. It is also related to the continuing myth of Japanese racial superiority nurtured under the influence of ultranationalism in the pre-1945 period. Despite the fact that the myth of the racial superiority of a "divine nation" ruled by a "divine emperor" was shattered by Japan's crushing defeat in WWII, many Japanese still pretend that they are superior to other nations, particularly their Asian neighbors, who were once conquered by Japan in the prewar period. As long as such racism remains within Japanese society, it is difficult to expect foreigners to be treated socially and legally as equals by Japanese. (Kim p119-120)
Second, when questioned about their immigration laws and policies, Japanese often say "we are a unique nation" or "we are a homogenous people." Implied in the above statements is that "we want to remain a unique nation" and "we want to remain a homogenous people." One might counter that new immigrants would eventually become a part of the Japanese nation, at least culturally and linguistically. This is true. So why does Japan restrict immigration so severely? Because the Japanese nation is not defined soley on a cultural and linguistic basis; it is also defined ethnically. As Robert Christopher states in The Japanese Mind, "the more eagerly and knowledgeably a foreigner seeks assimilation into Japanese society, the more firmly that society rejects him."(Christopher, p186) You can acquire culture and language, but not ethnicity--and Japanese do not want to break up the ethnic homogeneity of their nation.
Third, we can see that ethnicity is viewed essential to the Japanese nation because Japan does allow nikkei, descendants of Japanese, to come to Japan to work without the restrictions placed on other foreign workers. Allowing in nikkei has been the exception to the rule of excluding all unskilled foreign workers. Many of these nikkei come from Brazil. Ethnicity explains why Japan makes an exception to its rules for these nikkei, many of whom speak little Japanese, and most of whom are not Japanese citizens. As Toyoie Kitagawa, a Toyo University professor states,"Brazilian officials have been very careful not to charge racism becuase they know better than to strain relations with Japan."(Jones, Clayton [Feb 27, 1992] p4) In the racial sense of the word, ethnicity is not something that can be acquired. As mentioned earlier,"if you are not Japanese [racially], you are not Japanese [even if you have mastered the language and culture of Japan]."
Finally, the fact that Japan is considering natalist policies to prevent Japan's labor force from shrinking is clear evidence that population density is not the overriding concern in restricting immigration. Why should Japan consider natalist policies to solve its labor shortage when it could just say the word, and millions of Asians would line up to enter the Japanese workforce? The answer is once again ethnicity. The point is this--Japan still clings to the view of its nation as being ethnically homogeneous. This has implications for Japan's immigration laws.
Many Western reporters have dubbed Japan's immigration policy the "zero-immigration policy" because except for the rare instances when a Japanese marries a foreigner and both plan to live in Japan, when a Japanese has a child with a non-Japanese, or when a refugee is granted permanent residence, permanent immigration is kept as close to zero as possible. Beyond permanent residence, for a foreigner to immigrate and then obtain Japanese citizenship is almost unheard of.
This strict policy results from the desire of Japan's leaders to maintain the ethnic, cultural, and linguistic bonds of the Japanese people. Permanent immigration would only serve to tarnish the Japanese nation. The exception is, of course, the nikkei, because they are ethnic Japanese and are thus capable of being reabsorbed into the Japanese nation. Whether permanent immigration is good for the economy or not is really irrelevant for Japan.
Many articles by Western journalists criticize Japan's immigration laws and policies as if they had the ruler of truth by which to measure and judge Japan's immigration laws and policies. The assumption of these Western journalists is that immigration is a universal positive and thus Japan should take advantage of it. Japan is justifiably wary of free advice from the West, since it perceives the West to be in a state of decline. Furthermore, immigration is not a universal positive. Whether immigration is a positive or a negative depends on each country's view of what is in its best interest. Japan views its nation partly in ethnic terms, and so sees permanent immigration as a negative, regardless of potential economic benefits.
Views by American leaders of what constitutes the American nation has also had implications for American immigration policy. For example, when the Unitd States enacted the Chinese Exclusion Act in 1882, it was implicit that the view of American policymakers at the time was that the American nation was made up of European-descended peoples and Chinese immigrants were a threat to this view of the American nation. Of course the view of what makes up the nation of a country can evolve over time. In 1965, the Immigration and Nationality Act of 1952 was amended considerably. The changes had the de facto effect of curtailing immigration from Europe, and acclerating immigration from Asia and Latin America. Why such a major change in policy? "Public support for the repeal of the national origins quota system reflected changes in public attitudes toward race and national origins."(Immigration and Nationality Act as of May 1, 1995 [p589]) In other words, the vision of what should constitute the American nation changed. One vestige from the past that serves to illustrate just how recently the view of the American nation has changed is that many Japanese still equate "American" with "white."
The new vision of the American nation, however, is no longer based on ethnicity. The consequence for immigration is that even if immigration of non-European peoples remains an issue for some, it is now academic--of the 937,977 permanent immigrants accepted in 1993, 808,266 did not come from Europe. Even if some Americans do not accept this new vision of the American nation, or even if some policymakers do not, the fact of the matter is, there are enough policymakers with this new view of the American nation that they can shape immigration laws accordingly.
The vision that a country's policymakers have of what constitutes their nation is naturally reflected in the immigration laws they create. For Japan, this vision of the Japanese nation is based on ethnicity, culture, and language. In America, the vision of what makes up the American nation is currently in flux. Some say a "shared commitment to the American values of liberty, democracy, and equal opportunity" unifies the nation.(U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities[p8]) Others say the English language is the unifiying factor. For the purpose of this paper,though, it is only necessary to realize that unlike in Japan, ethnicity is no longer considered a criterion for American unity. As such, immigration from Asia and Latin America is not considered a threat to the American nation on ethnic grounds precisely because the American nation is not defined in ethnic terms.
> Though immigration may not be seen as a threat to the American nation on ethnic grounds, this does not explain why immigration is allowed. After all, the vision of what constitutes the nation of a country is only important in deciding whether immigration is a threat to this vision of the nation (immigration is not like natonal defense, education, foreign policy, or the budget where a government must have a positive policy--governments do not decide whether or not to have a national defense, or a foreign policy for a given year). Thus there must be some reason that the current law allowing in roughly one million permanent immigrants to the United States each year is justified by policymakers. Current immigration law in the United States is justified by policymakers and others on the basis of economics and family reunification.
The United States and Japan: Learning from each other on the Issue of Immigration
Though this paper does not imply that one country has the correct immigration policy and one has the wrong policy, it is the view of this author that each country can learn from the other's approach to immigration as long as each country understands the concept of nationhood that the other is dealing with. For the United States, ther ecould be lessons to be learned from japan concerning immigration and economics. And for Japan, ther could be lessons to be learned from the United States in terms of immigration and multiethnic societies (Japanese do, acutally, look at multiethnic America in deciding whether to change the ethnic view of their nation and hence liberalize their immigration laws and policies). First we will deal with economics, and then multiethnic societies.
The United States and Japan both strive for high economic growth, ceteris paribus. Policymakers in the United States partly justify America's liberal immigration laws on the basis that it benefits the economy. One famous pro-immigration economist, Julian Simon, in his book The Economic Consequences of Immigration, promotes the idea that immigration contributes significantly to economic growth. Noticeably absent from the analysis in the book is the case of Japan, a country that has had virtually no permanent immigration since WWII, yet whose economy grew remarkably faster than the United States', even granting that it started from a lower GDP base.
Of course, whether immigration is or is not beneficial to the U.S. economy is an ongoing debate. But as the debate goes on in the United States concerning immigration and economic growth, the United States migh want to take a look at why Japan's economy has been able to do so well since WWII, despite the fact that it had virtually no significant permanent immigration.
Certainly abundant resources cannot be the explanation of Japan's economic success as it basically has no exploitable natural resources. Immigration definitely does not explain Japan's success because as we have found out, it has had virtually no immigration. The answer is "innovation--new ideas, new institutions, new ways of working."(Brimelow p59) Everybody acknowledges that Japan is excellent at taking ideas, from America or elsewhere, and putting them to practical use. Japanese products are craved worldwide. This is one of the reasons America has a massive trade deficit with Japan--Americans are addicted to Hondas, Sony televisions, etc.
Japan also has unique institutions. For example, the Ministry of International Trade and Industry (MITI) is a government ministry that basically coaches Japanese businesses. This is unheard of in America where government and industry have an antagonistic relationship. As for new ways of working, Japan has the seniority system in its companies, lifetime employment, collective hiring, an emphasis on workers over stockholders and an emphasis on harmony and respect between management and labor.
Immigration has certainly not been necessary for economic growth in Japan. Some claim immigration is the lazy man's answer to economic growth--don't innovate, just rely on an never-ending supply of labor that keeps wages stagnant, and thus costs low.Japan does not prove that immigration was not beneficial to America in the past, or even that immigration is not beneficial to America now. However, Japan does stand as an example of an advanced industrial democracy that achieved high economic growth without immigration. The United States should at least take note.
The Japanese certainly use Western countries as examples when analyzing their immigration laws and policies. Some use Western countries as examples of why Japan should reform and liberalize its immigration laws. Japanese commentators such as Haruo Shimada, immigration specialist, and Yasuhiko Saito, professor of international law at Tokyo University of Foreign Studies, essentially urge Japan to follow the West's lead and open its doors wider to immigrants. Implicitly they urge Japan to change its view of its nation so that it is no longer viewed partly in ethnic terms. They argue not so much that accepting more permanent immigrants is good, but rather that it is inevitable. It is worth quoting at length from Saito whose argument exemplifies this view:
Japan has already done much to open its doors to the international flow of products, money, and information. All that is left is to open up to the flow of people. Perhaps the need for this has arrived a decade earlier than expected--although from Western Europe's standpoint, Japan is ten years late. By the 1990's, Japan, like it or not, will have to conform to this global trend. If it is to remain an integral part of the international community, it cannot continue to insist on being an exception to the rule. Since the end of WWII, Japan has endeavored to preserve its homogeneity and to thereby avoid the numerous social and cultural problems that confront multiracial and multicultural societies. But times have changed.(Saito [1990] p88)Though this passage by Saito was written in 1990, Japan has successfully avoided liberalization of its immigration and laws. Contrary to Saito's assertion, Japan has not had to conform to the supposed global trend of multiethnic societies thus far. Perhaps Japan will have to conform to this trend in the future, but it appears Japan will continue to resist, well into the twenty-first century.
I do not know what would follow after that [allowing many permanent immigrants into Japan]. Some people claim that Japanese society would become a better place. But my own belief is that our national vitality would gradually be sapped to the point where the United States and Europe would no longer have to worry about Japanese competition. Ultimately many people might come to feel secretly that the admission of foreigners had been a grievous error. By then it would be too late, however, and probably no one would even have the energy to speak out on the subject...How has Japan managed to catch up with the industrial West so qucikly? It seems to me that this accomplishment is not so much a Japanese success story as a U.S. and West European failure, one caused by the problems slowly eating away at their societies from within.(Kanji [1990] p56)The Japanese are often criticized for "loath[ing] the thought of becoming a multiracial society." ("Needed But Not Wanted," Economist [Aug 12, 1989], p58) That probably is a fair assessment of how most Japanese feel on the issue. But it comes from looking at many of the multiracial societies of the West, and noticing the social decay and stagnation in those societies. Perhaps it may only be correlation; many Japanese, however, see it as causation. The view of Nishio Kanji seems to hold sway in Japan--learn from the 'mistakes' of the West and keep the Japanese nation, defined in ethnic terms, intact.
Refugees and asylees are defined by the United Nations Protocol Relating to the Status of Refugees (1967) as person who,"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..." (Immigration and Nationality Act as of May 1, 1995 [p462]) There is a technical distinction between refugee and asylee depending on where the application is made for "refugee status": a refugee is one who is outside his native country in a 2nd country and is waiting to be taken to a 3rd country for temporary or permanent resettlement (for example, Vietnamese in Hong Kong detention camps hoping for Australia or other countries, to accept them). An asylee is one who arrives at the 3rd country directly and then applies for asylum (read: "refugee status"). Because both refugees and asylees escape their native country and fear returning due to persecution, the UN Protocol classifies both as "refugees," regardless of where the application is made. Hence both asylees and refugees apply for "refugee status."
Strictly applied, very few people would obtain resettlement in a foreign country using the U.N. defintion. Firstly, those people actually experiencing the persecution would, assuming they survived, be those most likely unable to escape their persecution (they are jailed, etc.). In addition, assuming one is able to escape, obtaining materials and witnesses to prove such persecution is probably the furtherst thing from the persecuted person's mind. Thus it is very difficult for immigration authorities to determine a genuine political refugee from a common economic refugee. This said, why have so many refugees and asylees been granted resettlement in advanced industrial democracies like the United States, Canada, Australia, and European countries, but so few granted resettlement in Japan?
The reason is simple enough. Most countries such as the U.S., Australia, Canada, and the European countries have somewhat lax guidelines for proving refugee status as defined by the U.N. Protocol. More significant than the above reason, however, is that these countries have other humanitarian channels by which aliens can resettle, even though they may not meet the U.N. definition of a refugee. For example, Australia allows in humanitarian immigrants who have experienced substantial violation of their human rights (note that this is very different from refugees as defined by the U.N.). Britain makes exceptions for those asylees who, though not meeting the U.N. definition of a refugee, are still accepted because,"it would not have been right to insist on their leaving the United Kingdom." (Statistics and information on Australia, Canada, and European countries are taken from [if not stated otherwise] the "Immigration and Nationality Policies of Leading Migration Nations," produced by the Center for Immigration Studies, August 1992) So there are many means by which humanitarian immigrants are accepted by these countries, even though they may not meet the U.N. definition of a refugee.
Japan, in contrast to the other advanced industrial democracies, applies the definition of a refugee quite literally such that it is almost impossible to obtain refugee status. Furthermore, Japan has no other humanitarian channels of entrance for those aliens that may have had their human rights violated, but are outside of the U.N. definition of a refugee.
To be recognized as a refugee under the U.N. definition, an alien will often go directly to the country where he/she wishes to obtain permanent resettlement. This person is technically an asylee. Lately, most persons granted refugee status are accepted in this manner. However, the dominant form of accepting refugees throughout the 1970's and 1980's was to accept refugees detained in refugee camps outside their country of origin. This form of refugee acceptance became common due to the various crises that were occurring in Indochina at the time.
In the history of accepting refugees, only Indochinese refugees have actually been accepted and transported to so many countries on a global scale. Refugees escaped to neighboring countries such as Thailand and the Philippines where they waited for advanced industrial democracies like the U.S. or Canada to accept them. The U.S. and other Western democracies volunteered to take a portion of the refugees waiting in the many camps. Transportation expenses were usually borne by the accepting nation. Since there were so many refugees escaping from Indochina, most countries set yearly quotas for accepting them.
This section will show that Japan's policies towards refugees and asylees are diametrically opposed to the policies of most advanced industrial democracies. Japan minimizes the number of refugees and asylees it accepts yearly while most other advanced industrial democracies accept many refugees and asylees above and beyond those strictly classified as refugees by the U.N. definition. This section will also show that it is the Ministry of Justice's secretive guidelines for determining who meets the U.N. definition of a refugee that are partly to blame for Japan's relatively poor record of refugee and asylee acceptance.
In Section I of this paper, judgment of Japan's discretionary immigration laws was avoided because discretionary immigration is discretionary policy. Refugee policy is a different matter because it involves international cooperation, at least among those nations that have signed the U.N. Protocol Relating to the Status of Refugees. Japan signed this Protocol in 1981 and it went into effect for Japan on January 1, 1982. International criticism is warranted when Japan, or any other country, does not live up to the U.N. Protocol that it signed.
The argument in this section is not that Japan should be more like Western countries and admit refugees and asylees outside the U.N. definition of a refugee. Admitting more refugees than necessary under the U.N. definition is optional and dependent on a cross-section of domestic and foreign policy. The argument in this section is simply that Japan needs to live up to its obligations under the Protocol which it has signed, at a level commensurate with its role as an economic superpower and as a member of the league of advanced industrial democracies.
The previous section of this paper showed how Japan's desire to preserve its ethnically homogeneous nation affects its immigration policy. Refugees are not different from regular immigrants in the sense that they normally intend to stay permanently in their newly adoptive land. Thus how does Japan resolve its signing of the Protocol, which demands equal treatment of all refugees and asylees regardless of race or national origin, with the desire to preserve its ethnic homogeneity? The answer is simple enough. Acceptance of refugees is minimized. Unfortunately, this minimalist approach is contrary to the spirit of the Protocol and unfairly burdens other advanced industrial democracies which have to accept more refugees than would be necessary if Japan accepted its fair share.
Japan should comply fully with the Protocol, or else terminate (in diplomatic parlance,"denounce") its acceptance of the Protocol which it has the right to do under Article 44 of the Protocol.
Between 1975 and 1989, Australia resettled 172,823 refugees, asylees, and humanitarian entrants. (Statistics for Western countries taken from Center for Immigration Studies' "Immigration and Nationality Policies of Leading Migration Nations." Between 1975 and 1990, Canada resettled 326,635 refugees, asylees, and humanitarian entrants. Germany has allowed hundreds of thousands of refugees, asylees, and humanitarian entrants to remain in Germany regardless of the strict definition in the Protocol (865,000 refugees, asylees, and humanitarian entrants were living in Germany by December of 1989). Between 1983 and 1991, roughly 114,000 refugees, asylees, and humanitarian entrants were accepted by France (many from China). The United States accepts, as policy, roughly 100,000 refugees yearly, in addition to a large number of unexpected asylees. Finally, Japan accepted 6,957 refugees and roughly 200 asylees between 1979 and 1990. (Center for Immigration Studies' "Basic Outline--Japan," p11-12)
In making sense of the above statistics, one must remember that all of the above countries, except Japan, have laws and policies to accept refugees and asylees above and beyond those that would be accepted simply using the U.N. definition of a refugee--these 'excess' refugees and asylees are termed "humanitarian entrants." Hence, the numbers of refugees and asylees that the West accepts are quite high.
However, if we look at the number of refugees (understood in the technical sense) that were accepted using only the strict U.N. definition of a refugee by each of the Western countries, Japan's acceptance of 6,957 refugees over an eleven year period still pales in comparison. Germany, for example, accepted 35,300 refugees using the strict U.N. definition of a refugee, over a time period similar to Japan's. Canada, in one year alone (1989), accepted 10,234 refugees using the strict U.N. definition. Other Western countries have accepted similarly high numbers using the U.N. definition of a refugee.
Relative to the other advanced industrial democracies, Japan has accepted very few refugees, even when contrasting those accepted only under the U.N. definition of a refugee. Why should this be so? Japan's economy is twice the size of Germany's, and four times the size of
Canada's. Furthermore, the demographic impact of accepting refugees into Japan, a country of about 130 million people, would be proportionally smaller than that of accepting refugees into a country of about 80 million people (Germany), and 30 million people (Canada). Hence using economics and demography as a rough measure of absorptive capacity, not only should Japan have accepted as many refugees as Canada, Germany, and other Western countries--it should have accepted many more. However, this has not been the case.
Having first contrasted the total number of refugees and asylees accepted by Japan and other advanced industrial democracies, then next having contrasted the number of refugees, understood in the technical sense, accepted using the strict U.N. definition of a refugee by each of these countries, we will now contrast the number of asylees, understood in the technical sense, accepted using the strict U.N. definition of refugee. Consdier the following statistics on granting refugee status to asylees, understood in the technical sense, reported by the L.A. Times on March 18, 1993:
In 1990, Japan approved 20 of 32 asylum requests, or 6.2%. That compares to 99,697 approvals, or 73.7%, for the United States; 13,073, or 15.2%, for France; 6,528, or 4.4%, for Germany; and 2,167, or 7.4%, for Sweden, according to Japanese government figures. (Watanabe, Teresa. Los Angeles Times, March 18, 1993)There is no typographical error. Japan accepted 2 of 32 requests. Though the acceptance rate is relatively low, more revealing is the paltry number of applicants compared to the number of applicants to the other Western countries (for example, a little calculation reveals that 29,284 aliens applied for asylum in Sweden, population 9 million). Additionally, why did so few apply for asylum in Japan--and so many apply for asylum in Europe--even though many of the asylees are from Asia? One explanation is that Western countries have much more liberal screening procedures to prove refugee status under the U.N. definition, and oftentimes allow asylum even if one does not meet the U.N. definition of a refugee. Another explanation, however, implicates Japan's screening procedures.
Japanese officials have treated applicants for asylum as "liars or criminals" and refused to identify asylum decision-makers, raising a shroud of secrecy that is "virtually unparalleled" in the world, said David Petrasek of Amnesty International's refugee office.(Ibid)
Since Japan's ICRRA went into effect on January 1, 1982, only 200 asylees have obtained refugee status in Japan out of the total 983 who applied. Of those that were rejected, 263 appealed the decisions--all were denied. (Center for Immigration Studies' "Basic Outline--Japan," p11-12) Never has an asylee's appeal to reverse a previous rejection of refugee status succeeded--ever. Japan is not internationally known as a country that welcomes refugees and asylees for resettlement. Perhaps this is the message the government wants to get across to potential asylees.
While reading the subsections that follow, which trace the history of Japan's problems with refugees and asylees, two questions should be kept in mind. The first is, how was Japan able to accept so few Indochinese refugees and asylees in the late 1970's and throughout the 1980's, relative to the other advanced industrial democracies? The second is, how is Japan able to attract and accept so few asylees relative to other advanced industrial democracies?
History of Japan's Refugee Problem Beginning in the Late 1970's
The problem of refugees for Japan goes back to the late 1970's. At that time, Indochinese, especially Vietnamese, were fleeing their countries due to war. South Vietnam had been overrun by the North in 1975. The world was scrambling to help relocate the refugees. Most of the refugees were escaping to the neighboring countries of Thailand, Laos and the Philippines while the United States was helping resettle hundreds of thousands itself. Japan, meanwhile, was quietly ignoring the situation until,
a few managed to reach Japan's shores through the fortune of being picked up by ships en route to Japan...At first, the government was reluctant to accept refugees who had been picked up at sea and brought to Japan by ships under foreign registration, but international criticism soon prompted the government to grant all refugees, regardless of the country of registry of the vessels upon which they arrived, permission to enter the country.(Saito p85)
Another account of the time (late 1970's) states that:
[Japan] hesitated to offer even temporary asylum because it lacked the proper legal and physical infrastructure and because public awareness [in Japan] of the need for action by Japan was wanting.(Takaaki p90)
According to the first account, Japan was reluctant to accept refugees until international criticism forced them to act. This is the key factor that underlies Japan's flawed policy towards refugees. The government of Japan did not offer to help these refugees at all, even granting that it had no laws to deal with them. The government didn't even want to grant them temporary asylum, as we see from the second account quoted above. The U.S. also did not have laws to deal with this new flow of refugees--but this was a crisis. The U.S. dealth with the crisis, granting permanent residence to 179, 695 Indochinese refugees from 1971 to 1980. (Immigration and Nationality Act as of May 1, 1995, p599) The U.S. next took care of its laws to take into account refugees from the developing world when it wrote into law the Refugee Act of 1980. (Ibid, p590) If there had been no international pressure on Japan to help the refugees, it is safe to say that Japan would have continued to ignore the situation, hoping others would deal with the problem and make it go away. As Colin Nickerson of the Boston Globe writes:
In the years after the communist victory in Vietnam and the beginning of the Cambodian genocide, Japan--acting under intense Western pressure--grudgingly accepted a token number of Southeast Asian refugees fleeing for their lives. Meanwhile, poorer Asian countries [to which the Vietnamese and Cambodian refugees fled] staggered under the burden of hundreds of thousands of victims of war and violent oppression.(Nickerson, Colin. Boston Globe, February 24, 1992)
This is the essential point: Japan's refugee laws and policies are not the result of the Indochinese refugee crisis, but a result of the international pressure on Japan to cooperate in dealing with the Indochinese refugee crisis. It appears that Japan's laws and policies on refugees exist more to appease the international community than to cooperate proactively with the international community. The Protocol is interpreted not in the spirit in which it was written.
To Japan-watchers, this is not surprising. Japan oftentimes does not respond to changes in the world until foreign pressure compels it to. This is known as gaiatsu, or, "foreign pressure." Furthermore, if Japan does not like the new changes, it often complies not in substance, but in form. This is the reason American trade negotiators often get frustrated in dealing with Japan. They "thought they had a commitment from Japan" until a few years later, they find Japan has not complied. Gaiatsu also explains Japan's half-hearted refugee response. Now, though, we will look deeper into the history of Japan's refugee response.
When the refugee crisis hit Japan in the late 1970's, Japan had no laws on the books concerning refugees. By September of 1979, though, Japan had grudginly taken in 32 Indochinese refugees for permanent resettlement. The quota for permanent resettlement of Indochinese refugees was made 500 (though this was later extended to 10,000). (Takaaki p90) One Japanese official at the time stated that Japan (the third wealthiest country in the world at the time),"[is] a small, poor, homogeneous country...Acceptance of the refugees would cause unemployment."(Krisher p46) As one Western reporter put it at the time,"The Japanese are so busy pursuing narrow national interests that they seem incapable of weighing the goodwill value of a humanitarian gesture." (Krisher p46)
Due to international criticism, however, Japan allowed in 5,387 refugees by 1981, all of whom were given special permission to enter Japan by the Minister of Justice, who has final authority on all immigration-related matters.(Saito p85) The special permission was granted to these refugees because the Protocol didn't go into effect for Japan until January 1, 1982.
In total, between 1979 and 1990 Japan offered permanent resettlement to a total of 6,957 refugees, almost all Indochinese (4,380 Vietnamese, 1,079 Cambodians, and 878 Laotians). (Takaaki p90) The United States, between 1981 and 1990, granted permanent resettlement to 1,013,620 refugees. Of those, 324,453 were Vietnamese, 142,964 were Laotian, and 114,064 were Cambodian. (Immigration and Nationality Act as of May 1, 1995, p599) Thus the United States admitted a total of 581,481 Indochinese refugees. Japan admitted 6,337. Keep in mind that both the U.S. population and GDP are only about double that of Japan's. Why such a divergent response to the refugee crisis in Indochina? Surely part of the reason is the United States' history of involvement in the Vietnam War. But does that alone explain why Japan accepted only 1.2% of the number of Indochinese refugees that the U.S. accepted?
It is difficult to avoid the conclusion that "Japan is not playing a global role [to help refugees and asylees] commensurate with its economic strength and is giving short shrift to human rights problems." (Watanabe, Teresa. Los Angeles Times, March 18, 1993) Japan's policy appears to be a beggar-thy-neighbor approach because when Japan does not accept its fair share of refugees, other advanced industrial democracies must shoulder Japan's responsibility. And they have--especially the United States. In fact, the U.S. Commission on Immigration Reform sponsored by the U.S. Congress recommended in 1995 that the U.S. "take leadership in generating international responses to refugee crises, with particular focus on international burdensharing and regional solutions." (U.S. Commission on Immigration Reform. "Legal Immigration: Setting Priorities--A Report to Congress, 1995.") In the past, the U.S. bore the burden of accepting a disproportionate number of Indochinese refugees because Japan would not.
Japan is not only the second wealthiest country in the world, but also the wealthiest country by far in Asia. Thus as a signatory to the Protocol Relating to Refugees, one would expect Japan to be shouldering the greater part of the responsibility for caring for refugees within the Asian region, leaving the United States to care for refugees from the Western Hemisphere (Latin America, the West Indies, etc.). Because of the minimalist approach taken by Japan, however, the U.S. shoulders the burden of absorbing refugees not only from the Western Hemisphere, but also from the Eastern Hemisphere as well. Remember that both the U.S. and Japan have the same definition of a refugee because both have signed the U.N. Protocol on Refugees.
We have seen that Japan was pressured by international criticism to accept the 6,957 refugees that it did. Nonetheless, how is the government of Japan able to avoid accepting its fair share of refugees and asylees today?
Japanese Law Regarding Refugees
In October of 1981, Japan became a signatory to the United Nations Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967). (Saito p85) The same year, it revised the Immigration-Control Act of 1951 and renamed it the Immigration-Control and Refugee Recognition Act (ICRRA). This revised Act went into effect on January 1, 1982.
According to the revised law, an Immigration Inspector, by Article 18-2 of the ICRRA, may grant an alien who has arrived in Japan a landing permit for temporary refuge if the alien comes under the definition of a refugee as defined by the United Nations Protocol. An alien may then, within 60 days of arriving in Japan (unless there are unavoidable circumstances), apply for recognition of refugee status "in accordance with the procedures provided for by the Ministry of Justice Ordinance." (ICRRA p51-52) (As we will see later, this phrase has important implications.) The Minister of Justice may then acknowledge refugee status and issue a Certificate of Refugee Status to the alien. A Refugee Inquirer may be requested by the Minister of Justice to help determine refugee status of the alien. According to Article 61-2-4, if an alien's request for recognition of refugee status is denied, he may file an objection, within seven days, with the Minister of Justice--the same Minister of Justice that has just rejected his/her request. (ICRRA p53) Not exactly an imparital third party.
According to Article 61-2-5, a person who has been recognized as a refugee may then apply for permanent residence status. Japan has granted permanent residence to 6,957 refugees since 1979, but still ahs not filled its maximum quota of permanently resettling 10,000 (though Indochinese refugees are waiting in detention camps in Hong Kons and throughout Southeast Asia waiting for a country to accept them).
The phrase "in accordance with the procedures provided for by the Ministry of Justice Ordinance" will clarify how Japan has been able to minimize its acceptance of refugees. Japan and the U.S. use the same definition of a refugee. However, Japan and the U.S. use different guidelines in determining who meets that definition of a refugee. And, those guidelines are determined by domestic laws or domestic regulations. This is how Japan manages to allow in such a small amount of refugees compared with the U.S. (or any other advanced industrial democracy) even though they all have the same definition of a refugee. The U.S. has very lax guidelines in determining who meets the definition of a refugee. Japan has very strict guidelines. Japan's guidelines are not partof the Immigration-Control and Refugee-Recognition Act. The Japanese Diet has delegated to the Ministry of Justice the right to make these guidelines.
It is worth quoting from a Japanese political science book on what exactly ministry ordinances are. "[T]here are ministerial ordinances...that serve to supplement, and thus in effect, to make laws." (Abe et al. p23) Thus the ICRRA is not really responsible for Japan's contradictory policy towards refugees. The ICRRA is straightforward and gives the impression of strict compliance with the Protocol of 1967. It is Japanese ministerial ordinances, specifically, the Ministry of Justice Ordinance that devises the guidelines for determining who fits the definition of a refugee that is responsible for Japan's unfair and contradictory policy towards refugees. Furthermore, the guidelines embodied in the Ministry of Justice Ordinance are not available for public scrutiny.
While it may be necessary for a bureaucracy to flesh out legislation, the rules developed by the Japanese bureaucracy have not only served to severely limit the number of refugees Japan accepts, but has also led to a double standard in treatment of Indochinese and non-Indochinese refugees. It is through the implementation of the ICRRA, not the ICRRA itself, where Japan is able to quietly violate the spirit of the Protocol that it signed. This is precisely why Amnesty International, in its report on Japan in March of 1993, urged the formation of a public and independent body to decide asylum claims. (Watanabe, Teresa Los Angeles Times, March 18, 1993)
Before 1989 (the year when "boat people" began to arrive en masse on the shores of Japan), Japan applied the liberal guidelines set by the United Nations High Commissioner for Refugees (UNHCR) to judge whether Indochinese refugees and asylees met the definition of a refugee. (Takaaki p90) The UNHCR guidelines are liberal because:
Circumstances enountered by refugees--for example, where war or other disturbances prompt huge numbers of people to flee at the same time--make it impossible to judge whether each individual fits this definition. This is why the UNHCR assists displaced persons, even though they may only loosely fit the definition. (Takaaki p90)
Arrival of Boat People in 1989 and Change in Japan's Screening Procedures for Indochinese Refugees
Japan applied the liberal UNHCR guidelines for refugees before the "boat people" began to arrive in 1989. When the boat people started to arrive on May 29, 1989, Japan went into a frenzy. This was the first time that refugee boats had reached their shores directly. Before that, refugees were picked up on the high seas by foreign-registered vessels and brought to Japan. With the liberal UNHCR guidelines, Japan would have to grant all these boat people refugee status. In 1989, a total of nearly 2,900 boat people arrived. (Ibid p89) Japan soon found out, however, that many of these assumed Vietnamese refugees were in fact Chinese trying to pass as Indochinese refugees.
Japan did, of course, grant these boat people landing permission for temporary refuge, but this did not mean that Japan recognized them as refugees. They were just granted temporary landing for refuge so their true status could be examined.
On October 6, 1989, Japan signed a memorandum of understanding with the UNHCR to the effect that all Indochinese boat people who arrived on or after September 13, 1989 would be screened in accordance with the terms of the International Conference on Indochinese Refugees and Asylum Seekers that was held in June of 1989 and that Japan had signed. This International Conference worked out tough screening measures for future Indochinese refugees and asylees. Thus, though Japan had normally applied the liberal UNHCR guidelines to Indochinese refugees, it was now able to tighten screening procedures for boat people arriving after September of 1989.
Of the nearly 2,900 boat people that arrived from China and Vietnam, 2,425 were deported by 1991. (Center for Immigration Studies p12) The Chinese arrivals were assumed to be economic, not political refugees. Most signed papers stating that they had come for jobs, though many question whether the Chinese understood what they had signed. Nevertheless, there was one Chinese named Lin Guizhen, who after arriving in Japan aboard one of the boats that reached Japan in September of 1989, actually did apply for political asylum (i.e. refugee status). She claimed to have taken part in pro-democracy protests in her home province of Fuzhou in May of 1989, the same time that protests were occurring in Tiananmen Square. The Ministry of Justice assumed, however, that because she reached Japan in the same boat with Chinese economic refugees, that she must be an economic refugee as well. They ignored her pleas to the contrary. She was deported back to China in August of 1991, despite international criticism. In January of 1992, a Japanese journalist, following up the story, reported that Lin Guizhen was arrested immediately upon her repatriation. She was then imprisoned. Chinese officials confirmed that she was undergoing "reeducation with labor" in her home province of Fuzhou. (Nickerson p1,4) Japan's Ministry of Justice was both defensive and embarrassed.
The number of boat people arriving in Japan did drop off significantly after 1989. Only 374 arrived in Japan seeking refugee status in 1990. (Ibid) Japan had made it abundantly clear that unless there was incontrovertible proof that one was a legitimate political refugee, Japan would not grant refugee status. According to Haruo Iwakura of the Tokyo branch of Amnesty International:
Compared with other democratic countries, Japan shows little compassion for genuine political refugees and small regard for human rights...The government has bureaucratic barriers that make it almost impossible for legitimate political refugees to gain asylum.(Ibid)
It is reasonable for Japan to apply the guidelines established by the International Conference of June, 1989 for screening Indochinese refugees. However, when boat people who arrived in Japan in 1989 were discovered to be Chinese, Japanese officials assumed they were all economic refugees, even though the Tiananmen Square Massacre had occurred just a few months previously in June, 1989. Japan should have carefully screened each of the asylees rather than have assumed that since most were economic refugees, all were economic refugees.
Today there are more than 36,000 Indochinese boat people in camps throughout Southeast Asia. Though most have been screened for refugee status, only a few thousand meet the strict U.N. definition. (Jenni Meili Lau, Washington Times, March 8, 1996) As Saito Yasuhiko, former Japanese delegate to the UNHCR, suggested in 1990, though still unfulfilled now in 1996:
Not having yet filled its acceptance quota [of permanently resettling 10,000 refugees], Japan should consider relieving Hong Kong of some of the refugees there. What could be a finer gesture of friendship and cooperation than for Japan to offer to share the refugee burden of its Asian neighbors? (Saito p86)
Discrimination Against Non-Indochinese Refugees
Japan applies screening procedures established by the International Conference of 1989, for Indochinese refugees, but its own screening procedures and guidelines, drawn up by the Ministry of Justice in its Ministry of Justice Ordinance, for non-Indochinese refugees (Chinese, Afghanistanis, Pakistanis, etc.). The screening procedures and guidelines are secretive. Though the screening procedures Japan uses to screen Indochinese are known and accepted, the procedures Japan uses to screen non-Indochinese are unknown--this allows for arbitrary judgment by the Japanese Ministry of Justice.
Most non-Indochinese refugees are not in the news often enough for people to be aware of Japan's discriminatory policies towards them. Unfortunately, only international criticism will get Japan to reform its discriminatory guidelines used for screening non-Indochinese refugees. While it is not objectionable that Japan creates its own guidelines for screening non-Indochinese refugees, apparently they are so strict that it is almost impossible for these refugees to be recognized as such.
Most refugees do not simply want temporary refuge, but permanent resettlement. This may explain Japan's reluctance in granting refugee status. According to Article 34 of the Protocol of 1967,"Contracting states shall as far as possible facilitate the assimilation and naturalization of refugees." Japan could have made a reservation with regard to this article and thus have precluded the necessity to resettle refugees permanently. However, Japan accepted Article 34. It is highly likely that this article explains Japan's strict guidelines on screening non-Indochinese--if they grant refugee status, this means permanent residence is a foregone conclusion.
Between 1982 and October of 1989, Japan recognized only 38 non-Indochinese aliens as refugees.(Saito p86) When Japan signed the U.N. Protocol in 1981, it agreed to Article 3 which states,"The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion, or country of origin." (Immigration and Nationality Act as of May 1, 1995, p463) Technically Japan is abiding by this since it does use the same definition of refugee for all people, but it clearly uses one set of screening procedures for Indochinese whcih are known and acceptable, yet another set of stricter screening procedures for non-Indochinese refugees which are largely unknown. Though Japan may be following the letter of the Protocol, it is clearly disregarding the spirit of it.
According to Ito Kazuo, a lawyer with the Japan Civil Liberties Union, for non-Indochinese, proof that one is a refugee must be supplied by the individual, even though testimony by the individual is not admitted.(Takaaki p92) Again, the exact requirements and procedures for granting refugee status are secretive, but according to Ito Kazuo, concrete evidence, such as documentation of membership in antigovernment organizations, is demanded. As staff writer for the prestigious Japanese daily newspaper, the Asahi Shimbun states,"Japan's stance amounts to a de facto exclusion of [non-Indochinese] refugees."(Takaaki p92)
It appears also that politics interferes with the right to gain refugee status in Japan. Many Chinese students in Japan at the time of the Tiananmen Square protests of 1989 sent money and messages of support to the student protesters in Beijing. Fearing return to China when their student visas expired, many applied for political asylum (i.e.refugee status). They were all rejected--so were all appeals.
But the Chinese dissidents in Japan were not sent back to China despite the rejection of political asylum. Apparently, Japan di not want to send the students back to be persecuted, but at the same time did not want to grant political asylum which would have have been an affront to China. Toshiki Kaifu, Prime Minister of Japan at the time, was the first leader of an advanced industrial democracy ot visit China after the Tiananmen Square Massacre of 1989. Kaifu visited China in the summer of 1991 in order to get trade between the two countries flowing smoothly once again. Therefore Japan, though denying political asylum, quietly gave the Chinese dissidents a six-month via with the vague residence status of "designated activities" (see Table 1 in Appendix). This is the status that the Minister of Justice grants to aliens at his discretion. But the discretionary aspect of the visa is precisely what worries many of the Chinese dissidents.
One of the Chinese dissidents, Zhao Nan, stated,"When I apply for an extension of my visa, the immigration officer could say that conditions have changed in China, claim that it's safe for me to go back and refuse to renew my visa." (Jameson, Sam. Los Angeles Times, March 10, 1995) In other words, the stability and peace of mind associated with holding a Certificate of Refugee Status is denied the Chinese dissidents in Japan because Japan fears offending China.
What must change in Japan's policy towards non-Indochinese refugees and asylees is the secrecy of the guidelines used to screen the applicants. According to Makoto Iwai of the Japan chapter of Amnesty International, government secrecy conceals the way applications for political asylum are handled. (Jameson, Sam.Los Angeles Times, March 10, 1995) If there were clear, systematic, and open procedures for determining refugee status, then such politics being played with the lives of Chinese dissidents and others wouldn't be able to occur. Perhaps, however, politics is precisely why Japan's procedures remain in the dark--secrecy allows for arbitrary judgment.
It is 1996 and Japan has not changed its guidelines that discriminate against non-Indochinese refugees. Japan will only change if there is gaiatsu, or, foreign pressure. Probably the reason there has not been enough foreing pressure is because most people do not understand Japan's policies. This is for two reasons. First, most people are not too concerned about what Japan does if it is not in the realm of economics. Second, supposing one had an interest, Japan's policies are very complex and difficult to decipher.
Perhaps another reason there has not been much criticism of Japan's refugee-recognition procedures is because the current United Nations High Commissioner on Refugees is Japanese--Sadako Ogata. There is no record of Commissioner Ogata having criticized Japan's secretive procedures for granting refugee status to non-Indochinese refugees and asylees. While Commissioner Ogata did criticize the specific instance of Japan's deporting Lin Guizhen back to China, there was no criticism of the arbitrary procedures used which led to that deportation, and which will lead to the deportation of many more.
Japan needs to end the discrimination against non-Indochinese refugees. Japan uses strict, but legitimate, screening procedures for Indochinese. Japan needs to make transparent its current screening procedures for non-Indochinese. As former Japanese delegate to the UNHCR, Saito Yasuhiko, stated in 1990, though still unfulfilled in 1996,
If Japan is to be just and objective in its screening of refugees, however, it must conform to the UNHCR guidelines. This is the only way to forestall both international and domestic criticism that Japan's refugee processing procedures are unfair and biased. (Saito p86)
There were as many as 563,681 unskilled foreign workers in Japan as of 1992--of those, 292,791 were illegal. (Shimada, p20,23,26. The total for unskilled foreign workers comes from adding those present in Japan with the statuses of trainee, college student, pre-college student to the number of Japanese-descended South Americans in Japan and to the number of estimated foreigners staying in Japan illegally. The reasons for the use of the above categories in determining the number of unskilled foreign workers in Japan will become clear later in the section.) The presence of the illegal foreign workers is what most commentators and most Japanese see as "the problem." But this really is not the problem. The presence of illegal foreign workers is a symptom of an underlying problem. This underlying problem is that Japan has and will, for the forseeable future, have a need for unskilled labor which cannot be met by domestic supply. However, the rest of Asia, as it is developing, has a surplus of unskilled workers who are attracted by Japan's high wages.
This section will look at the problem discussed above and also at the major symptom of that problem, namely, the presence of illegal foreign workers. There are some fundamental questions that will need to be addressed. When did this need in Japan for unskilled labor become so acute? Why did it become so acute? Will the need continue into the near future? Why does the government rebuff any suggestion to officially allow in unskilled foreign workers through a guestworker problem which would fill Japan's demand for unskilled labor? When and why did foreign unskilled (including illegal) labor become a de facto, partial solution for many Japanese businesses? How has the government responded to the need for unskilled labor by Japanese businesses? Finally, how has the Japanese government dealt with the growing presence of illegal unskilled foreign workers?
In the early 1970's, Japan began to experience a shortage of unskilled labor. Many companies suggested that the government deal with the shortage the way Germany had--introduce a guestworker program to bring in unskilled foreign workers. The government refused. The labor shortage didn't last long though. The energy crisis in 1973 sent oil prices skyrocketing inducing a recession. Large Japanese companies responded by making their factories more efficient so they could rely less on unskilled labor. (Martin, International Migration Review 25, No.1 [Spring 1991] p177) Thus the Japanese have the most automated assembly lines in the world. The cry for foreign labor halted.
However, in the late 1980's, there was again a shortage of unskilled labor. This was partly due to the booming Japanese economy. Most presumed that as the economy ran through its cycle, from peak to trough, the shortage of unskilled labor would diminish as it had in the early 1970's. The economy did slow down--abruptly--when the bubble economy of Japan burst beginning in 1990. The shortage of unskilled labor, however, continued in many sectors of the economy. Though Japan has yet to emerge from the recession begun in 1990, the number of unskilled foreign workers in Japan, both legal and illegal, has continued to grow. Clearly, the economic challenges Japan faces are not merely cyclical, they are structural. Thus the shortage of unskilled labor persists, because it is a structural shortage of unskilled labor, not a cyclical one.
All the highly-developed economies of the West have reached the stage where a structural need for unskilled labor has surfaced. This stage results from two fundamentally different causes: a declining birthrate layered on an aging population; and a structural move of the economy from manufacturing to service with natives demanding the high-paying service jobs. The first cause holds for Japan already while the second cause is becoming more and more prominent.
There is a well-known correlation between economic development, and a declining birthrate. Japan has been no exception. In 1992, the total fertility rate was 1.50--well below replacement levels. (Shimada p181) The significance of a declining birthrate to business is that the proportion of the population that reaches nonproductive age (generally considered to be over age 65) will increase considerably (though it will eventually stabilize) and the absolute size of the work force will shrink in the long term. Japan's current work force is 65 million, but is expected to peak at 66.11 millionin the year 2000 and then decline thereafter. (Shimada p18 and 183-184) This presents a major problem for Japan--at least in the short term, because if the work force is shrinking, and the economy is growing and demanding more labor, there will be a mismatchof supply and demand.
Of course Japan can alleviate the problem in the long run, without introducing foreign labor, by introducing natalist policies--that is, policies that encourage Japanese women to bear more children (tax breaks for more children, providing day care to Japanese working moms, etc.). Japan is considering this, but in the short run, there will still be a labor shortage if the economy continues to expand while the labor force remains stagnant and eventually shrinks.
One might be tempted into thinking Japan could obviate the need for unskilled labor as it did in the 1970's, by innovating technologically.But this solution has its limitations. Certainly, Japan has many small and medium size firms that subcontract to larger companies and are generally inefficient. Rationalizing these firms will indeed reduce some of the need for unskilled labor. This will, however, entail much restructuring in the Japanese economy. Presumably, rationalizing these firms means getting rid of the most inefficient ones. Their small size is precisely what prevents them from rationalizing--that is, from obtaining economies of scale. What good is it to buy a two million dollar piece of equipment if you cannot get a proper return on it due to limited physical space and a limited number of workers? In other words, large conglomerates will have to emerge from these fragmented, small businesses. In the short term, the major dislocation in the Japanese economy is inevitable.
Major changes will have to occur in the Japanese economy in order to partially offset the need for more unskilled labor. But even supposing that Japan undergoes the major structural reforms of rationalizing small and medium size firms, there will still be a need for unskilled labor because Japan is moving from a manufacturing-based economy to a service-based one. Manufacturing is moving offshore inducing the hollowing out of Japan's economy, as has already happened in the West. Paying high wages to Japanese factory workers makes no sense when you can pay low wages to Asians overseas. Thus primarily service jobs will remain at home. The Japanese will be willing to take the high-end service jobs, becoming engineers, accountants, and managers. But the Japanese will shun the low-end service jobs, leaving a dearth in Japan of food service workers, janitors, window-washers, construction workers, and other such manual jobs. If Japanese won't do these jobs because, as one older Japanese has stated,"young Japanese...complain when asked to do even slightly arduous labor," then who will? (Watanabe p49)
You can reduce the number of people in these service-oriented, manual jobs to a minimum, but you can't do away with them. There will be a point when trying to replace humans by technology increases marginal factor cost above marginal revenue product, which is not economical. In the U.S., the answer to who does the low-end service jobs in our economy is basically,"immigrants do."
Some have suggested that Japanese housewives, and retirees who want to supplement their pension will do this low-end service work. This is hardly a serious suggestion. Certainly Japanese women are underutilized and could be brought into the labor force--but will they want to take the lowest-level jobs? Will Japan accept the criticism, both domestic and international, when men call the shots while women scrub the floors in the offices and wait tables at the restaurants? Nor does the idea of strong, young people being replaced at construction sites by over-65's donning hardhats sound appealing. While this author used to pass daily a very old fellow at a construction site in downtown Tokyo, he was guiding the pedestrians while the young workers were drilling and hammering and welding. What will happen when there are fewer young workers in Japan and most of them are doing managerial work, etc.? Then answer seems obvious--foreign workers. In fact, in May of 1990, the Japan Food Service Association recommended that the government admit about 600,000 foreign workers into Japan to work for two or three year shifts. And in 1992, Yasuo Satomi, president of Taisei Corporation, proposed in a speech:
As we move towards the 21st century, Japan's working population is no longer growing, and society as a whole is aging. This evolution is happening in the midst of rapid changes in our industrial structure, with growth in the service and software industries.The future will see even more severe shortages of manpower, especially in the service industries...as a result, the number of foreign workers Japan can admit...would be slightly less than 1% of its total population, about 1 million workers.
Though many businesses have recommended the adoption of a guestworker program, the government has refused. The government of Japan refuses to institute a guestworker program because it fears that some foreign workers would settle in Japan permanently and help create many of the social problems presently common in the West. The Japanese government would not deny that an ideal guestworker program where foreigners come to do unskilled work for two or three years and then go back home to be replaced by a new shift of workers (rotation of foreign workers) is wonderful. It is the actual way guestworker programs have worked, so the government argues, that prevents Japan from enacting its own.
A problem that occurred with the guestworker program in Germany is that many guestworkers don't want to return home. They stay, and then bring their families, so that Germany now has a foreign population exceeding 5 million people. "Look at Germany's problems with all those Turkish workers," said Shoichi Ikuta, chief of industrial planning at MITI, in February of 1992. This is the crux of the matter for Japan and why Japan does not solve its shortage of unskilled labor by admitting foreign workers. The following passage from the Far Eastern Economic Review may help allay the fears of some Japanese that foreign workers would settle permanently in Japan:
There is no great "Japanese Dream" among migrant workers. Those who come to Japan do not expect to stay long term, or even to be welcome. The attraction is purely monetary. According to Ray Ventura, author and former illegal worker in Japan, migrants divide the countries in which they work into two distinct categories: the welcomers and the stonewallers.
The former, countries where a worker would like to settle with family, include the United States, Canada and Australia. The Middle East, Hong Kong and Japan hold out no such hopes. (Russell p54)
In this author's view, Japan could enact a guestworker program that comes very close to the ideal previously mentioned. Japan can take Germany's guestworker program as a model, and develop a better one. Germany eventually allowed millions of Turkish workers and their families to resettle because the treaties that it signed--various European Community treaties and International Labor Organization treaties--constrained its ability to repatriate foreign workers and its ability to prevent the families of foreign workers from coming over. Japan could enact domestic laws that respect the basic rights of foreign workers, yet at the same time avoid signing entangling international treaties with excessive demands that limit its sovereign ability to protect and preserve its nation.
There are two essential arguments, however, that the Japanese government has against a guestworker program. The first is that foreign workers may settle permanently in Japan and thus cause many of the social problems common in the West. The second is that the demand for unskilled labor can be alleviated by internal means, namely by rationalizing small- and medium-sized firms, and by hiring more housewives and retirees. It is these two faulty arguments with which the government justifies its decision not to institute a guestworker program. Perhaps the government would prefer to have the problem--the unfulfilled demand for unskilled labor--rather than the solution--admitting foreign workers to Japan. The Japanese people may very well prefer lower economic growth without foreigners to higher economic growth with foreigners.
The following subsection will show that the Japanese government cannot only look at the demand side of labor. The reality is that foreign workers have, and will continue to come to supply Japan with unskilled labor. Japan can either pretend the problem doesn't exist--which will exacerbate the current debacle--or it can develop laws and policies to deal with the reality of foreign workers. There is an enormous supply of unskilled labor throughout Asia and foreign workers' push and pull factors cannot be ignored.
Push and Pull Factors that Attract Foreign Workers to Japan
We have primarily discussed Japan's need for unskilled workers and how foreign workers can and do fill that need. But it is also important to discuss what drives the foreigners to work in Japan. There are both push and pull factors at work. That is, there are reasons that foreign workers are drawn to Japan (pull factors) and reasons that foreign workers leave their countries to find work (push factors).
There are basically two pull factors involved here. One is that Japan has a need for unskilled workers. If Japan did not have a need for more unskilled workers, unskilled foreign workers could come to Japan, but they wouldn't find work. Succinctly, Japanese employers, given their preference, would hire Japanese unskilled workers over foreign unskilled workers. But the present situation is such that there are few Japanese who want to do unskilled labor. Japanese employers simply have no choice--if they want the work done, they must hire foreign unskilled workers. So we've established that there is work available for foreign workers to do. This is the pull factor.
The second pull factor, related to the first, is that wages in Japan are much higher than any other country in Asia, even for unskilled labor. Advanced economies naturally have higher wages. In fact, in 1994 Japan had the highest per capita GNP in the entire world. But earning yen is particularly beneficial for othre Asians because the yen is so strong in the currency markets. In 1985, the Plaza Accord devalued the dollar causing the yen to rise 100% against the dollar in one year. (Shimada p33-34) Since then, the yen has continued to strenghthen. In 1994, the yen reached a post-WWII high against the dollar--a dollar could be bought for less than 100 yen. As most Asian currencies are linked to the dollar, a stronger yen has meant that when a foreign worker converts their yen earnings into their homeland's currency, they gain--that is, they can obtain more of their home currency with less yen due to the favorable exchange rate.
Looking at the two pull factors, an image begins to emerge of Japan as a huge magent drawing foreign workers from all around Asia. However, there are also push factors that are involved. The push factors that operate to push unskilled workers from their homelands are essentially the diametric opposites of the pull factors. That is, it isthe dearth of job opportunities and the low wages that drive these workers to seek opportunities elsewhere. It must be understood that push and pull factors complement each other. If there were no better place to work, the push factors of having no jobs and low wages would have no meaning because their would be no place to emigrate to.
Push and pull factors, for all their significance, do not operate outside of politics. There are many unskilled laborers throughout Asia who would like higher wages, yet cannot head to Japan. In China alone, there is a "floating population" of about 100 million people. (Lieberthal p451. Floating population refers to the number of people who have left the interior regions of China for the coastal regions with the hope of finding work.) Who are these people that actually leave their homeland to find work in Japan, whether legally or illegally? As social commentator Toshio Watanabe describes them, they are "exceptionally motivated young people" with such a "firm determination to get ahead that they [are] willing to face the trials and tribulations of life in a country with a reputation for its closed character..." (Watanabe p48)
The government of Japan downplays the reality of the pull factors--that Japan has a demand for unskilled labor that foeign workers are willing to satisfy.With regard to the push factors, the Japanese government hopes to resolve the exodus of workers to Japan by helping the developing countries of Asia improve their standard of living. In the long run, this is the correct policy because it will eventually diminish the push factors--lack of jobs and low wages. But in the short run, the outflow of workers to Japan will increase precisely because the Asian countries are developing economically. Toshio Watanabe provides a good explanation. "The bulk of the emigrants are coming from places where dynamic growth has been rapidly boosting living standards [China, South Korea, etc.]" and this is because "expectations have been rising faster than the standard of living."(Watanabe p47-48) Thus until all these Asian countries are fully developed, there will continue to be a large supply of workers throughout Asia, some of whom will be motivated to find work in Japan. The push factors will not go away for a long time to come. The Japanese government must be cognizant of that.
Having looked at the growing need for unskilled labor that became acute in Japan in the late 1980's, the government's refusal to institute a guestworker program, and the push and pull factors involved, we are now ready to look at the de facto existence of unskilled foreign workers in Japan, both legal and illegal, since the late 1980's. This will involve a discussion of the revision of the Immigration-Control and Refugee-Recognition Act (ICRRA) that occurred in December of 1989 and that was implemented in June of 1990.
The revision of the ICRRA took place partly in response to the growing problem of illegal foreign workers in Japan in the late 1980's. However, the ICRRA revision was also designed to increase the categories under which a skilled foreign worker could enter Japan, and at the same time, streamline the process. Interestingly, Japan does allow in skilled foreign workers legally. If you look at Table 1 in the Appendix you will see that the first sixteen residence statuses are all categories of skilled work (diplomat, official, professor, artist, etc.). However, the total number of skilled foreign workers in Japan as of December 31, 1992 was less than 90,000 (see Table 2 in Appendix), which is very small considering that the work force in Japan is 65 million.
It is necessary to note, however, that Japan includes "entertainer" in the skilled work category. Entertainers account for about one-fourth of the skilled foreign workers in Japan (22,750 in 1992, see Table 2)."Entertainer" is the single largest category out of all the sixteen skilled labor categories in the ICRRA. "The majority of these people are singers and dancers working in the red-light districts, most of them women from the Philippines." (Shimada p15) Indeed, the figure of 22,750 entertainers is only as of December 31, 1992. There is much turnover throughout the year. Thus in 1991, 89,572 entertainers arrived in Japan, 56,851 of them from the Philippines, most of them women.(Yamanaka p87) In addition,"these activities [entertainment activities] also happen to be important sources of revenue for yakuza (mob)-affiliated employers."(Yamanaka p82) This is the dark side of the euphemistic legal category "entertainer."
When the ICRRA was revised in 1989, though, it was mainly for the purpose of stemming the growing tide of illegal foreign workers in Japan--especially men. If you look at Table 3, you will notice that prior to 1988, most illegal workers apprehended in Japan were women--primarily female prostitutes from the Philippines. (Illegal workers are those foreigners engaged in activities not permitted by their residence status plus those who have overstayed their visas and are engaged in activities not permitted by their residence status.) In 1988, however, men, primarily engaged in construction and factory work, began to outnumber women apprehended as illegal workers. (see Table 3) When the government saw this trend developing, the ICRRA was revised in 1989. Male illegal workers now well outnumber female illegal workers. In 1991, 25,350 of the 32,908 illegal workers apprehended were men. (see Table 3) It is curious that the government began to clamp down hard when illegal male workers began to exceed illegal female workers. The explanation of this appears to be the following. Women working illegally in the entertainment sector could be tolerated because their presence was limited and the effects to the Japanese economy negligible. However, the presence of foreign men as unskilled laborers meant that Japanese industry was becoming dependent upon cheap foreign labor. Many social problems would arise if men brought over their families and stayed permanently.
Hence, the revision ofthe ICRRA in 1989 clamped down on the problem of illegal workers by legislating penalties for those who knowingly employ illegal workers and those who broker the employment of illegal workers (three years imprisonment or two million yen fine [about 20,000 U.S. dollars] under Article 73-2). There was also a penalty for illegal workers--one year imprisonment or a two hundred thousand yen fine (about 2,000 U.S. dollars), under Article 73. Many illegal workers immediately turned themselves in, only to find out that the law applied to those arriving after June of 1990. Two items were noticeably absent from the revision. The revision made no provision for the basic human rights of illegal foreign workers that Japanese small businesses were becoming increasingly dependent upon, and it made little provision for the legal entry into Japan of unskilled foreign workers.
In Table 4 in the Appendix, you'll notice that despite the tough penalties in the ICRRA, the number of illegal workers in Japan continued to rise yearly, from about 100,000 in mid-1990 to about 300,000 by the end of 1992. (Illegal workers apprehended [the statistics of which are in Table 3] are only a fraction of the actual number of illegal workers. The Immigration Bureau of the Ministry of Justice estimates the total number of foreigners overstaying their visas by looking at the immigration and emigration statistics. Presumably, most of those overstaying their visas are working in Japan illegally.) Apparently, the penalties in the ICRRA did nothing to stem the tide of foreigners seeking work in Japan. This is not just because the Immigration Bureau, with a limited staff of under 3,000, can only find about ten to twenty employers annually. (Martin, Migration World 22, No.1 [1994] p10) Nor is it because most illegal workers caught are not prosecuted but simply deported because of linguistic as well as other legal complications. (As Americans have said about Prohibition,"If you can't enforce it, don't legislate it." The same applies to Japan with regard to foreign unskilled labor.) The primary reason why the law has failed to prevent the growth of illegal workers is because it ignores the fundamental problem--Japan needs unskilled labor and the rest of Asia is willing to supply it. Only by dealing realistically with this problem can the illegal foreign worker dilemma be solved.
Illegal workers do not come in as illegal immigrants. Japan does not really have an illegal immigration problem like the United States does. This is because it is an island nation. In 1992, the number of illegal immigrants (those who enter without a valid passport) and illegal landers (those who come ashore without permission) was estimated at 4,032 people. (Shimada p24) The United States is estimated to have had two to three million illegal immigrants present in the country in 1993. (Brimelow p33) But how do the estimated 300,000 illegal foreign workers (in 1992) in Japan get into the country? Most illegal workers enter legally with a 90-day tourist visa. They usually overstay their alloted time period, and, rather than tour, they work. (Because of the growing number of Pakistanis and Bangladeshis coming to work illegally in Japan, but claiming to be tourists, the visa exemption agreements with those two countries were cancelled in 1989. Because of the same trend with Iranians, the government cancelled the visa exemption agreement with Iran in 1992.) Sooner or later, though, they leave either of their own accord or are apprehended and deported.
The Japanese government has, though, made one major exception to its ban on unskilled foreign workers. It made a provision since 1990 to allow descendants of Japanese emigrants, down to the third generation, into Japan to live and work. They get the status of "long-term resident" which permits them to live and work in Japan for up to three years (though they can apply to renew the time period). These nikkei (Japanese emigrants and their descendants), basically come to do unskilled work. Most come from South America, rather than the U.S., because the economies there (Brazil, Peru, etc.) are still developing and wages are low.(Interestingly, I saw no specific mention in the ICRRA of allowing in the descendants of Japanese emigres, unless it was buried in obscure language. All secondary sources that I've referenced, though indirectly pointing to the revision of the ICRRA in 1989, give no clear indication of where this provision was made. I must assume that the provision was made in a ministerial ordinance, announcement, or notification to "flesh out" the revisions made in 1989.) The number of South American workers of Japanese descent in Japan has skyrocketed from 8,450 in 1988 to 148,700 in 1991. Of the 148,700 in 1991, roughly 120,000 are from Brazil, while the rest are from Peru, Argentina, Bolivia, and Paraguay. (Shimada p23)
The nikkei are flocking to Japan because wages are so high. Though they earn many times what they could earn in South America, they are still basically relegated to doing the "3K" jobs--kitanai, kitsui, and kiken (dirty, difficult, and dangerous). Many nikkei are actually recruited by brokers (often the yakuza), who then demand a percentage of their pay. (Jones p4, Goozner p19) In one survey, barely a majority (50.3%) wished to stay permanently in Japan. (Jones p4. Survey of 182 respndents in Oizumi, Japan by Professor Toyoie Kitagawa of Toyo University, 1990) The rest hope to simply make money in Japan for a few years, and then return home. As many articles have pointed out, these nikkei face much discrimination in Japan. One nikkei stated,"It's very good for work, but it's no place to live. Japanese people are cold." (Goozner p25)
The spokesman for the Immigration Bureau stated in 1992,"Having cultural and family ties deserves [special treatment]. If we treated them [nikkei] the same as we treated people from Bangladesh or Iran who have no families here, that in our minds would be unfair." (Goozner p19) It is ironic, however, that this humanitarian gesture was made just as the need for unskilled foreign workers was becoming acute. The exception made for unskilled nikkei tends to confirm the hypothesis that, while the government acknowledges a demand exists for foreign unskilled labor, a full-scale guestworker program is avoided because of fears that non-ethnic Japanese might settle in Japan permanently.
There are two other "back door" methods by which Japanese businesses can obtain unskilled foreign labor legally. One is using the labor of students and the other is using the labor of trainees.
College students and pre-college students (those in language or vocational schools) are allowed to work up to four hours a day in order to meet living and tuition expenses.(Yamanaka p81) Most work as waiters/waitresses, dishwashers, janitors, or do other low-end service work. At the end of 1992, there were 56,309 college students in Japan and 46,644 pre-college students.(Shimada p22) Though there are fewer pre-college students, they are more likely to break the law and work more than the stipulated limit of four hours a day. Most are Asian, particularly Chinese. It has been found that brokers who are trying to bring in illegal foreign workers will use language schools as fronts to do so. ("Alien Concept," The Economist [Dec 3, 1988] p39) As Philip Martin, professor at the University of California at Davis states:
In some cases, labor recruiters sign up Chinese or Korean 20 to 30 year-olds for Japanese language training and then put the students to work as soon as they arrive in Japan. These students want to work in Japan, and usually see the tuition payment as the price of getting into Japan to work.(Martin, International Migration Review 25, No.1 [Spring '91] p179)
There is less of a problem with college students.
The other method through which Japanese businesses can obtain unskilled foreign labor legally is by using trainees. It is the trainee program that many believe is becoming Japan's disguised guestworker program. Prior to 1993, Japan admitted trainees into Japan ostensibly to assist developing countries. About half the trainees before 1993 went to large companies that have over 1,000 employees. (Komai p13) These companies, though admittedly training foreigners, are likely doing so to provide experienced foreign employees in their overseas branches. (Komai p17) However, it is the small- and medium-sized firms that are suspected of not training foreigners at all, or if so, much less than what the government demands. These small- and medium-sized businesses are suspected of blatantly abusing the program as a means to obtain cheap foreign labor.
The number of trainees in Japan has been rising steadily. Though only 9,973 foreigners entered Japan with the residence status of trainee in 1982, 43,627 did so in 1992. (Shimada p22) When small- and medium-sized businesses asked for more trainees, the Ministry of Justice changed the rules in August of 1990 to allow enterprises with less than 50 workers hire up to three trainees each.(Komai p17, Shimada p70) This can be interpreted two ways: there was a spurt of humanitarian concern by small- and medium-sized business owners interested in helping developing countries; or, these owners were interested in cheap foreign labor.
Trainees are supposed to attend lectures one-third of the time, and obtain "work-experience" for the other two-thirds. Since trainees are supposedly not doing work, but are 'training', they are not given normal wages, but a small "training allowance." The loopholes for abuse are compelling. As Haruo Shimada, Japanese expert on Japan's foreign worker problem has stated,"the 'trainee' system has always been something of a charade." (Shimada p69)
In April of 1993, there was an important notification put out by the Ministry of Justice. It changed the trainee system to a more realistic "skills work-training system," or more clearly, a "work-and-learn program." (Martin, Migration World 22, No.1 [1994] p10;Shimada p73-75) Though the Japanese government still wants the program to officially remain a trainee program, in practice it is a quasi-guestworker program.
The program works as follows. A foreigner goes to Japan as a trainee through some quasi-governmental organization such as the Japan International Training Cooperation Organization (JITCO, established in 1992). The foreigner receives training for a few months in Japan, usually at the business that is sponsoring the trainee. Then in order to move on to practical training (i.e. work), the trainee must apply to JITCO to obtain certificaiton that they have reached a particular level of proficiency. Then their status will be changed from "trainee" to "designated activities"--which is a special status of residence that the Ministry of Justice uses at its discretion. The trainee can then legally work in Japan and obtain the full wages as a worker under a contract drawn up by the business at which the trainee will work. The total period that the trainee may stay in Japan is two years. Furthermore, in order to avoid Germany's mistakes, trainees are not allowed to bring their families with them.
According to Philip Martin of the University of California at Davis,"...current government plans envision the number of foreign trainees expanding to 100,000 new entrants annually. However, business leaders talk of many more trainess--at least 400,000 to 500,000 in the 1990's." (Martin, Migration World 22, No.1 [1994] p10)
Surely, the government of Japan has come a long way in dealing with the fundamental problem that it faces--a demand for unskilled labor that cannot be met by Japanese given current conditions and trends in Japan's demography, and a huge supply of unskilled labor throughout Asia willing to fill that demand. By instituting the "work-and-learn" program, the government was recognizing the fact that it could not continue to ignore the push and pull factors that were operating irrespective of the prohibitory laws it enacted. If this new "work-and-learn" program alleviates the fundamental problem of a demand for unskilled labor, then it will have been a monumental success. If it does not, the symptoms--illegal foreign workers in Japan--will continue to surface. As it has been less than three years since the program was introduced, the jury on this issue is still out.
It is important to look at Japan's immigration laws and policies in the context of how Japan views its nation. The way Japan views its nation has important implications for how it deals with all forms of permanent immigration--discretionary immigration, admittance of refugees and foreign workers. Japan's ethnic