FACULTY OF LAW Stockholm University

Japan and the Convention on the Elimination of All Forms of Discrimination against Women

- Implementation and Enforcement pertaining to Sex Discrimination in the Labour Market

Maja Sato-Nilsson

Thesis in International Law, 30 HE credits Examiner: Mona Samadi

Stockholm, Autumn Term 2018

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Abstract

The present study examines the status of the UN Convention on the Elimination of All Forms

of Discrimination Against Women (CEDAW) in Japan, with due regard to the status of

treaties in general as sources of rights and obligations in the country. Further, the study aims

to ascertain whether the said Convention has been properly implemented and enforced, and

to demonstrate obstacles causing deficiencies and shortcomings in regards to combating

discrimination against women in the labour market. In theory, treaties enjoy a high status in

Japan, however, human rights treaties are rarely directly applied by the courts. Although

certain legislative reforms have been undertaken to bring domestic law into harmony with the

CEDAW, the Convention has had a limited impact. The domestic legislation fails to prohibit

all forms of discrimination against women and the prohibitions, as well as the statistical

targets for female representation, lack the backing of an effective enforcement mechanism.

Additionally, the Japanese judiciary has been reluctant to accept arguments based on the

CEDAW and, so far, no litigants have prevailed explicitly on the grounds of the Convention.

The vague wording of the CEDAW makes the provisions easy to circumvent, which stresses

the importance of bridging discrepancies between the treaty rules and domestic law. Finally,

the Government of Japan needs a more comprehensive approach in addressing the issue of sex

discrimination in the labour market, which includes working proactively to modify

discriminatory practices and stereotypes.

Keywords

International law, CEDAW, sex discrimination, gender equality, Japan, labour market

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Table of Contents

1. Introduction ......................................................................................................................... 7

1.1 Background ......................................................................................................................... 7

1.2 Aim of the Study ................................................................................................................. 9

1.3 Method and Material ........................................................................................................... 9

1.3.1 Means of Interpreting Treaty Obligations ................................................................................ 10

1.3.2 Legal Status of Treaty Body Documents .................................................................................. 11

1.3.3. The Legal Order of Japan ........................................................................................................ 14

1.4 Limitations ........................................................................................................................ 16

1.5 Central Concepts and Definitions ..................................................................................... 18

1.6 Outline ............................................................................................................................... 19

2. The CEDAW .................................................................................................................... 20

2.1 Towards Adoption by the General Assembly and Japanese Ratification ......................... 20

2.2 Format and Scope of the Convention ................................................................................ 21

2.3 Non-Binding and Progressive Character? ......................................................................... 23

2.4 Monitoring Mechanism ..................................................................................................... 25

2.5 Appraisal ........................................................................................................................... 26

3. Treaties within the Domestic Legal System ............................................................. 27

3.1 Theories and Terminology ................................................................................................ 27

3.1.1 Monism and Dualism ............................................................................................................... 27

3.1.2 The Terms ‘Domestic Legal Force’ and ‘Direct Applicability’ ............................................... 28

3.2 Status of Treaties under the Constitution of Japan ........................................................... 29

3.2.1 Domestic Legal Force ............................................................................................................... 29

3.2.2 Direct Applicability .................................................................................................................. 30

3.2.3 The Rank of International Treaties ........................................................................................... 31

3.3 The Impact of Human Rights Treaties Through Court Cases ........................................... 32

3.3.1 Litigation in Japan .................................................................................................................... 32

3.3.2 The Judiciary’s Openness Towards Human Rights Treaties .................................................... 34

3.4 Appraisal ........................................................................................................................... 37

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4. Implementation and Enforcement of the CEDAW in Japan ................................ 38

4.1 Protection against Sex Discrimination prior to Ratification ............................................. 38

4.1.1 Statutory Provisions .................................................................................................................. 38

4.1.2 The ‘Public Order Doctrine’ under Article 90 of the Civil Code ............................................. 39

4.2 CEDAW and the Legislature ............................................................................................ 41

4.3 CEDAW and the Judiciary ................................................................................................ 45

4.4 Obstacles for Implementation and Enforcement ............................................................... 48

4.4.1 Institutional Factors .................................................................................................................. 48

4.4.2 Cultural and Social Factors ...................................................................................................... 49

4.5 Appraisal ........................................................................................................................... 51

5. Conclusions ....................................................................................................................... 53

Sources .................................................................................................................................... 56

Annex ...................................................................................................................................... 69

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List of Abbreviations

Basic Law Basic Act for Gender Equal Society

CCFCLL Act on Childcare Leave, Caregiver Leave, and Other Measures for

the Welfare of Workers Caring for Children or Other Family

Members (commonly the Child Care and Family Care Leave Law)

CEDAW Convention on the Elimination of All Forms of Discrimination

Against Women

CEDAW-OP Optional Protocol to the Convention on the Elimination of All

Forms of Discrimination against Women

CERD Convention on the Elimination of All Forms of Racial

Discrimination

CSW Commission on the Status of Women

DEDAW Declaration on the Elimination of Discrimination Against Women

EEOL Act on Securing, Etc. of Equal Opportunity and Treatment

between Men and Women in Employment (commonly the

Equal Employment Opportunity Law)

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International Court of Justice

ILO International Labour Organization

LDP Liberal Democratic Party of Japan

LSL Labour Standards Act

MHLW Ministry of Health, Labour and Welfare

OECD The Organisation for Economic Co-operation and Development

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UDHR Universal Declaration of Human Rights

UN United Nations

VCLT Vienna Convention on the Law of Treaties

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1. Introduction

1.1 Background

Japan, the world’s third largest economy and tenth most populous nation, has long fascinated

Westerners with its unique mix between modernity and maintenance of old traditions. ‘The

land of the rising sun’ is the most successful Asian country with respect to industrialisation

and modernisation, and a world-leader in innovation and technology.1 Perhaps less familiar in

the West is the fact that Japan has faced economic stagnation for more than a decade and is

grappling with problems related to low fertility rates and a rapidly ageing population.2 The

shrinking workforce and tax base aggravate issues related to rising costs for elderly care,

which have led to predictions of severe economic downturn. 3 But despite Japan’s

demographic and economic challenges, the female labour force participation rate remains low,

in fact, among the lowest in the OECD economies.4

In most developed nations, a chart depicting the labour force participation rate of women in

working age is represented by an inverted U-shape, with a high percentage of women working

through their 30s. By contrast, such a chart in Japan will resemble the letter M, since the

participation rate is low for women between their late 20s and late 30s. This is due to well-

established norms requiring Japanese women to quit their jobs upon marriage, pregnancy, or

childbirth, while re-entering the labour force after child-rearing age is common.5 In this

context, one can refer to the August 2018 revelations of the prestigious Tokyo Medical

University systematically manipulating entrance exam scores to curb female enrolment. The

revelations sparked fury and triggered a public apology, but the University also expressed a

fear that higher percentages of female students could lead to future shortages of doctors as it

1 Kimura, Kunihiro, “Sex-Based Discrimination Trends in Japan 1965-2005: The Gender Wage Gap and the Marriage Bar”, in Discrimination in an Unequal World, Centeno, Miguel Angel, Newman, Katherine (eds.), 2010, Oxford University Press, New York, p. 156. 2 International Center for Peace and Human Rights. (2015-11-30). “Womenomics in Japan or the Lack of a Comprehensive Approach on Women’s Discrimination”. Available at: http://www.cipadh.org/en/%E2%80%9Cwomenomics%E2%80%9D-japan-or-lack-comprehensive-approach-women%E2%80%99s-discriminations, accessed 2018-10-08. 3 Collins, William. (2017-11-17). “Why Japan’s Low Birth Rate Makes Economic Sense”. The Japan Times. Available at: https://www.japantimes.co.jp/opinion/2017/11/17/commentary/japan-commentary/japans-low-birth-rate-makes-economic-sense/#.W7Y4bxMzaT9, accessed 2018-10-04. 4 International Labour Organization (ILO). Labour force participation rate by sex and age. Database of Labour Statistics (ILOSTAT). Available at: http://www.ilo.org/ilostat, accessed 2018-08-31. 5 Tsuji, Yuki, “Explaining the Increase in Female Mayors: Gender-Segregated Employment and Pathways to Local Political Leadership”, Social Science Japan Journal, Vol. 20, No. 1, Winter 2017, p. 41; and Barrett, Kelly “Women in the Workplace: Sexual Discrimination in Japan”, Human Rights Brief, 2004, Vol. 11, Iss. 2, p. 4.

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anticipated that women would shorten or halt their careers after having children. 6 Although

hardly sufficient as defence for its reprehensible actions, judging by the current situation in

the country, this prediction is probably not entirely wrong. Working mothers in Japan

commonly suffer from mistreatment from their bosses and colleagues, which has given rise to

a Japanese word for maternity harassment: matahara.7 The discrimination against women,

however, takes many forms, and the difficulties for women in the Japanese labour market are

not restricted to child-rearing age. Sexual harassment is prevalent and women of all ages face

widespread discrimination, In addition, women’s opportunities are restricted by persistent

gender stereotypes.8

Another issue is male-centric practices such as notoriously long working hours, which makes

it impossible to balance work and family needs in a society that, besides child-rearing, relies

on its women for housework and caring for elderly relatives.9 Hence, full-time employment in

the Japanese labour market, characterised by lifetime employment requiring full commitment,

is beyond reach for many women. 10 Instead, they are forced into clerical jobs lacking

prospects of professional development, and into part-time or other irregular forms of

employment.11 As a result, the gender wage gap in Japan is the largest among developed

countries, with the average Japanese woman earning less than 50 percent of her male

counterpart.12 How poorly Japan compares with other countries when it comes to gender

equality is well illustrated by the latest Gender Gap Report, published annually by the World

Economic Forum, in which Japan ranked 114 out of 144 countries, its worst standing so far.13

6 McCurry, Justin. (2018-08-08). “Tokyo medical school admits changing results to exclude women.” The Guardian. Available at: https://www.theguardian.com/world/2018/aug/08/tokyo-medical-school-admits-changing-results-to-exclude-women, accessed 2018-09-03. 7 The word ’matahara’ is an abbreviated form of the English words ‘maternity’ and ‘harassment’. While there is no established definition, matahara refers to various ways of harassing working women who become pregnant or give birth, for example termination of employment or forced resignation (Matahara Net. What is “Matahara”. 2018. Available at: http://www.mataharanet.org/en/what-is-matahara/, accessed 2018-10-05). 8 The Japan Times. (2016-04-08). “Still a struggle for working women”. [Editorial]. The Japan Times. Available at: https://www.japantimes.co.jp/opinion/2016/04/08/editorials/still-a-struggle-for-working-women/#.WxSp5dOFNBx, accessed 2018-06-04. 9 Ibid. 10 Knapp, Kiyoko Kamio, “Still Office Flowers: Japanese Women Betrayed by the Equal Employment Opportunity Law”, Harvard Women’s Law Journal, Vol. 18, 1995, pp. 91-92. 11 Tsuji, Y., 2017, pp. 39-41. 12 Miyoshi, Koyo, “Male-Female Wage Differentials in Japan: The Importance of the Choice of Work Status”, in Discrimination in an Unequal World, Centeno, Miguel Angel, Newman, Katherine (eds.), 2010, Oxford University Press, New York, p. 173; and Organization for Economic Co-operation and Development (OECD). (2014-09-09). Education at a Glance 2014: OECD Indicators, p. 145, table A6.3b. PDF retrieved from: https://www.oecd-ilibrary.org/education/education-at-a-glance-2014_eag-2014-en, accessed 2018-06-01. 13 World Economic Forum. (2017-11-02) The Global Gender Gap Report 2017. PDF retrieved from: http://www3.weforum.org/docs/WEF_GGGR_2017.pdf, accessed 2018-06-01.

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Gender inequality and sex discrimination undoubtedly remain serious issues in the Japanese

society, with the labour market being one of numerous examples of women’s disadvantageous

situation.14 This lacklustre performance in achieving gender equality might appear surprising,

not least in the light of Japan’s obligations under the UN Convention on the Elimination of

All Forms of Discrimination Against Women (CEDAW), ratified by Japan already in 1985.

More than 30 years later, the reality for Japanese women is still far from equal opportunity.

Hence, the impact of said Convention on sex-based discrimination in the labour market

appears limited, which raises questions such as what status the CEDAW enjoys in Japan, and

whether the obligations under the Convention have been properly implemented and enforced.

1.2 Aim of the Study

Given the questions raised above, the aim of the present study is two-fold. Firstly, it seeks to

examine the status of the CEDAW in Japan, with due regard to the status of treaties in general

as sources of rights and obligations in the country. Secondly, the study aims to

ascertain whether the said Convention has been properly implemented and enforced, and

to demonstrate possible obstacles causing deficiencies and shortcomings in regards to

combating discrimination against women in the Japanese labour market.

1.3 Method and Material

In order to ascertain whether a treaty has been properly implemented and enforced, an

understanding of the treaty obligations is of fundamental importance. Since the CEDAW does

not contain provisions on interpretation, it should be interpreted in accordance with the rules

in the Vienna Convention on the Law of Treaties (VCLT).15 These rules on the interpretation

of treaty obligations will be examined below (Section 1.3.1). Unlike the interpretation of

treaties, the status of international law in Japan is a constitutional question and requires an

understanding of domestic law. Therefore, it is important for the reader to get acquainted with

the particularities of the Japanese legal order, and some brief remarks on this matter follow

below (Section 1.3.3). This background will facilitate the drawing of conclusions as to

whether the CEDAW has been properly implemented and enforced in Japan or not, since this

question requires a comparison between the obligations under the Convention and the legal

14 Kimura, K., in Centeno, et al. (eds.), 2010, p. 156. 15 Chinkin, Christin, Freeman, Marsha A., “Introduction”, in The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary, Freeman, Marsha A., Chinkin, Christine, Rudolf, Beate (eds.), 2012, Oxford University Press, p. 13.

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situation in the country. In determining whether the implementation and enforcement comply

with the CEDAW, not every single article of the Convention will be thoroughly examined.

Rather, the starting point is to explore issues in the Japanese society, which are analysed on

the basis of the obligations under the CEDAW. In order to identify such issues to analyse,

documents deriving from the Committee on the Elimination of Discrimination Against

Women (CEDAW Committee), the organ monitoring the implementation of the CEDAW,

serve as important sources. These documents, however, are not only interesting for

highlighting potential problems but possibly also as sources of law, and as means of

interpreting the treaty obligations. The legal status of documents deriving from treaty bodies

will therefore also be addressed below (Section 1.3.2).

1.3.1 Means of Interpreting Treaty Obligations

The VCLT contains important rules on the interpretation of treaties that are universally

binding as customary international law. 16 Of central importance is the general rule of

interpretation in Article 31, stating:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Although the meaning of a treaty text might appear evident and clear, interpretation is

necessarily implied in any act of application or implementation, and the meaning can be

16 Dörr, Oliver, “Article 31”, in Vienna Convention on the Law of Treaties: A Commentary, Dörr, Oliver, Schmalenbach, Kirsten (eds.), 2 ed., 2018, Springer, Berlin, p. 562.

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ascertained by applying the VCLT rules.17 The general rule of interpretation in Article 31 (1)

is based on a textual approach, comprising several components. The ordinary meaning of the

wording is the starting point, but treaties shall always be interpreted in accordance with the

principle of good faith, and the ordinary meaning of a provision be determined in the context

of the treaty in the light of its objective and purpose. Thus, a treaty’s systematic structure is as

important as the linguistic meaning, and through stressing the importance of the purpose and

objective, the principle of effectiveness is brought into the general rule of interpretation.18

Clauses stating the purpose of a treaty are therefore important for the interpretation, and

human right treaties must always be interpreted in a manner sufficiently favourable to the

effective protection of the rights therein.19

In accordance with Article 31 (3), subsequent practice shall also be taken into account, as

evidence of the States Parties’ understanding of their treaty obligations. Additionally,

activities of other actors with a role in the implementation of a treaty can constitute

subsequent practice.20 Further, Article 32 of the VCLT states that “recourse may be had to

supplementary means of interpretations, including the preparatory work of the treaty and the

circumstances of its conclusion”. However, this is only allowed to confirm the meaning

resulting from application of the general rule of interpretation, or to determine the meaning

when it leads to ambiguity or a result that is absurd or unreasonable. Although Article 32

assigns a supplementary role to the travaux préparatoires, they remain relevant in practice,21

and preparatory documents of are therefore regularly referred to in the study.

1.3.2 Legal Status of Treaty Body Documents

Each of the core UN human rights treaties, which includes the CEDAW, has a corresponding

treaty body that monitors the implementation. These treaty bodies are committees of

independent experts, and their functions include considering States Parties’ periodic reports

17 Dörr, O., in Dörr, O., Schmalenbach, K. (eds), 2018, p. 567. 18 Ibid, pp. 579-588. The principle of good faith is also explicitly referred to in the pacta sunt servanda rule in Article 26 of the VCLT. See also Bring, Ove, Mahmoudi, Said, Wrange, Pål, Sverige och Folkrätten, 5 ed., 2014, Norstedts Juridik, Stockholm, p. 50. 19 Mechlem, Kerstin, “Treaty Bodies and the Interpretation of Human Rights”, Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, 2009, pp. 911-912. 20 Dörr, O., in Dörr, O., Schmalenbach, K. (eds), 2018, pp. 592-601. 21 Mechlem, K., 2009, p. 913. See, however, Dörr, Oliver, “Article 32”, in Vienna Convention on the Law of Treaties: A Commentary, Dörr, Oliver, Schmalenbach, Kirsten (eds.), 2 ed., 2018, Springer, pp. 617-618.

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and adopting general recommendations.22 The latter can be used to express a committee’s

legal opinion on the scope of rights or obligations under the treaty that it monitors, while the

review of periodic reports ends with concluding observations, containing recommendations

specifically for the State Party under review.23 Another important function of the treaty bodies

is to issue views in response to communications submitted under the individual complaint

mechanisms. The use of the term ‘views’ rather than ‘decisions’ indicates the lack of a legally

binding character. Hence, none of the documents deriving from treaty bodies are legally

binding under international law. 24 But what is their formal legal status; should they be

considered sources of law or means of interpreting the obligations under the treaties they

monitor? A good starting point for answering this question is Article 38 (1) of the Statute of

the International Court of Justice (ICJ). Although intended to give direction to the ICJ when

settling disputes within its jurisdiction, Article 38 (1) is widely accepted as an authoritative

enumeration of the sources of international law.25 It reads:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. [Emphasis added]

As for customary international law, it has been defined as “a constant and uniform usage,

accepted as law”.26 In other words, it consists of a material element (state practice) and a

psychological element (known as opinio juris). The latter means that states must take the view

22 International Service for Human Rights (ISHR). Treaty Bodies. 2018. Available at: http://www.ishr.ch/treaty-bodies, accessed 2018-09-26. In some treaty bodies, these are instead called ‘General Observations’, but this study adopts the CEDAW Committees terminology. 23 Hayashi, Yoko, “Implementation of the Convention on the Elimination of All Forms of Discrimination against Women in Japan”, Journal of East Asia and International Law, Vol. 6 No. 2, September 2013, pp. 344-345; and Shelton, Dinah L., “The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies”, in Coexistence, Cooperation and Solidarity: Liber Amoricum Rüdiger Wolfrum, Hestermeyer, Holger P., et al. (eds.), 2012, Martinus Nijhoff Publishers, Boston, p. 562. 24 Rehman, Javaid, International Human Rights Law, 2003, Pearson Education, Essex, p. 91. The Committees also lack the power to enforce its views (see Chinkin, C., et al., in Freeman, M.A., et al., (eds.), 2012, pp. 23-24). 25 Allen, Stephen, Law Express: International Law, 2 ed., 2015, Pearson Education, London, pp. 18-19; and Rehman, J., 2003, p. 16. 26 Allen, S., 2015, p. 19; and Rehman, J., 2003, p. 19.

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that the practice amounts to law. 27 Both action and inaction can constitute state practice, and

examples of where the evidence of such practices can be found include legislation, statements

of government spokesmen, treaties concluded, and states’ conduct in international

organisations.28 As for the roles of international organisations, e.g., UN General Assembly

resolutions may contribute to the creation of rules of customary international law.29 Similarly,

a widely accepted treaty body praxis could express or give rise to international customary

law.30 As inferred by Article 38 (1) (d), judicial decisions and teachings serve as subsidiary

means for the determination of rules of law established in other sources.31 In sum, rather than

constituting sources of law as such, treaty body documents can express, help determine and

indirectly give rise to sources of international law.

Documents deriving from treaty bodies could also be considered as means of interpretation in

accordance with the VCLT. As seen above (Section 1.3.1), Article 31 (3) (b) of the VCLT

requires that treaty interpretation includes ‘subsequent practice’, which has been understood

as states’ realisations of rights and their participation in the supervisory mechanisms. Since

international organs with a role in the implementation can assume interpretive roles normally

played by states, their practice can also constitute subsequent practice.32 The human rights

treaty bodies are the main interpreters of the treaties they monitor, and through their output

they are the principal generators of subsequent practice in the sense of Article 31 (3) (b).

States Parties’ responses to the treaty bodies’ work is, however, important for the

establishment of subsequent practice. A significant degree of concurrence in state practice

indicates that the treaty body’s interpretation is accepted. Usually, States Parties base their

periodic reports on the interpretation offered by the treaty bodies and reporting guidelines,

hence, indirectly supporting their views.33 However, since general recommendations and other

documents lack a legally binding nature, some countries reject enforcement of treaty body

documents. In other countries, courts have referred to them as “supplementary means of

27 Allen, S., 2015, pp. 19-21; and Rehman, J., 2003, pp. 19 and 58. Both Allen and Rehman, however, mention that a state that has objected to a new customary international law rule from the moment the rule was established and maintained this objection, will not be bound by that particular rule (the so-called persistent objector rule). 28 Allen, S., 2015, pp. 19-21. Rehman, J., 2003, pp. 19-20. 29 Allen, S., 2015, p. 22. 30 Ibid pp. 25-26. 31 Ibid, p. 30. As follows from Article 59 of the ICJ Statute, judicial decisions lack stare decisis. 32 Craven, Matthew, C. R., The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development, 1995, Clarendon Press, Oxford, p. 91; and Dörr, O., in Dörr, O., Schmalenbach, K. (eds), 2018, pp. 592-601. 33 Mechlem, K., 2009, pp. 920-921; and Craven, M.C.R., 1995, p. 91.

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interpretation” in the sense of Article 32 of the VCLT.34 In Japan, courts have expressed that

such documents, although not legally binding, should be taken into consideration when

interpreting the International Covenants of Human Rights.35 If a treaty body’s interpretation is

accepted and jointly acted upon by states, subsequent practice is established, if not, the States

Parties’ response speaks strongly against it. Hence, the status of the treaty body and the state

practices depends heavily on the particular treaty obligation subject matter.36 As evident, there

is a possible connection between subsequent practice and the establishment of rules of

customary international law, but to acquire the status of the latter, the requirements are much

higher. In the present study, documents deriving from the CEDAW Committee will be

considered an important aid in the interpretation of obligations under the Convention, whilst it

will be acknowledged that their importance varies with the degree of the States Parties’

willingness to accept the Committee’s interpretation.

1.3.3. The Legal Order of Japan

In the study of a foreign legal system, it is important to aim for awareness and understanding

of its differences compared to accustomed legal systems and traditions. As for Japan, one first

thing to mention is what constitutes the generally accepted sources of law in the country’s

legal order, namely the Constitution, legislation, cabinet orders, ministry ordinances, and

ministry notifications. 37 It shall be noted that judicial decisions are not part of this

enumeration, as they are not considered an official source of law.38 Independence of the

judiciary is guaranteed by Article 76 (3) of the Constitution, stating that “[a]ll judges shall be

independent in the exercise of their conscience and shall be bound only by this Constitution

and the laws”. Nevertheless, judges generally adhere to judicial precedent in the interpretation

of laws, especially to judgments of the Supreme Court.39 Thus, despite the low status of

judicial decision in theory, they are considered important sources for the present study. As

will be discussed below (Section 3.3.1), however, the rather unclear status of judicial precent

34 Shelton, D.L., in Hestermeyer, H.P., et al. (eds.), 2012, p. 572; and Webster, Timothy, “International Human Rights Law in Japan: The View at Thirty”, Columbia Journal of Asian Law, Vol. 23, No. 2, 2010, pp. 256-257. 35 The Covenants are the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). See Judgt Osaka High Court (28 Oct. 1994) 1513 Hanrei Jihō 71; Judgt Hiroshima High Court (28 April 1999); Judgt Supreme Court (4 Sept. 2013) 67 Minshū 6. 36 Mechlem, K., 2009, pp. 920-921. 37 Taylor, Veronica, Britt, Robert R., Ishida, Kyoko, Chaffee John, “Introduction: Nature of the Japanese Legal System”, Business Law in Japan, Vol. 1, 2008, p. 5. 38 Ibid, pp. 6-7; and Itoh, Hiroshi, “The Role of Precedent at Japan’s Supreme Court”, Washington University Law Review, Vol. 88. Iss. 6, 2011, p. 1633. 39 Haley, John O., “The Role of Courts in ‘Making’ Law in Japan: The Communitarian Conservatism of Japanese Judges”, Pacific Rim Law & Policy Journal, Vol. 22, No. 3, 2013, pp. 491-492.

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contributes to making litigation unappealing for Japanese women. Like most Western states,

the Japanese court system has a three-tiered structure, consisting of the Supreme Court, eight

High Courts, and 50 District Courts.40 It does not exist many Supreme Court cases on the

CEDAW or sex discrimination in general, and cases from lower courts will therefore be

mentioned extensively, even though they obviously cannot be considered precedential like

Supreme Court judgments. 41 However, even lower court cases are interesting when

investigating the enforcement of the CEDAW in practice and to illustrate the situation in

Japan. Court cases are available at the judicial case information database (saibanrei jōhō)42 at

the official Courts in Japan website. Worth mentioning is that the case naming method is very

different from most Western countries. In fact, no actual naming system exists. Rather, the

name of the court and the date of judgment are used when searching for or referring to a case,

e.g., “Judgt Supreme Court (10 May 2015)”. If the case has been reported by a law journal,

references additionally include the name of the journal and the volume, such as “811 Hanrei

Taimuzu”. However, famous cases usually have so-called names that are widely adapted in

the literature, such as the Suzuki v. Sumitomo Cement case, which are used along with the

conventional case information.

Besides court cases and the legislation itself, the material of the study relating to Japanese law

is primarily comprised by books and articles written by scholars. As seen from the

enumeration of sources of law, however, teachings are not officially considered such a source.

Nevertheless, they are an important source in practice.43 For example, Yuji Iwasawa, often

referred to in this study, has frequently been cited by the Supreme Court of Japan. Japanese

courts may also appoint ‘expert witnesses’ to submit opinions on issues of international law or

to testify in court.44 Expert witnesses have been appointed in many cases dealing with issues

of international law, and important judgments on such matters have often been based on

40 Supreme Court of Japan. Court System of Japan. 2018, p. 1. PDF retrieved from: http://www.courts.go.jp/english/judicial_sys/index.html, accessed 2018-10-02. Family Courts and Summary Courts also exist but they are not relevant for the present study. 41 For discussion on problems in compiling domestic jurisprudence referencing the CEDAW, see McCrudden, Christopher, “CEDAW in National Courts: A Case Study in Operationalizing Comparative International Law Analysis in a Human Rights Context”, in Comparative International Law, Roberts, Anthea, Stephan, Paul, Verdier, Pierre-Hugues, Versteeg, Mila (eds.), 2018, Oxford University Press, Oxford, pp. 463-465. 42 Supreme Court of Japan Judicial Case Information. Available: http://www.courts.go.jp/app/hanrei_jp/search1 (in Japanese), and http://www.courts.go.jp/app/hanrei_en/search? (in English), accessed 2018-10-04. 43 Taylor, V., et al., 2008, p. 6. 44 Article 165 of the Criminal Procedure Law and Article 213 of the Civil Procedure Law.

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opinions submitted by scholars.45 Both when it comes to literature and court cases, some

sources are relatively old. However, this is not necessarily a flaw, as it may indicate that the

legal situation has not undergone any significant changes.

When, as in my case, the knowledge in the Japanese language is limited, another issue to

address when studying Japanese law is potential language barriers. Most articles on the

subject are, not unexpectedly, written in Japanese. However, the access to English articles is

far from scarce. When it comes to international law in Japan, there is more literature authored

in English than in a field of law that lacks an international dimension. Besides the access to

material in English, the use of translations is another potential issue. Japanese courts’

translations of English terms are not always consequent, and translations generally bring a

risk of possibly important nuances in the language becoming lost. In this regard, it might be

an advantage that the Constitution of Japan was drawn up by the American occupation force

following World War II and no amendments has been made since its adoption. Possible issues

with the extensive use of translations are also mitigated by a government project aimed at

translating major Japanese laws and regulations, starting in 2004. Since then, the terminology

used has generally been more consequent, both in translations from Japanese to English and

vice versa. The translations are available at a law translation database (hōrei honyaku dēta)46

operated by the Ministry of Justice, and has been used to the greatest extent possible. The

database always shows the English text next to the Japanese original, which makes it easy to

control the translations’ correctness. As for court cases, only some judgments of the Supreme

Court are available in English in the judicial case information database, which means that it is

often necessary to rely on unofficial translations.

1.4 Limitations

As the name of the Convention indicates, the CEDAW only applies to discrimination against

women.47 As evident from the travaux préparatoires, this was a deliberate choice, based on

the assumption that a gender-neutral approach would not sufficiently recognise women’s

45 Iwasawa, Yuji, International Law, Human Rights, and Japanese Law: The Impact of International Law on Japanese Law, 1998, Oxford University Press, Oxford, pp. 34-35. See, e.g., the famous Shimoda case, Tokyo District Court (7 Dec. 1963) on the legality of the dropping of atomic bombs during World War II. 46 See Ministry of Justice Laws Translation Database (hōrei honyaku dēta). Available at: http://www.japaneselawtranslation.go.jp/, accessed 2018-09-28. 47 CEDAW, General Recommendation No. 25, on article 4, paragraph 1, of the CEDAW, on temporary special measures (2004) para 5.

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vulnerable situation.48 Under Article 4 (1) of the CEDAW, States Parties are even encouraged

to undertake temporary special measures aimed at accelerating de facto equality. This

includes, e.g., quotas for women on the boards of large companies.49 Neither such temporary

special measures nor special measures under Article 4 (2) aimed at protecting maternity, shall

be considered discriminatory, and the latter is not the only provision moving away from an

equal treatment approach by recognising the uniqueness of women’s childbearing role.50 For

these reasons, the present study will not cover sex discrimination against men.

Further, rather than trying to cover all areas where women suffer discrimination, the study

focuses more in-depth on the CEDAW in the labour market. In defining the scope, the

criticism of the CEDAW Committee has been helpful. Although sexual violence in Japan has

attained international attention lately,51 this issue has not been a focus of the Committee, and

the CEDAW lacks explicit references to violence against women.52 Japan has repeatedly been

criticised by the Committee in the areas of employment, family law, nationality law, treatment

of children born out of wedlock and compensatory damages (especially to Korean ‘comfort

women’ during World War II).53 Since the comfort women issue has other dimensions, such

as racism and international politics, it was not found to be well suited for the study, and the

criticised nationality and family laws appeared too obviously discriminating (e.g. laws stating

different minimum age for marriage for men and women54) to be worth a closer examination

from a legal point of view. Therefore, it appeared suitable to limit the scope of the study to the

implementation and enforcement of the CEDAW pertaining to sex discrimination in the

labour market. However, the limitation should be understood in a broad sense, perceiving

48 Rehof, Lars Adam, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1993, Martin Nijhoff Publishers, Dordrecht, p. 44; and Commission on the Status of Women, CSW, Draft Convention on the Elimination of all Forms of Discrimination against Women Working: Working Paper Prepared by the Secretary-General, 21 June 1976, para 33. 49 See CEDAW, General Recommendation No. 25 (2004), para 5. 50 See, e.g., Article 11 (2) of the CEDAW; and Rehman, J., 2003, p. 357. 51 This attention has partly been because of the Shiori Ito rape case. Ms. Ito, who went public, accusations the chief of a big broadcasting company of drugging and raping her, got smeared and questioned in media. See, e.g., Rich, Motoko, “She Broke Japan’s Silence on Rape”. The New York Times. (2017-12-29). Available at: https://www.nytimes.com/2017/12/29/world/asia/japan-rape.html, accessed 2018-10-08. See also De Vido, Sara, “Women’s Rights and Gender Equality in Europe and Asia”, in Contemporary Issues in Human Rights Law, Nakanishi, Yumiko (ed.), 2018, Springer, Singapore, pp. 143-167. 52 However, CEDAW, General Recommendation No. 19: Violence against women (1992) was devoted to the issue and it is also addressed in the 1993 UN Declaration on the Elimination of Violence Against Women. 53 Hayashi, Y., 2013 p. 345. 54 See Article 731 of the Civil Code.

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private and professional life interlinked, and recognising the connection between workforce

participation on equal terms and the strengthening of women’s human rights in general.55

The final point to address when it comes to limitations, is that the scope of the CEDAW

overlaps those of several other international instruments, such as the International Covenants

on Human Rights. The aim of the study is to focus on the CEDAW exclusively, except when

other international instruments are of direct relevance, e.g., to understand the status of human

rights treaties in Japan. However, the overlaps with other international instruments are also

complicated by the fact that the CEDAW was drafted by a separate commission and, in

practice, has been marginalised despite that women’s rights cannot be separated from human

rights of all people. Physical separation from the other treaty bodies has also resulted in a

CEDAW Committee finding itself somewhat isolated.56

1.5 Central Concepts and Definitions

For a study on sex-based discrimination of women, naturally, the concept ‘discrimination

against women’ is of fundamental importance. As for the purpose of the CEDAW, this

concept is defined in Article 1 of the Convention, stating that discrimination against women

shall mean “any distinction, exclusion or restriction made on the basis of sex which has the

effect or purpose of impairing or nullifying the recognition, enjoyment or exercise […] of

human rights and fundamental freedoms in the political, economic, social, cultural, civil or

any other field”. The definition of discrimination encompasses both de jure and de facto

equality, and States Parties shall ensure that there is neither direct nor indirect discrimination

against women. 57 This commonly used distinction between the concepts ‘direct

discrimination’ and ‘indirect discrimination’ also requires clarification. Firstly, direct

discrimination against women is constituted by different treatment explicitly based on

grounds of sex or gender. Indirect discrimination, for its part, is often subtler, and the

CEDAW Committee has explained that such discrimination occurs “when a law, policy,

programme or practice appears to be neutral in so far as it relates to men and women, but has

55 Chinkin, C. Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 8; and ECOSOC, Population Division. Female Labour-Force Participation: Paper Prepared by Lin Lean Lim, 11 March 2002, p. 204; and Organization for Economic Co-operation and Development (OECD). Fostering Women’s Economic Empowerment. 2018. Available at: http://www.oecd.org/mena/competitiveness/women-empowerment.htm, accessed 2018-09-27. 56 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, pp. 25-26; and Hayashi, Y., 2013, p. 363. 57 CEDAW, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the CEDAW, (16 Dec. 2010), para. 9; and Chinkin, C., Freeman, M.A., in Freeman, M.A, et al., (eds.), 2012, p. 9.

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a discriminatory effect in practice on women because pre-existing disadvantages and

inequalities are not addressed by the apparently neutral measure”.58

The next pair of concepts that should be addressed is ‘sex discrimination’ and ’gender

discrimination’. These concepts are used interchangeably in many contexts. The CEDAW

Committee, however, has clarified that the term ‘sex’ refers to biological differences between

men and women, while ‘gender’ refers to “socially constructed identities, attributes and roles

for women and men and society’s social and cultural meaning for these biological differences

resulting in hierarchical relationships between women and men and in the distribution of

power and rights favouring men and disadvantaging women”.59 Although the CEDAW only

refers to sex-based discrimination, according to the CEDAW Committee, interpreting Article

1 together with Articles 2 (f) and 5 (a) indicates that the Convention covers gender-based

discrimination against women. 60 The interpretation that the CEDAW also applies to gender-

based discrimination seems to be accepted by the States Parties.

1.6 Outline

The remainder of the present study is composed of four distinct parts. Next, Chapter 2 will

give a brief history on the CEDAW and examine the scope of the treaty as well as the States

Parties’ obligations. Chapter 2 also examines the monitoring mechanism, to the extent this has

not already been discussed above (Section 1.3.2). The subsequent Chapter 3 will study the

status of international treaties in the Japanese legal system and the judiciary’s openness

towards such treaties in general. Thereafter, Chapter 4 will examine the implementation and

application of the CEDAW specifically, by examining Japanese legislation and court cases.

Chapter 4 also outlines obstacles for implementation and application of the Convention.

Lastly, the conclusions of the study will be presented in Chapter 5.

58 CEDAW, General Recommendation No. 28 (2010), para 16. 59 Ibid, para 5. 60 Ibid, para 3 and 5.

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2. The CEDAW

2.1 Towards Adoption by the General Assembly and Japanese Ratification

The issue of sex-based discrimination attained its first international recognition through the

signing of the UN Charter in 1945. In its preamble, the Charter mentions ‘the equal rights of

men and women’ and Article 1 (3) includes among the purposes of the UN to promote and

encourage respect for human rights and fundamental freedoms for all, without distinction as

to sex. 61 Soon after the establishment of the UN, the responsibility for monitoring the

situation of women and promoting women’s rights within the UN system was placed in the

hands of a specialist commission named the Commission on the Status of Women (CSW).62 In

the early years, the CSW’s primary focus was women’s civil and political rights, but in the

1960s, demands began to be made for a more comprehensive, well-targeted international

focus on women. Its work then became increasingly focused on discrimination against

women, and the CSW started to draft a non-binding declaration specifically targeting this

issue.63 As a result, the Declaration on the Elimination of Discrimination Against Women

(DEDAW) was passed by the General Assembly in 1967. Five years later, the CSW

considered the possibility of preparing a treaty that would give normative force to the

provisions of the DEDAW and submitted a proposal to the General Assembly, pressing for an

international women’s year and a conference to address gender inequality. The UN, thereon,

designated 1975 as the International Women’s Year and later proclaimed the decade starting

from 1976 as the UN Decade for Women. During this decade, transforming the DEDAW into

a convention was high on the agenda, and the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) was adopted by the General Assembly in 1979.

The Convention entered into force in 1981, after being ratified by 20 countries.64

The preparation and adoption of the CEDAW was the most significant achievement of the UN

Decade for Women.65 Yet today, the CEDAW remains the central and most comprehensive

61 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 4. This focus on the right to equal treatment and non-discrimination in the enjoyment of human rights was later continued in other instruments, such as the Universal Declaration of Human Rights and the International Covenants on Human Rights. 62 Ibid, p. 4; and Rehman, J., 2003, p. 349. 63 McKean, Warwick, Equality and Discrimination under International Law, 1983, Oxford University Press, Oxford, p. 182; Chinkin, C., Freeman, M.A., in Freeman, M.A. et al., (eds.), 2012 p. 5. 64 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, pp. 6-7; and Office of the United Nations High Commissioner for Human Rights (OHCHR). Convention on the Elimination of All Forms of Discrimination Against Women. 2018: Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx, accessed 2018-05-31. 65 Iwasawa, Y., 1998, pp. 206-207; and Rehman, J., 2003, p. 45.

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international instrument for achieving gender equality, and it is the only core human rights

treaty exclusively addressed to women.66 Only a handful of the UN Member States have not

ratified the Convention, however, the number of reservations is higher than for any other

human rights treaty.67 After the adoption by the General Assembly, far from all Member

States greeted the CEDAW with open arms. Japan had made several unsuccessful proposals

to considerably ‘tone down’ the Convention during the drafting stage, primarily because the

treaty draft conflicted with domestic legislation.68 Thus, although Japan had voted for the

adoption of the CEDAW, the country remained reluctant to sign it. The decision to sign the

Convention was not made until 1981 and was barely more than a result of international

pressure. Japan had been subject to criticism for its handling of refugees from Vietnam in the

mid-1970s and, despite ratification of the International Covenants on Human Rights in 1978,

the government felt compelled to sign the CEDAW to prove that human rights were taken

seriously.69 After efforts were made to adjust domestic laws, the Convention was finally

submitted to the Diet70 for approval in 1985 and ratified without reservations.71

2.2 Format and Scope of the Convention

Formally, the Convention comprises a preamble and six parts. Part I (Article 1–6) deals with

the States Parties’ general obligations; Part II (Article 7–9) with public life and civil and

political rights; Part III (Article 10–14) with economic and social rights; Part IV (Article 15–

16) with legal status, Part V (Article 17–22) with the monitoring mechanism; and Part VI

(Article 23–30) contains final provisions. Several core articles are found in Part I, and

together with Article 24, Article 1-5 constitute the ‘Framework Articles’ of the CEDAW.72

The subject specific obligations in Article 6-16 should all be read in conjunction with the

Framework Articles, which form an interpretive framework for the application of the

Convention. Some issues are also addressed in several articles, such as discrimination related

to maternity, which reflects that women’s lives resist rigid compartmentalisation. 73 The

CEDAW covers discrimination against women in all aspects of life, not just the specific fields

66 OHCHR. Convention on the Elimination of All Forms of Discrimination Against Women. URL: Supra note 64; and Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 2. 67 Rehman, J., 2003, p. 374. 68 Iwasawa, Y., 1998, p. 207. 69 Ibid, pp. 6-9 and 208-209. 70 Under Article 41 of the Constitution of Japan, the National Diet is “the highest organ of state power” and “the sole law-making organ” of the country. 71 Iwasawa, Y., 1998, pp. 208-209. 72 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 8. 73 Ibid, pp. 8-9.

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addressed in the Convention.74 The definition of discrimination is wide (see Section 1.5

above) and the CEDAW is not limited to achievement of de jure and de facto equality.

Rather, Article 3 obliges States Parties to take all appropriate measures to “ensure the full

development and advancement of women” in all spheres of life, which has been called

‘transformative equality’.75 The comprehensive idea of sex discrimination and gender equality

is reflected in the States Parties’ obligations under the CEDAW, which can be divided into

three different categories: respecting, protecting and fulfilling women’s right to non-

discrimination and enjoyment of equality.76 The obligation to respect, the negative state

obligation, requires that States Parties refrain actions that directly or indirectly interfere with

women’s equal enjoyment of their human rights. The obligation to protect is a positive

obligation requiring that States Parties protect women from discrimination by private actors

and take steps to eliminate customary and other practices that prejudice and perpetuate the

notion of inferiority or superiority of either of the sexes, and of stereotyped roles for men and

women. 77 Lastly, the obligation to fulfil (or promote), the most ambitious category, requires

that States Parties take a wide variety of steps to ensure that women and men enjoy equal

rights including, where appropriate, the adoption of temporary special measures under Article

4 (1). Hence, the Convention entails obligations both of conduct and result.78

Article 2 of the CEDAW has been described as “the core of the Convention”.79 This provision

comprises all three categories of obligations and is inextricably linked with all other

substantive provisions of the Convention. Under Article 2, States Parties condemn all forms

of discrimination against women and “agree to pursue by all appropriate means and without

delay a policy of eliminating discrimination against women”. The details for how to pursue

this policy is described in the seven subsections of Article 2.80 These subsections prescribe

that the undertaking of the States Parties includes a legal obligation “to modify or abolish

existing laws, regulations, customs and practice which constitute discrimination against

women”, and to embody the principle of equality between the sexes in their national

74 Luera, M. Christina, in Pacific Rim Law & Policy Journal Association, Vol. 13, No. 3, 2004, p. 616; and Chinkin, C., Freeman, M.A., in Freeman, M.A. et al., 2012, p. 2. That CEDAW covers all areas is also is evident from the wording “any other field” in Article 1 and “in all fields” in Article 3 and the Preamble of the CEDAW. 75 Rehman, J., 2003, p. 353; and Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, pp. 8-9. 76 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, pp. 19-20. 77 CEDAW, General Recommendation No. 28 (2010), para 13. 78 Ibid, para. 9; and Chinkin, C, Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 20. 79 Rehman, J., 2003, p. 351. 80 Ibid. For the CEDAW in full text, see the Annex.

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legislation.81 In accordance with Article 2 (b), measures to eliminate discrimination against

women shall include the adoption of sanctions where appropriate. Further, Article 2 (e) is

noteworthy as this provision alleviates the public-private divide by obliging States Parties to

take “all appropriate measures to eliminate discrimination against women by any person,

organisation or enterprise”.82

The remaining Framework Articles are Article 5 on cultural transformation and Article 24.

Under the former, it is clarified that social and cultural patterns of conduct may not hinder

women’s exercise of fundamental rights, as States Parties shall take all appropriate measures

modify such conducts “which are based on the idea of the inferiority or the superiority of

either of the sexes or on stereotyped roles for men and women”.83 As for Article 24, it states

that States Parties undertake to adopt all necessary measures at the national level to achieve

the full realisation of the rights stipulated in the Convention. Among the subject specific

articles, particularly relevant ones for the present study include Article 11 on the elimination

of discrimination in the field of employment, on the grounds of marriage or maternity; and

Article 16 on the elimination of discrimination in all matters relating to marriage and family

relations. Article 11 (1) recognises the right to work as an inalienable right of all human

beings and emphasises women’s right to the same employment opportunities and equal

treatment and remuneration, including benefits, for work of equal value. Further, Article 11

(2) contains specific obligations to ensure the right to work and prevent discrimination on the

grounds of marriage and maternity.84

2.3 Non-Binding and Progressive Character?

The wording “take all appropriate measures” is used in many articles of CEDAW and allows

the States Parties flexibility in determining how best to give effect to the Convention within

their legal systems. The status of an international treaty in a domestic legal system depends on

the constitutional framework of the State Party.85 But even though a treaty has been ratified

and the formal requirements for application under domestic law are fulfilled, a treaty-based

right might not be enforceable in the courts of a State Party because the treaty lacks a ‘binding

character’. One example of a generally non-binding instrument is the Universal Declaration 81 See Articles 2 (a) and 2 (f) of the CEDAW. 82 Rehman, J., 2003, pp. 351-352; and Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 10. 83 Article 5 (a) of the CEDAW. 84 Articles 11 (1) (a) and (d), and 11 (2) of the CEDAW. 85 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, pp. 16-17.

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on Human Rights (UDHR). Since the UDHR is a resolution from the UN General Assembly,

it is not legally binding in form. The travaux préparatoires also confirm that it was originally

intended to be a non-binding instrument, providing goals which states would aim to achieve.86

It has been claimed that also the CEDAW is non-binding in its character, and suggested that

Article 24 of the Convention was introduced as an answer to the critics claiming the CEDAW

was to be nothing but a policy-oriented instrument. Therefore, it seems likely that the purpose

of the abovementioned Article 24 was to establish that the CEDAW really is a legally binding

instrument obliging the States Parties to realise the rights under the Convention in the

domestic legal order. 87

Although binding under international law, some human rights treaties only establish an

objective to be achieved progressively. According to Iwasawa, the enforcement of such

treaties in domestic law is often thwarted.88 For example, the ICESCR is generally regarded a

treaty of progressive character as its Article 2 (1) provides that each State Party “undertakes to

take steps […] with a view to achieving progressively the full realization of the rights

recognized in the present Covenant by all appropriate means”.89 As for the CEDAW, the

CEDAW Committee’s view is that the wording “without delay” in Article 2 makes it clear

that the obligation of States Parties to pursue their policy of eliminating discrimination against

women is of an immediate nature.90 Nevertheless, claims of a ‘progressive character’ is an

objection that has been raised against the CEDAW.91 During the consideration of CEDAW by

the Diet, Japanese government officials repeatedly emphasized that it had a progressive

character, claiming that this was implicit in the provisions of the Convention and clear when

reading the travaux préparatoires. This interpretation was apparently supported by some,92

while others have claimed that the travaux préparatoires do not substantiate the claim of

‘progressive character’.93 Admittedly, writes Iwasawa, many articles of the CEDAW “are

86 Today, however, several provisions of UDHR are considered binding as customary international law, even as for example the right to be free from torture (Rehman, J., 2003, pp. 57-59; and Iwasawa, Y., 1998, pp. 37-39). 87 Byrnes, Andrew, “Article 24”, in The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary, Freeman, Marsha A., Chinkin, Christine, Rudolf, Beate (eds.), 2012, Oxford University Press, Oxford, p. 541; and Rehof, L.A., 1993, p. 224. It is, however, also evident from Article 2 of the CEDAW that States Parties must undertake the requisite measures at the national level. 88 Iwasawa, Y., 1998, p. 28. 89 Ibid, p. 41. 90 CEDAW, General Recommendation No. 28 (2010), para 29. 91 See Iwasawa, Y., 1998, pp. 61-62. 92 See, e.g., Wadstein, Margareta, “Implementation of the UN Convention on the Elimination of All Forms of Discrimination Against Women”, Netherlands Quarterly on Human Right, No. 4, 1988, pp. 5 and 9. 93 Iwasawa, Y., 1998, p. 43. See also Campbell, Meghan, Women, Poverty, Equality: The Role of CEDAW, 2018, Hart Publishing, Oregon, pp. 119-120.

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phrased in general terms and give the States Parties wide discretion in the manner which they

plan to achieve the goals”. Further, demanding a continuous strive for equality gives the

CEDAW certain elements of a ‘programme’, which could indicate that immediate realisation

of the obligations is not demanded. Nevertheless, it does not mean that the Convention

tolerates clear breaches, and there is no reason to consider obligations of conduct to be

programmatic. Seemingly, most scholars claim that the CEDAW is not a progressive treaty.94

2.4 Monitoring Mechanism

The monitoring mechanism has already been touched upon above (Section 1.3.2), but will in

the following be described more in detail as regards its formal structure. Upon the CEDAW’s

entry into force, the CEDAW Committee was established in accordance with Article 17 of the

Convention. The Committee consists of 23 experts on women’s rights from around the

world.95 The States Parties are required to submit a report to the Committee every four years,

indicating the measures they have adopted to give effect to the provisions of the Convention.96

The periodic reports, a form of self-assessment, are followed by a constructive dialogue with

the CEDAW Committee, and the review of a report ends with ‘concluding observations’ in

which the Committee expresses its concerns about the implementation of the Convention and

makes specific recommendations thereto. In the concluding observations, States Parties are

also asked to provide information in their next periodic report on the implementation of the

recommendations.97 This dialogue-based procedure has been criticised for the lack of coercive

aspects and because governments’ assessments of their own efforts to comply with the

CEDAW “tend to minimize problems and maximize accomplishments”.98

Although the handling of periodic reports is the primary task of the CEDAW Committee, it

performs a wider role by issuing recommendations and views.99 The Committee’s general

94 See e.g., Campbell, M., 2018, pp. 119-120; and Iwasawa, Y., 1998, pp. 43-44. Iwasawa stresses that a ‘progressive character’ would not coincide with the immediate obligations to achieve equality under the International Covenants on Human Rights. 95 OHCHR. Committee on the Elimination of Discrimination Against Women. 2018. Available at: https://www.ohchr.org/en/hrbodies/cedaw/pages/recommendations.aspx, accessed 2018-10-01. 96 Article 18 of the CEDAW. 97 Article 21 of the CEDAW; Hayashi, Y., 2013, pp. 344-345; and Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 22. 98 Kälin, Walter, Künzli, Jörg, The Law of International Human Rights Protection, 2009, Oxford University Press, Oxford, p. 217; and Tang, Kwong-Leung, “Internationalizing Women’s Struggle against Discrimination: The UN Women’s Convention and the Optional Protocol”, The British Journal of Social Work, Vol. 34, No. 8, Dec. 2004, p. 1178. Periodic Reports have also been called “self-congratulatory” (see Iwasawa, Y, 1998, p. 210). 99 Rehman, J., 2003, pp. 364-368

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recommendations provide guidance to States Parties and others in understanding the

obligations of the Convention. The Committee has adopted several general recommendations,

some of which relate to working methods and others to the substantive articles of the

Convention.100 However, as noted earlier (Section 1.3.2), these are not legally binding upon

the States Parties. The lack of an effective enforcement mechanism is generally considered a

key deficiency of the Convention.101 Originally, the CEDAW even lacked an individual

complaints mechanism but an Optional Protocol (CEDAW-OP) was adopted in 1999.102 The

CEDAW-OP does not establish any new rights but allows individuals to submit

communications to the Committee on claimed violations of the CEDAW.103 However, the

Protocol also lacks enforcement powers, except for the pressure of world opinion, as States

Parties are not obliged to implement the Committee’s views or recommendations.104 More

than 100 states are parties to the CEDAW-OP and, as of October 10, 2018, there are 52

concluded cases.105 In these cases, e.g., the Committee has addressed questions of States

Parties’ responsibility for human rights violations committed by private actors, applying the

standard of due diligence.106 However, Japan has not acceded to the individual complaints

mechanism and seems to have no positive prospects for doing so in the near future.107

2.5 Appraisal

The CEDAW is the most comprehensive and important international instrument for

combating sex discrimination against women and achieve gender equality. The Convention is

broad in its scope and obliges the States Parties to undertake a wide range of measures to

promote women’s enjoyment of human rights and equal opportunity. The wording of Article

24 of the CEDAW speaks against claims of the Convention being a non-binding instrument.

Further, although the CEDAW lacks enforcement powers and has certain elements of a

programme, this does not mean that clear breaches are tolerated or that the States’ obligations

must not be immediately realised.

100 OHCHR. Committee on the Elimination of Discrimination Against Women. URL: Supra note 95. See also Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 21. 101 Tang, K.L., 2004, pp. 1178-1179. 102 Chinkin, C., Freeman, M.A., in Freeman, M.A., et al., (eds.), 2012, p. 13. 103 See Article 2 of the CEDAW-OP. 104 See Article 7 of the CEDAW-OP; and Tang, K.L., 2004, p. 1182. 105 Office of The High Commissioner. Jurisprudence. Available at: http://juris.ohchr.org/, accessed 2018-10-10. 106 This standard means that responsibility arises if states fail to take reasonable measures to prevent human rights violations, investigate violations, punish perpetrators, and/or provide redress to victims. See Communications No. 5/2005 (Goerkce v. Austria) and No. 6/2005 (Yildirim v. Austria). This standard also wins support in CEDAW, General Recommendations No. 19 (1992), para 9 and No. 28 (2010), para 13. 107 Hayashi, Y., 2013 p. 342; and CEDAW, Combined Seventh and Eighth Periodic Reports of Japan, para 113.

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3. Treaties within the Domestic Legal System

In this Chapter, the relation between international treaties and domestic law will be examined.

First, useful concepts for describing the relationship between international law and national

legal systems will be presented. Thereafter, the constitutional provision on the status of

international treaties in Japan will be investigated as well as court cases on the matter.

3.1 Theories and Terminology

3.1.1 Monism and Dualism

The relationship between international law and national law is one of the most fundamental

and controversial questions in the theory of international law. State sovereignty is the core

principle of international law, but once a state has given consent through ratification of an

international treaty, it is bound by the treaty on an international level. Hence, the State Party

shall undertake necessary action to ensure the rights and obligations under the treaty.

However, the States Parties are free to determine how to implement the treaties into national

law. 108 There are essentially two distinct theories pertaining to the relationship between

international law and the national law of a state: monism and dualism. Dualists, on the one

hand, consider international law and domestic law to be two separate legal systems. In the

view of monists, on the other hand, international law and domestic law are instead

components of a single legal system.109

In dualist states, treaties lack the status of law in the domestic legal system unless legislation

is in force that incorporates the treaty into domestic law. Hence, for courts in dualist states,

the distinction between incorporated and unincorporated treaties is crucial. However, courts in

dualist states have developed strategies for applying unincorporated treaties, such as referring

to “legitimate expectations” stemming from rights under an unincorporated treaty.110 Contrary

to dualist systems, the key distinguishing feature of monist legal systems is that at least some

treaties have the status of law without the need for any legislative act, once concluded in

accordance with the constitution. The constitutional framework among monist states varies

and some form of legislative approval may be required before the executive is authorised to

make a binding international commitment. Additionally, there might be requirements relating 108 Allen, S., 2015 p. 82. See also Article 26 of the VCLT (“pacta sunt servanda”). 109 Bring, O., et al., 2014, pp. 54-59; and Sloss, David, “Domestic Application of Treaties”, in The Oxford Guide to Treaties, Hollis, Duncan B. (ed.), 2012, Oxford University Press, Oxford, pp. 368-369. 110 Sloss, D., in Hollis, D.B. (ed.), 2012, pp. 370-373.

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to the publication of concluded treaties, and monist states frequently adapt legislation to

ensure that treaties are given practical effect domestically.111 Hence, judicial practice in both

dualist and monist states has come to blur the theoretical distinction between monism and

dualism. Nevertheless, the monist-dualist divide helps understand important formal

differences regarding the relation between international law and domestic law, although it

tends to obscure functional differences.112

3.1.2 The Terms ‘Domestic Legal Force’ and ‘Direct Applicability’

The classification of a state as either monist or dualist is closely related to questions of

‘domestic legal force’ and ‘direct applicability’. Domestic legal force has to do with whether

the treaty has the status of law in the domestic legal order, while direct applicability refers to

whether a rule of international law can be applied by courts in that country. In monist states,

treaties are automatically part of the domestic legal order. In dualist states, by contrast,

although obliged to fulfil the treaty obligations on the international level, legislative measures

are necessary for treaties to be claimable and applied in national courts.113 In order for an

international treaty to be directly applied, it must have the force of law in the domestic legal

order. However, the questions of domestic legal force should be distinguished from that of

direct applicability, since not all international rules that have domestic force of law will also

be directly applicable.114

Despite the similarities among monist states, there are substantial differences concerning the

application of treaties within their national legal systems.115 Generally, precise rights and

corresponding obligations are required for a treaty to be acknowledged direct applicability.

But the application of treaties is a question of domestic law, and in a state where the judiciary

is afforded broad interpretive powers a rule may more easily be considered directly

applicable.116 The difficulties in telling whether a treaty provision is directly applicable or not

is one of the reasons monist states sometimes choose to incorporate treaties.117 Focusing on

Japan specifically, the requirements for domestic legal force and direct applicability of treaties

111 Sloss, D., in Hollis, D.B. (ed.), 2012, pp. 373-376. 112 Ibid, pp. 369. See also Waters, Melissa A., “Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties”, Columbia Law Review, Vol. 107, Iss. 3, 2007, p. 628. 113 Allen, S., 2015, p. 85; and Iwasawa, Y., 1998, p. 32-33. 114 Iwasawa, Y., 1998, pp. 44-45. 115 Sloss, D., in Hollis, D.B. (ed.), 2012, pp. 367-368. 116 Iwasawa, Y., 1998, pp. 48-49. 117 Sloss, D., in Hollis, D.B. (ed.), 2012, p. 375.

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in the domestic legal order will be examined below (Section 3.2). It shall, however, first be

noted that there exists an alternative way of describing the domestic applicability by using the

terms ‘self-executing’ and ‘non-self-executing’. The latter terms give the impression that the

whole treaty is either applicable or not, regardless of the context. Therefore, the term ‘direct

applicability’ is preferred, however, both ‘direct applicability’ and ‘self-executing’ are used

among Japanese scholars.118

3.2 Status of Treaties under the Constitution of Japan

The Constitution of Japan precedes over any “law, ordinance, imperial rescript or other act of

government” that offends against its provisions, which is stated in its Article 98 (1). As the

most fundamental and superior law of the nation, the Constitution is a given starting point for

examining the status of international treaties in Japan. In fact, the same Article that deals with

the superiority of the Constitution, also contains the only provision in the Constitution

regarding the domestic effect of treaties and international law: Article 98 (2). This paragraph

provides that “[t]reaties concluded by Japan and established laws of nations shall be faithfully

observed”. How to interpret the wording “faithfully observed” is not obvious and, due to the

ambiguity of the provision, scholarly opinion is divided on the status of international treaties

in Japan. 119 In the following sections, Article 98 will be closely examined in order to draw

general conclusions regarding the domestic legal force and direct applicability of human

rights treaties, as well as the rank of such treaties in the domestic legal order.

3.2.1 Domestic Legal Force

Article 98 (2) of the Constitution contains the most fundamental provision on the relationship

between international and domestic law in Japan. The predominant view is that this means

that ratified treaties which are promulgated in the official gazette (Kanpō) have the force of

law in Japan.120 Most scholars argue that it is self-evident that international law must be

observed on the international level, and that the purpose of Article 98 (2) must be to give the

force of law to international treaties within Japan. Some of the proponents of this view also

base their arguments on other provisions, such as Article 73 (3) of the Constitution requiring

118 Iwasawa, Y., 1998, p. 45; and Shin, Hae Bong, “Japan”, in International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion, Shelton, Dinah. (ed.), 2011, Oxford University Press, p. 368. 119 Iwasawa, Y., 1998, pp. 29-30 and 34. 120 See, e.g., Hayashi, Y., 2013, p. 343; Luera, M.C., 2004, p. 617.; and Webster, T., 2010, p. 244. However, a few scholars might still argue that Article 98 (2) of the Constitution only dictates the faithful observance of treaties on the international level (see Iwasawa, Y., 1998, p. 29).

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approval by the Diet for concluding treaties and Article 7 (1) requiring promulgation of

treaties by the Emperor. The Government of Japan has consistently taken the position that

international treaties have the force of law in Japan by virtue of Article 98 (2).121 This view

has also been endorsed by Japanese courts. 122 Since international treaties automatically

acquire domestic legal force, this means Japan is a monist state. However, treaties that lack a

binding character under international law (see Section 2.3 above) are not regarded as having

domestic force of law.123

3.2.2 Direct Applicability

International treaties that have the force of law can be invoked before Japanese courts but will

not necessarily be applied by the judges. As mentioned above, domestic legal force is a

prerequisite for direct applicability, but should yet be distinguished from the question of

applicability.124 However, once Japanese courts have confirmed that a treaty has domestic

legal force under the Constitution, they have often applied it without examining its direct

applicability. Similarly, when a treaty is denied direct applicability, the courts rarely engage

in detailed explanation as to why it cannot be applied, but have explicitly considered the

direct application of treaties in several cases.125

According to Iwasawa, the direct applicability of a treaty must be examined in two stages.

First, it must be investigated whether the parties have excluded the direct applicability of the

treaty as a whole. Both in Japan and abroad, scholars hold that the intent of the parties is a

decisive criterion.126 But a positive intent about direct applicability can hardly ever be found

either in the treaty text or the travaux préparatoires. Rather, judges and scholars form their

opinions based on objective indicators such as the wording of the treaty. According to

Iwasawa, treaties that have the force of law in domestic law should be presumed directly

applicable. Hence, those who claim that a treaty is not directly applicable should carry the

121 Iwasawa, Y., 1998, pp. 28-33. This view expressed, e.g., by the Japanese delegation to the CEDAW in 2016 (CEDAW, Consideration of the Seventh and Eighth Periodic Reports of Japan, Summary of Remarks by Mr. Shinsuke Sugiyama, Deputy Minister for Foreign Affairs (16 February 2016), p. 1). 122 This was established in early cases, such as Judgt Supreme Court (28 June 1977) 31 Minshū 511, 23; and Judgt Supreme Court (Grand Bench) (5 April 1961) 15 Minshū 657. 123 Iwasawa, Y., 1998, pp. 28 and 37. 124 Ibid, pp. 28 and 45. See also Webster, T., 2010, p. 244. 125 See, e.g., Judgt Tokyo High Court (3 Feb. 1993) Gaikokujin Hanzai Saibanreshū 55; Judgt Tokyo High Court (8 April 1992) 791 Hanrei Taimuzu; and Judgt Hiroshima High Court (28 April 1999) (all three cases dealing with the ICCPR); and Judgt Tokyo District Court (22 Nov. 1996) on the Forced Labour Convention (ILO No. 29). For cases on the CEDAW, see below (Section 4.3). See also Iwasawa, Y., 1998, p. 45. 126 Iwasawa, Y., 1998, p. 46.

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burden of proof rather than vice versa. An expressed negative intent in the treaty text or in the

travaux préparatoires excludes direct applicability.127

If the parties have not excluded direct applicability of the treaty, the second stage is to

examine the individual treaty provisions. Precision is an important criterion for determining

the direct applicability and has been recognised as such by Japanese courts.128 In 1993, the

Tokyo High Court set out criteria to determine when treaties are directly applicable, focusing

on the intention of the parties and the precision of the rule in question. According to the

Court, an international rule needs to be more precise and clear if it “imposes on states an

obligation to act, involves appropriation of national expenditure, or when a similar system

already exists in domestic law”, as harmony with the system must be taken into

consideration.129 Thus, the Tokyo High Court, while acknowledging the intent of the parties

as an important element, apparently regarded precision to be of primary importance.130 The

Court decision also indicates the importance of the context in which a provision is invoked.

The same rule could be directly applicable under some circumstances, but not under other; it

is easier to accept applicability in a situation in which an action is claimed to be illegal than in

a situation in which a positive action of a government is required under a treaty.131 Supported

by the Tokyo High Court’s view stressing ‘harmony’, the extent to which the subject matter

of the rule is regulated domestically, and whether complementary measures are adopted, will

also affect the treaty’s applicability.132

3.2.3 The Rank of International Treaties

By virtue of Article 98 (2) of the Constitution, international treaties attain domestic legal force

in Japan upon publication in the Kanpō. However, this provision does not specify the rank

held by treaties in the domestic legal order. With regard to this question, the views of

Japanese scholars have historically been divided between the ‘treaty supremacy theory’ and

the ‘constitutional supremacy theory’.133 While to former allows treaties to prevail over the

127 Iwasawa, Y., 1998, p. 47. 128 Ibid. See, e.g., the Shiomi v. Minister of Public Health case, Judgt Supreme Court (2 March 1989) 1363 Hanrei Jihō 68 (in which the Court denied direct applicability of Article 9 of the ICESCR because it does not provide for “a concrete right to be granted to individuals immediately”). 129 Judgt Tokyo High Court (5 Mar. 1993), 811 Hanrei Taimuzu. 130 Iwasawa, Y., 1998, pp. 47-48; and Webster, T., 2010, p. 244. 131 Webster, T., 2010, pp. 244-245; and Iwasawa, Y., 1998, p. 48. 132 Iwasawa, Y., 1998, pp. 48-49. 133 Goodman, Carl F., The Rule of Law in Japan: A Comparative Analysis, 2 ed., 2008, Kluwer Law International, Alphen aan den Rijn, pp. 249-252; and Iwasawa, Y., 1998, pp. 96-97.

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Constitution, it is the other way around based on the latter. The constitutional supremacy

theory means that, irrespective of a treaty rule being directly applicable, it might not be

enforced in the national legal order when conflicting with the Constitution. The Tokyo High

Court once adopted the ‘treaty supremacy theory’,134 but the Government of Japan has stated

that the Constitution is the supreme law of the country and supersedes the ICCPR. The view

that treaties rank lower than the Constitution has also been supported by the Osaka High

Court.135 Japanese scholars agree insofar that treaties have at least the same status as domestic

law, and most scholars take the view that they rank below the Constitution but above the acts

of government enumerated in Article 98 of the Constitution.136 This view has been confirmed

by courts in several cases in which human rights treaties have been invoked.137 However,

when treaties represent ‘established laws of nations’ they may prevail even over the

Constitution, and Iwasawa considers the fact that Japan is wary of acceding to human rights

treaties as an indicator of a high status.138 The exact rank remains unclear but, according to the

predominant view, the Constitution will prevail if a difference between the Constitution and

treaty cannot be accommodated by means of interpretation.139

3.3 The Impact of Human Rights Treaties Through Court Cases

International treaties enjoy a comparatively high status in Japan, in theory.140 Nevertheless,

Japanese courts have been reluctant to give international treaties a significant impact in

practice. In the following, the reader will be presented with a brief background on litigation in

Japan, followed by an examination of the courts’ general openness towards human rights

treaties in the domestic legal order.

3.3.1 Litigation in Japan

Japan is conventionally classified as a civil law system, relying on statutes rather than

precedent for the protection and advancement of human rights.141 Because judicial decisions

are not binding on later cases under Article 76 (3) of the Constitution, litigation can be

134 Judgt Tokyo High Court (2 Sept. 1992) 39 Shōmu Geppō 1060. 135 Judgt Osaka High Court (27 Oct. 2005). 136 Webster, T., 2010, p. 245; and Iwasawa, Y., 1998, p. 95. 137 See, e.g., Courtroom Note-taking case, Supreme Court (Grand Bench) (8 Mar 1989) 43 Minshū 89; and Sunagawa case, Supreme Court (Grand Bench) (16 Dec. 1959) 13 Keishu 3225. 138 Iwasawa, Y., 1998, pp. 2 and 95-98. See also Judgt Tokyo District Court (10 Sept. 1966) 17 Rōminishū 104. 139 Ibid, p. 98. 140 Ibid, pp. 34 and 99. 141 Taylor, V., et al., 2008, p. 3.

33

uncertain and risky.142 Additionally, it is time-consuming; on average, cases take at least five

years or more to litigate through the District Court level.143 The court decides which party

shall bear the court cost, which is usually the defeated, however, the winning party will still

have to pay its own attorney fees.144 This makes litigation costly, especially since the awards

are meagre.145 Litigation is also unattractive in Japan for cultural reasons. The more prevalent

system of dispute resolution is mediation through a bureaucratic consensus system. Women

who attempts to litigate instead of going through this system will likely receive criticism from

others, and taking legal action against an employer’s discriminatory practice could ruin her

chances of finding a new job.146

Further, the judiciary has a reputation for passivity, and Japanese courts have been accused of

being conservative reflectors of social consensus. 147 Ramseyer and Rasmusen argue that

Japanese judges “parrot” the positions of the ruling Liberal Democratic Party (LDP)148, and

that judges who defer on sensitive political questions will do better in their careers. 149

However, others disagree with such characterisations of Japanese courts. For example,

Upham points out important cases in which the courts have been catalysts for social change,

especially in the fields of employment, divorce and discrimination.150 A good case to illustrate

this judicial activism, although neither a case on human rights nor the application of treaties,

is the 1977 Shioda case. 151 The litigant, Mr. Shioda, was employed by a broadcasting

company to read news segments at 6 a.m. and got fired after he had twice overslept and

missed the broadcast. Hardly blameless, he still decided to sue the company for wrongful

discharge. To win, he had to overcome statutory language giving both parties in an

142 Geraghty, Kristina T. “Taming the Paper Tiger: A Comparative Approach to Reforming Japanese Gender Equality Laws”, Cornell International Law Journal, Vol. 41, Iss. 2, Summer 2008, Art. 6, p. 508. 143 Barrett, K., 2004, p. 7. 144 Supreme Court of Japan. Outline of Civil Procedure in Japan. 2017, p. 23. PDF retrieved from: http://www.courts.go.jp/english/judicial_sys/index.html, accessed 2018-10-02. 145 Geraghty, K.T., 2008, pp. 518 and 523. 146 Iwasawa, Y., 1998, p. 215. 147 See, e.g., Haley, John O., “Constitutional Adjudication in Japan: Context, Structures, and Vales”, Washington University Law Review, Vol. 88, 2011, p. 1467; and Law, David S., “Why Has Judicial Review Failed in Japan?”, Washington University Law Review, Vol. 88, 2011, p. 1425. 148 The LDP is a conservative party that has completely dominated Japanese politics in the post-war era. Since it was founded in 1955, the LDP has spent a mere four years out of office. See, e.g., Stockwin, Arthur. (2018-01-19). “Explaining the One-Party Dominance in Japanese Politics”, East Asia Forum. Available at: http://www.eastasiaforum.org/2018/01/19/explaining-one-party-dominance-in-japanese-politics/, accessed 2018-10-13. See also Luera, M.C., 2004, pp. 638-639. 149 Ramseyer, J. Mark, Rasmusen, Eric B., “Why are Japanese judges so conservative in politically charged cases?”, American Political Science Review vol. 95, no. 2, 2001, p. 331. 150 Upham, Frank, “Stealth Activism: Norm Formation by Japanese Courts”, Washington University Law Review, Vol. 88, No. 6, 2011, pp. 1493-1494. 151 Shioda v. Kochi Broadcasting case, Supreme Court (31 Jan. 1977) 268 Rōdō Hanrei 17.

34

employment relationship the freedom to terminate without any reason. Despite this, the

Supreme Court ruled in his favour. The Court meant that the company’s reaction appeared

unreasonably severe and declared the dismissal null and void as inconsistent with the

“common sense of society” under the general clauses of the Civil Code. 152 Within the

employment sphere, the judiciary has also played an important role when it comes to

combating sex discrimination. Starting from the 1960s, courts began to nullify discriminatory

practices as contrary to “public order and good morals” under Article 90 of the Civil Code.153

Courts repeatedly embraced this doctrinal approach for decades, and there will be reason to

further discuss this later (Section 4.1.2). For now, it is enough to note that Japan is a non-

litigious society where the courts rarely initiate social change, although history does not show

a complete lack of judicial activism.

3.3.2 The Judiciary’s Openness Towards Human Rights Treaties

Japan ratified several international human rights instruments in the late 1970s and early

1980s, signalling a new openness to international human rights law. The judiciary, however,

took a rather dim view of international law at the time. Japanese courts were unresponsive to

claims based on human rights treaties and either denied such treaties direct applicability or

completely ignored the claims. 154 This started to change in the 1990s, and in the new

millennium, courts have increasingly applied international human rights treaties in

litigation.155 This gradual openness towards such treaties can be illustrated by the changing

attitude towards the ICCPR. Today, case law affirms the direct applicability of the ICCPR,156

but in early judgments, the ICCPR was either denied direct effect or not applied despite that

courts recognised its ‘self-executing power’.157 The turning point came in 1993, when the

Tokyo High Court ruled that the ICCPR was directly applicable and for the first time

overruled a conflicting rule of domestic law.158 Webster writes that “the decision expanded

152 Upham, F., 2011, pp. 1495-1496. 153 Ibid, pp. 1499-1500. 154 Webster, T., 2010, p. 242. 155 Ibid, pp. 242-243. 156 See, e.g., Judgt Osaka District Court (27 April 1994); Judgt Tokushima District Court (14 March 1996); Judgt Takamatsu High Court (28 Oct. 1994); and Judgt Tokyo High Court (3 Feb. 1993) Gaikokujin Hanzai Saibanreshū 55. See Shin, H.B., in Shelton, D. (ed.), 2011, pp. 368-369. 157 This was evident, e.g., in the Courtroom Note-Taking case (1989) and the Fingerprinting system case, Osaka High Court (23 Dec. 1986). See Webster, T., 2010, p. 250. 158 Judgt Tokyo High Court (3 Feb 1993) Gaikokujin Hanzai Saibanreshū 55. The lower court, however, had deferred to domestic law despite it evidently conflicting with the ICCPR’s guarantee of free interpretations services in a criminal trial under Article 14.

35

Japanese courts’ horizon of legal standards from the domestic to the international plane”.159 In

1997, the Takamatsu High Court applied the ICCPR, and even expanded the scope of the

treaty provision subject matter by using Article 6 of the European Convention on Human

Rights as an interpretive standard.160 In another 1993 case, the Osaka District Court used the

anti-discrimination provisions of the ICCPR and ICESCR to interpret domestic law in a

dispute between private individuals, despite stating that the treaties were not directly

applicable to non-state action.161 Further, the International Convention on the Elimination of

All Forms of Racial Discrimination (CERD), has been applied in substance as an ‘interpretive

standard’, although denied direct applicability between private persons.162 Further, in 2013,

the Supreme Court ruled that limited inheritance rights for children born out of wedlock were

unconstitutional, and referred to concluding observations of the treaty bodies of the ICCPR

and the Convention of the Rights of the Child.163 According to Webster, Japanese judges have

“gradually warmed to claims brought under international law”. 164 However, the direct

application of human right treaties has, by large, been restricted to certain provisions under

the ICCPR. Although the ICESCR was used as an interpretive standard by Osaka District

Court in 1993, it has not been directly applied and remains a potentially rich source of rights

that Japanese judges have not tapped.165

The direct applicability of human rights treaties is closely linked to the rank of such treaties.

Iwasawa claims that Japanese courts are wary of recognising the direct applicability of treaties

because they will override domestic statutes. This makes courts not very receptive to

arguments relying directly upon treaties. 166 And, strategically speaking, plaintiffs rarely rely

on treaties to the exclusion of domestic law. At best, they append treaty rights to

corresponding constitutional rights. 167 If there is domestic legislation in place, courts

generally attempt to circumscribe the protective ambit of the treaty rule to that occupied by

statutory law. But when judges are unable to square the statutory circle, they may use 159 Webster, T., 2010, p. 254. 160 Judgt Takamatsu High Court (25 Nov. 1997) 1653 Hanrei Jihō 117. This case also dealt with Article 14 of the ICCPR, but this time relating to the right to counsel in a civil case. See Webster, T., 2010, pp. 254-255. 161 Judgt Osaka District Court (18 June 1993) 1468 Hanrei Jihō 122. See Webster, T., 2010, pp. 256-257. 162 See, e.g., Bortz v. Suzuki case, Shizuoka District Court (12 Oct. 1999), 1045 Hanrei Taimuzu 216; Arudou v. Eath Cure case, Sapporo District Court (11 Nov 2002), 1150 Hanrei Taimuzu 185. Webster writes that these lawsuits have helped blur the public-private divide (Webster, T., 2010 pp. 266-267). 163 Judgt Supreme Court (Grand Bench) (4 Sept. 2013) 67 Minshū 6. Article 900 (4) of the Civil Code provided that children born out of wedlock were entitled to receive only half as much as children born in wedlock. 164 Webster, T., 2010, p. 242. 165 Ibid, p. 251. See e.g. Shiomi v. Minister of Public Health case (1989). 166 Iwasawa, Y., 1998, pp. 81-82. 167 Webster, T., 2010, p. 246.

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international law as a supplementary yardstick by which to evaluate conduct. 168 This

illustrates that direct application is only one effect international treaties can have in domestic

law; they can also have an impact through ‘indirect application’, which is what happens when

the courts use treaties as interpretive standards.169 In cases of indirect application, the legal

character of the international instrument is not as important. Once, the Supreme Court of

Japan even used the generally non-binding UDHR as an aid in the interpretation of the

Constitution, significantly broadening the protection of human rights under it.170 But the

stronger its legal character, the greater its authority.171

It is hard to say exactly to what extent a treaty used as an ‘interpretive standard’ impact the

reasoning of judges, but in several cases, international human rights treaties have had an

apparent impact although not being directly applied by the court. For example, in the 1989

Courtroom Note-Taking case, a lawyer challenged the prohibitions of note-taking in

courtrooms, invoking Article 21 of the Constitution and Article 19 of the ICCPR. Both

stipulated freedom of expression but the ICCPR provided specifically for this to include

expression “in writing”. Although the ICCPR was not direct applied, its explicit right to take

notes evidently affected the judges interpretation of the Constitution, leading to the conclusion

that that the restriction was unreasonable.172 Webster goes as far as to claim that judges, even

when they seemingly use the CERD and ICCPR as interpretive standards, in fact, have

applied the provisions directly in several cases, which would indicate a significant impact of

treaties even when judges claim not to apply the treaty directly.173 However, even when courts

have explicitly recognised that the provisions of the ICCPR are directly applicable, in most

cases, final judgments are based solely on domestic law.174 Further, judges are generally

reluctant to find violations of human rights treaties. Courts tend to assume that statutes should

be construed in conformity with treaty obligations.175 Therefore, even though courts assume

that the ICCPR is generally directly applicable, they have rarely found any domestic law to be

168 Webster, T., 2010, p. 245. 169 Indirect interpretative effect means that the treaty rule is used primarily as the basis for interpreting another legal norm (McCrudden, in Roberts, et al., 2018, pp. 479-481). 170 Judgt Supreme Court (18 Nov 1964) 18 Keishū 579, 582. The provision subject matter was Article 14 of the Constitution and the to whom the phrase ‘all nationals’ is applicable to. 171 Iwasawa, Y., 1998, pp. 82-85. 172 Courtroom Note-Taking case (1989); and Iwasawa, Y., 1998, pp. 86-87. See also Korean National Pension case Tokyo High Court (23 June 1993), 46 Kōminshū 43. 173 See Webster, T., 2010, p. 266. 174 Shin, H.B., in, Shelton, D. (ed.), 2011, pp. 368-369. See, e.g., Judgt Hiroshima High Court (27 April 1999); and Judgt Hiroshima High Court (28 April 1999). 175 Sloss, D., in Hollis, D.B. (ed.), 2012, p. 380. This is sometimes called a ‘presumtion of conformity’.

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inconsistent with said Covenant.176 More ambiguous treaty obligations, phrased as goals to be

achieved progressively, such as the ICESCR, are even more unlikely to overturn domestic

law.177 The often-cited 1993 Tokyo High Court case, in which the court overruled domestic

law, therefore appear a rare exception. The tendency to assume conformity with treaty

obligations is particularly evident when the domestic rule in question is found in the

Constitution. Japanese courts generally defer to the level of protection offered by the

Constitution, seemingly unwilling to recognise international human rights treaties as

providing a higher level of protection.178 Hayashi writes that “judges' attitude towards the

scope of international human rights law does not go beyond the scope of human rights

protection under the Japanese Constitution” and, therefore, Japanese judges do not find any

need to study international law.179

3.4 Appraisal

The vast majority of Japanese scholars take the view that treaties that have been ratified and

published have domestic force of law by virtue of Article 98 (2) of the Convention. Hence,

Japan is a monist state. However, not all treaties that have the domestic force of law are also

directly applicable. The precision of the international rule is of primary importance for the

question of direct applicability. The intent of the parties is also important, as a negative intent

can exclude direct application. Further, the context in which the treaty is invoked need to be

considered. Depending on the type of conduct (action or omission), the state of domestic law,

and whether the alleged violator is the state or a private actor, courts may be more or less

willing to ascribe a treaty provision direct applicability. As for the rank of treaties, most

scholars take the view that treaties rank higher than statues but not as high as the Constitution.

In practice, Japanese courts have been reluctant to directly apply international human rights

treaties, although they have grown more willing to accept such claims. Rather, Japanese

courts claim to use treaties as ‘interpretive standards’. Even when not directly applied, such

treaties can have an apparent impact. However, the courts rarely find a violation of a treaty,

and usually defer to the level of protection offered by the Constitution. The courts willingness

to accept claims based specifically on the CEDAW will be examined below (Section 4.3).

176 Iwasawa, Y., 1998, p. 82. 177 Webster, T., 2010, p. 245. 178 Ibid, p. 245. 179 Hayashi, Y, 2013, p. 350.

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4. Implementation and Enforcement of the CEDAW in Japan

In this Chapter, the implementation and application of the CEDAW will be examined. This

includes an examination of legislation implementing the obligations under the CEDAW as

well as court cases invoking the Convention. First, however, the protection against sex

discrimination in the labour market before the ratification of the CEDAW will be addressed.

In the final section, obstacles for implementation and application will be presented.

Throughout the whole Chapter, criticism from the CEDAW Committee is recited to highlight

shortcomings and deficiencies of the measures undertaken.

4.1 Protection against Sex Discrimination prior to Ratification

4.1.1 Statutory Provisions

The Constitution of Japan contains the oldest prohibitions of sex discrimination in Japanese

law. The most fundamental one is Article 14 (1), declaring equality between the sexes by

stating that “[a]ll of the people are equal under the law and there shall be no discrimination in

political, economic or social relations because of race, creed, sex, social status or family

origin” [emphasis added].180 Apart from this provision, issues of equal opportunities for men

and women are addressed in Article 24 (mentioning “the equal rights of husband and wife”

and “the essential equality of the sexes”); and in Article 44 (prohibiting sex discrimination

regarding the qualifications of members of the Diet). In addition to these provisions, Article

27 (1) of the Constitution prescribes the right for “all people” to work and Article 27 (2)

requires the state to enact laws regulating terms and conditions of employment. Importantly,

the prohibition of sex discrimination in Article 14 applies directly only to state action.181

Further, the courts have restricted the scope of application through interpreting it as only

prohibiting ‘unreasonable’ discrimination. Whether there are ‘reasonable grounds’ for

discriminatory treatment or not depends on the facts of the specific case, as well as the

political and social conditions at the time of the action.182 Hence, the condition that the

practice must be ‘unreasonable’ lacks a precise definition and will change over time.183

180 Kimura, K., in Centeno, et al. (eds.), 2010, p. 156. 181 Takano v. Mitsubishi Plastics Co. case, Supreme Court (12 Dec. 1973) 27 Minshū 1536; Sasaki v. Iron and Steel Federation case, Tokyo District Court (12 Dec. 1986) 156 Zeimu Soshō Shiryō; and Nakamoto v. Nissan Motors, Supreme Court (24 March 1981) 35 Minshū 300. See also Upham, F., 2011, p. 1499. 182 See, e.g., Judgt Supreme Court (Grand Bench) (27 May 1964) 18 Minshū 676, referred to in the Remarriage case, Supreme Court (Grand Bench) (16 Dec. 2015). 69 Minshū 8 183 Geraghty, K.T., 2008, p. 506.

39

Before the ratification of CEDAW, the only prohibition of sex discrimination in the private

sector was found in the Labour Standards Act (LSL).184 Article 4 of the LSL states that “[a]n

employer shall not engage in discriminatory treatment of a woman as compared with a man

with respect to wages by reason of the worker being a woman” [emphasis added].185 Such

discriminatory treatment is nullified in accordance with Article 13 of the LSL. An example of

an unproblematic application of the LSL is the Akita Sogo Bank case, in which the employer

applied different wage schemes for female and male employees. Men automatically received a

higher pay that employees were entitled if they had ‘head-of-household’ responsibilities,

while females had to prove their right to the extra pay.186 This discriminatory practice was

declared illegal and nullified by the court.187 However, the scope of the LSL is narrow as it

only applies to direct discrimination with respect to wages, and the discriminated worker

bears the burden of proof for unfavourable treatment by reason of sex. If a non-gender based

justification is provided by the employer, Article 4 of the LSL permits disparate pay.188

Further, in determining whether a woman is discriminated with regard to wages, her job must

be ‘equal’ to the job a man does but gets paid more for. However, the LSL does not provide

any guidance on this matter, which has been problematic as jobs in Japan often are vaguely

defined; by referring to small and seemingly insignificant differences, employers can easily

circumvent the prohibition. Instead, the most important effects of the LSL emanated from its

protectionist provisions. These protected women from harmful work during pregnancy and

allowed pregnant women to request transfer to light duty jobs.189

4.1.2 The ‘Public Order Doctrine’ under Article 90 of the Civil Code

Since the Constitution and the LSL did not provide adequate legal protection from

discrimination against women in the labour market, the courts eventually stepped in to help

remedy some of the problems.190 The 1966 Sumitomo Cement case should come to mark a

milestone by creating a legal standard later called the ‘public order doctrine’. In this case, a

184 Iwasawa, Y., 1998, p. 213. 185 Sakuraba, Ryoko, “Employment Discrimination Law in Japan: Human Rights or Employment Policy?”, in New Developments in Employment Discrimination Law, Blanpai, Roger, (ed.), 2008, Wolters Kluwer Law & Business, Austin, pp. 182-183. 186 Akita Sōgo Bank, Akita District Court (10 April 1975) 778 Hanrei Jihō 27. Hanami, Tadashi A., Komiya, Fumito, Labour Law in Japan, 2011, Kluwer Law International, Alphen aan den Rijn, pp. 142-143. 187 Article 13 of the LSL. 188 Geraghty, K.T., 2008, p. 506; Okuyama, Akira, “Equal Pay in Japan”, in Equal Pay Protection in Industrialised Market Economies: In Search of Greater Effectiveness, Eyraud, Francois, et al. (eds.), 1993, International Labour Office, Geneva, pp. 98-99; and Sakuraba R., in Blanpai, R. (ed.), 2008, p. 183. 189 Geraghty, K.T., 2008, pp. 506-507. See Article 65 of the LSL. 190 Geraghty, K.T., 2008, p. 507; and Iwasawa, Y., 1998, p. 213.

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woman sued her employer for firing her when she refused to resign upon marriage, which the

employment regulation required women to do. The Supreme Court noted the economic

hardship this imposed on women and concluded that it restricted the freedom to marry under

Article 24 of the Constitution. But this rule was not directly applicable to private action, and

the Court therefore turned to the Civil Code. Articles 1 and 2 of the Civil Code provides that

the Code shall be interpreted from the standpoint of the dignity of the individual and the

essential equality of the sexes. These articles are supplemented by Article 90, stating that any

juristic act whose object is such as to be contrary to public order or good morals is null and

void. Despite that the discriminatory practice was virtually universal, the Court inferred to the

ideals of equality they found embodied in the Constitution and held that the practice

constituted unreasonable discrimination.191 This doctrine was repeatedly applied from the

1960s to the 1980s in cases in which women were forced to retire upon childbirth, pregnancy

and marriage,192 or at a mature age younger than men,193 and in cases on the singling out of

women for layoff during hard economic times.194 The criterion ‘public order’ refers to the

conception of the Japanese public and allows the courts wide discretion.195 Additionally, the

case law that developed under Article 90 of the Civil Code was not effective in eliminating all

types of sex discrimination, since courts proved to be more unwilling to apply the doctrine in

some areas of employment than others 196 Courts did not hold wage disparity between men

and women to be against public order in firms with sex-segregated personnel system,197 and

were unwilling to find practices contrary to public order in recruiting or during employment

because of employers’ historically wide discretion in those areas.198

191 Suzuki v. Sumitomo Cement, Tokyo District Court (20 Dec 1966). See Geraghty, K.T., 2008, p. 507; and Upham, F., 2011, pp. 1499-1500. 192 See, e.g., Hokoku Sangyo, Kobe District Court (26 Sept. 1967) and Mitsui Shipbuilding Co., Osaka District Court (10 Dec 1971) 22 Rōminshū 1163. 193 See Tokyu Kikan Kogyo, Tokyo District Court (1 July 1969), Nagoya Broadcasting, Nagoya High Court (30 Sept. 1974), Izu Cactus Park, Tokyo High Court (26 Feb. 1975), and Nakamoto v. Nissan Motors case (1981). 194 See Upham, F., 2011, p. 1500 and, e.g., Watanabe v. Furukawa Mining, Maebashi District Court (5 Nov. 1970) 21 Rōminshū 1475. In this case, however, although the doctrine was applied, the Court accepted Furukawa Mining’s practice of singling out married women for discharge during a recession, since they could rely on their husbands’ income, even though the company had not done anything to verify this assumption. 195 See, e.g., Watanabe v. Furukawa Mining. case (1970), supra note 194; and Karatsu Hospital, Saga District Court (8 Nov. 1977) 881 Hanrei Jihō 149. In this case, the Court accepted justification for earlier retirement age for women because they “physically deteriorate” earlier. Upham, however, calls this the “only case known to me upholding different retirement ages”, and it was later settled in the plaintiff’s favour (Upham, Frank K., Law and Social Change in Postwar Japan, 1987, Harvard University Press, Cambridge, Massachusetts, p. 247). 196 Sakuraba, R., in Blanpai, R. (ed.), 2008, p. 185. 197 See Nihon Tekko Renmei case, Tokyo District Court (4 Dec. 1986). 198 Sasaki v. Iron and Steel Federation case (1986) and Takano v. Mitsubishi Plastics Co. case (1973). See also Geraghty, K.T., 2008, pp. 507-508.

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4.2 CEDAW and the Legislature

At the time of the ratification of the CEDAW, Japanese women were discriminated in

practically all areas of employment. Employers often required female employees to be under a

certain age and to live at home with their parents, and primarily gave them jobs to assist male

co-workers. Women were often described as ‘office flowers’ that needed to be replaced from

time to time, and the ideal of women quitting work upon marriage or pregnancy continued to

dominate despite the praxis under the public order doctrine.199 That being said, Japan clearly

had a lot of work to do in order to reach the goals of the CEDAW. Although the obligations

under said Convention require a lot more than legislation, legal reforms undertaken is still a

good starting point in examining the implementation. Despite that government officials had

emphasised that the CEDAW had a progressive character during the considerations by the

Diet, it was obvious that legislation needed to be enacted before Japan could ratify the

CEDAW. Since Japan ratified the CEDAW five years after signing it, the Diet was given

ample opportunity to adjust legislation to the obligations imposed by the Convention.200

As part of Japan’s ratification process, the Equal Employment Opportunity law (EEOL) 201

was enacted in 1985. The EEOL essentially codified the public order doctrine that had

developed in courts over the previous two decades.202 Yet, the proposed law generally met

strong opposition, but was adapted to rectify the lack of statutory law guaranteeing the same

employment opportunities for both men and women, required under Article 11 (1) of the

CEDAW.203 The 1985 EEOL sought to eliminate direct discrimination in certain areas of

employment. While some provisions were mandatory, employers were only obliged ‘to

endeavour’ to treat men and women equally in recruiting, hiring, assignment and

promotion.204 These ‘best effort duties’ turned out to be easy to circumvent; upon enactment

of the EEOL, the business sector responded by creating a two-track employment system, with

one clerical and one management track.205 For entering the management track employers

adapted seemingly gender neutral criteria that helped keep the sexes separated, such as

199 Iwasawa, Y., 1998, p. 213. 200 Ibid, p. 215; and Webster, T., 2010, p. 248. 201 Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment 202 Upham, Frank, “Stealth Activism: Norm Formation by Japanese Courts”, Washington University Law Review, Vol. 88, No. 6, 2011, 1501. 203 Hayashi, Y., 2013, p. 343; and Iwasawa, Y., 1998, p. 215. 204 Sakuraba, R., in Blanpai, R. (ed.), 2008, p. 187; and Geraghty, K.T., 2008, p. 510. 205 Ogawa, Reiko, “Japan: From social reproduction to gender equality”, in Women, Work and Care in the Asia-Pacific, Baird, Marian, Ford, Michele, Hill, Elizabeth (eds.), 2017, Routledge, London, p. 203.

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requiring the employee to work extremely long hours and relocate easily.206 Even today, this

track-based system of employment remains a concern of the CEDAW Committee, since the

system contributes to horizontal and vertical segregation in the labour market.207 Another

problem with the 1985 EEOL was the lack of an enforcement mechanism and sanctions

corresponding to the employers obligations. Even the mandatory provisions had no other

backing than mediation, which could be commenced only if the employer agreed to it.208

Critics suggested that Japan had failed in its obligation to adopt “appropriate […] measures,

including sanctions where appropriate” under Article 2 (b) of the CEDAW.209 It did not take

long to realise that the EEOL was too weak, which led to the enactment of the 1997 EEOL.

The amended law eliminated the obligation ‘to endeavour’ and replaced it with an outright

prohibition.210 Importantly, it also added provisions on sexual harassment in the workplace,

obliging employers to actively prevent employees from engaging in sexually harassing

behaviour.211 The 1997 EEOL also eliminated the requirement of an employer’s agreement to

mediation, bringing improvements in the enforcement mechanism. In addition, it created a

new system of enforcement by publication, under which the Minister of Labour could publish

the name of violators of the EEOL.212 However, the EEOL still did not address the issue of

indirect discrimination, which led to tough criticism from the CEDAW Committee in 2003.213

Through the most recent EEOL reform, in 2006, indirect discrimination finally came to be

prohibited. However, rather than defining the concept in the law, the task was delegated to the

Ministry of Health, Labour and Welfare (MHLW). 214 Article 2 (1) of the MHLW

Ordinance215 recognises three forms of indirect discrimination: (i) height, weight or physical

strength requirements in hiring and recruiting, (ii) requiring management-track employees to

accept transfers to any location in Japan, and (iii) mandating that promotion candidates have

previously been transferred to other locations. If an employer cannot show that there is a

legitimate reason for such criteria, the measure constitutes indirect discrimination in violation

206 Geraghty, K.T., 2008, pp. 511-512 and Iwasawa, Y., 1998, p. 223. 207 CEDAW, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Japan (7 March 2016), para 34 (b). 208 Iwasawa, Y., 1998, p. 220. 209 Ibid, p. 218. 210 Barrett, K., 2004, p. 6. 211 Article 21 and 27 of the 1997 EEOL. See Barret, K., 2004, p. 6; and Geraghty, K.T., 2008, pp. 516-517. 212 Iwasawa, Y., 1998, pp. 215-218 and Geraghty, K.T., 2008, p. 540. 213 See CEDAW, Concluding Observations on the Fourth and Fifth Periodic Reports of Japan (18 August 2003). 214 Article 7 of the EEOL. 215 MHLW Ordinance (No. 2, Jan. 1986). Ordinance implementing the Law on Securing, Etc. of Equal Opportunity and Treatment of Men and Women in Employment.

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of the EEOL.216 As evident, this conception of indirect discrimination is much more narrow

than that of the CEDAW. Further, even though the scope of the revised EEOL was expanded

to cover new areas, such as ‘encouragement of retirement’, the prohibitions of direct

discrimination in Articles 5 and 6 still do not include all areas in which women suffer from

discrimination. In addition, the MHLW Notification lists measures not to be construed as sex

discrimination violating Articles 5 and 6, i.e. exceptions from the prohibitions, which includes

duties that “necessarily only male or female applicants should carry out due to religious

reasons, public morals, […] or due to the nature of the business”. 217 The lack of a

comprehensive definition of discrimination that “encompasses both direct and indirect

discrimination in both the public and private spheres”, in line with Article 1 of the CEDAW,

therefore remains a serious concern of the Committee.218 Additionally, the EEOL still lacks an

effective enforcement mechanism. Publication remains the only ‘sanction’, and this response

to non-compliance is never utilised. 219 Although employers have a responsibility under

Article 11 (1) to create a working environment free sexual harassment, the CEDAW

Committee has also criticised Japan for the lack of an adequate prohibition and sanctions for

sexual harassment.220 The more positive aspects of the 2006 EEOL include measures to

implement Article 11 (2) (a) of the CEDAW, through the subsections of Article 9, stating that

an employer may not without valid reason fire a female worker during pregnancy, within one

year of giving birth, or for requesting child care leave.221

Another legislative measure aimed at achieving gender equality is the 1999 Basic Act for

Gender Equal Society (Basic Law), with the goal to provide government agencies and

organisations with ideal principles of gender equality to strive for.222 Based on the principles

of the Basic Law, the government has improved its policy framework aimed at accelerating

the elimination of sex discrimination through adopting Basic Plans for Gender Equality. 216 Article 7 of the EEOL. Other discriminatory practices are not considered indirect discrimination under the EEOL but could possibly be considered such in court on other basis, such as being contrary to ‘public order’. 217 MHLW Notification (No. 614, Oct. 2006). Guidelines on Ways for Employers to Take Appropriate Measures with Regard to Items Stipulated in the Provisions Concerning the Prohibition of Discrimination Against Workers on the Basis of Sex, etc., para. 14 (2) (3). See also Geraghty, K.T., 2008, p. 521. 218 CEDAW, Concluding Observations (2016), para 10. 219 Nemoto, Kumiko, Too Few Women at the Top: The Persistence of Inequality in Japan, 2016, Cornell University Press, Ithaca, p. 53. See also Geraghty, K.T., 2008, pp. 523 and 540. 220 CEDAW, Concluding Observations (2016), para 34 (d). What is required from employers are specified in MHLW Notification (No. 615, Oct. 2006). Guidelines Concerning Measures to be Taken by Employers in terms of Employment Management with Regard to Problems Caused by Sexual Harassment in the Workplace. 221 Hence, these articles cover most forms of matahara. In Judgt Supreme Court (23 Oct. 2014) 1100 Rōdō Hanrei 5, the Court ruled that permanent derogation of a woman who had asked for less heavy work during her pregnancy (in accordance with Article 65 (3) LSL was contrary to Article 9 (3) of the EEOL. 222 Geraghty, K.T., 2008, p. 518.

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These set up statistical targets for female representation in political, public and private life.223

The CEDAW Committee welcomed these policies, however, the Committee expressed

concern over the lack of statutory temporary special measures aimed at accelerating de facto

equality between men and women in political and public life. Instead, less effective voluntary

initiatives are used. 224 Also in the previous Concluding Observations, the CEDAW

Committee noted “with regret” the lack of temporary special measures.225

Other significant laws have been adopted since the ratification of the CEDAW, such as the

1991 Child Care Leave Act, later revised and renamed the Child Care and Family Care Leave

Act (CCFCLL). The CCFCLL grants both female and male employees the right to child care

leave upon the birth of a child.226 Employees are also granted the right to take five unpaid

leave days to take care of a sick child, and the CCFCLL states that employers shall take

measures to facilitate shorter working hours for employees with young children.227 Despite

these, and more recent improvements228, the CEDAW Committee has urged Japan to intensify

its efforts to promote the use of flexible working arrangements, encourage men to participate

equally in childcare responsibilities, and ensure the provision of adequate childcare

facilities.229 In the most recent concluding observations, however, the Committee welcomed

the progress made through the adoption of the 2015 Act on the Promotion of Female

Participation and Career Advancement in the Workplace and the Revised Part-time Labour

Act in 2014, which improves the treatment of part-time workers, most of whom are women.230

The former law obliges national and local governments, as well as large companies, to

formulate action plans and publicly disclose information regarding the employers’ aims to

achieve in promoting women’s participation.231 However, there are no maximum or minimum

standards for these goals and no sanctions when employers fail to reach them. Rather,

223 The latest are Third Basic Plan for Gender Equality (2010) and Fourth Basic Plan for Gender Equality (2015). 224 CEDAW, Concluding Observations (2016), para 30 (b). 225 CEDAW, Concluding Observations on the Sixth Periodic Report of Japan (7 August 2009), para 27. 226 Paid leave is generally possible for one year, which can be extended to two years if no daycares are available (Articles 2-16 of the CCFCLL). Allowance is paid in accordance with the Health Insurance Act and Employment Insurance Act. However, to be entitled to child care allowance, workers must have been employed by the same employer for at least a year, not on a fixed-term contract. Nearly 60 per cent of the women choose not to utilize the leave as they exit the labour force when having their first child (Mun, Eunmi, Brinton, Mary, C., “Workplace Matters: The Use of Parental Leave Policy in Japan”, Work and Occupations, Vol. 42, Iss. 3, p. 337). 227 Article 16 (2) and Article 23 (1) of the CCFCLL. 228 These improvements include the 2012 Revised Law for the Center for Early Childhood Education and Care, and Act on Child Education and Childcare Support. 229 CEDAW, Concluding Observations (2016), para 35 (b). 230 Ibid, para 4 (a) and (b). 231 Article 8 of the Act on the Promotion of Female Participation and Career Advancement in the Workplace.

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employers who have good practices will be given favourable treatment in public

procurement.232

As evident, the Diet actively engaged in the implementation process of the CEDAW upon

ratification through the enactment of the EEOL. In addition, other laws have been adopted

and revised in order to improve the situation of Japanese women. Many of these legislative

reforms are the outcome of the demographic challenges that Japan is facing. One example is

the CCFCLL. Proposals to establish a right to childcare leave had been made by opposition

parties since the early 1980s and legislation finally passed in the early 1990s in response to an

unexpected decrease in the birth rates.233 Another example is the Basic Plans for Gender

Equality, recognising that Japan must create a gender-equal society “to solve problems caused

by […] changed social conditions”, including the “ageing society and declining birth rates”.234

Although the Government of Japan has undertaken legislative measures, these are not enough

to fulfil several of the country’s obligations under the CEDAW. Besides the already

mentioned areas of concern, the CEDAW Committee has, for example, criticised Article 4 of

the LSL for not adequately enforcing the principle of equal pay for work of equal value, in

accordance with Article 11 (1) (d) of the CEDAW.235 However, while the Committee has

criticised Japan for its directly discriminating laws in areas other than employment236, such

laws in the employment sphere have apparently been repealed already. As a matter of fact, the

workplace is one of the few areas of international law where the Diet has repeatedly legislated

rather than ceded the importation of international human rights norms to the judiciary. 237

4.3 CEDAW and the Judiciary

Upon ratification of the CEDAW, the EEOL was enacted, and other laws have had a positive

impact on the situation for women in the labour market. However, not all provisions of the

Convention have yet been incorporated into national legislation and sex discrimination

remains a serious issue. Therefore, women have turned to courts to achieve further

advancements. Yoko Hayashi, herself a member of the CEDAW Committee, published an

article in 2013 examining the implementation of the CEDAW in Japan. At that time, the 232 Article 20 of the Act on the Promotion of Female Participation and Career Advancement in the Workplace. 233 Geraghty, K.T., 2008, pp. 513-514. 234 Third Basic Plan for Gender Equality (2010). 235 CEDAW, Concluding Observations (2016), para 34 (a). 236 For example laws stating different minimum ages for marriage, waiting period before women can remarriage and that married couples must use the same surname (see CEDAW, Concluding Observations (2016), para 12). 237 Webster. T., 2010, pp. 242-243 and 249-250; and Upham, F., 2011, p. 1501.

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Convention had been invoked by the parties and/or the judiciary in dozens of published cases

spanning over several areas of law.238 However, the courts had not relied on the Convention in

any of these cases. In other words, there were no court case in which the plaintiffs had

prevailed explicitly on the grounds of CEDAW. Hayashi writes: “The judiciary either simply

does not respond to the argument of international law, or dismisses such claims on the

grounds that international treaties are not self-executing or directly applicable in Japan”.239

In the article, she gives two examples of typical Japanese judicial interpretation of the

Convention. The first is the Kyoto Women’s Centre Case, in which the plaintiff was a part-

time counsellor arguing that her wages were disproportionately low in comparison with those

of full-time employees. She claimed that this violated Article 11 (1) of the CEDAW. The

Osaka High Court, however, dismissed her argument by interpreting the treaty provision as

merely declaring a rule to be respected at the international level, not establishing an individual

right. On that basis, the court found that the CEDAW was not directly applicable with regard

to the principle of equal pay for equal valued work.240 In the second example, a group of

married women who had adopted their husbands’ surnames upon marriage sued the

government. Under Article 750 of the Civil Code, married couples are forced to have the

same surnames and the women were seeking compensation for damages because of this

requirement. They claimed that Article 750 infringed their right to retain their original name

in accordance with both the Constitution and the Article 16 of the CEDAW.241 The Tokyo

District Court, however, dismissed the claim stating that “Although Article 16 of the CEDAW

obliges the state to ‘take all appropriate measures’ or ‘ensure’ to couples the same personal

rights as husband and wife, including the right to choose a family name, […] there is no

provision that the Convention directly grants such a right to an individual”. According to the

Court, the provision should be interpreted as States Parties ensuring each other that they will

secure this right through amending their domestic laws and policies. Hence, neither could

Article 2 (f) nor Article 16 be interpreted such that the rights under these articles are directly

applicable without enacting any domestic statute or regulation. 242 As discussed earlier

(Section 3.3.2), case law in Japan affirms the direct applicability of the ICCPR in Japan.

Therefore, this decision is construed either as a retrogressive interpretation of human rights 238 Hayashi, Y., 2013, p. 346. 239 Ibid, p. 348. 240 Kyoto Women’s Centre case, Osaka High Court (16 July 2009). See Hayashi, Y., 2013, pp. 348-349. 241 Over 96 per cent of women take their husband’s name upon marriage (White, Linda, Gender and the Koseki in Contemporary Japan: Surname, Power and Privilege, 2018, Routledge, London, p. 42). 242 Separate surname case, Tokyo District Court (29 May 2013). See Hayashi, Y., 2013, p. 349.

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treaties in general, or an interpretation which places the CEDAW as a less enforceable treaty

than the ICCPR.243 After Hayashi published her article, the High Court of Tokyo has also

ruled that the CEDAW cannot be recognised as directly applicable or self-executing.244

The Surname case was later appealed to the Supreme Court, which confirmed the

constitutionality of the rule.245 The same day, however, the Supreme Court struck down

Article 733 of the Civil Code, which prohibited women from remarrying within six months of

a divorce, while no such waiting period existed for men. 246 Interestingly, although the

majority did not mention the CEDAW in either case, two of the justices did. Justice Okabe

mentioned the Convention in passing and Justice Yamaura, who submitted dissenting

opinions in both judgments, mentioned the critique of the CEDAW Committee. In the

Remarriage case, Justice Yamaura called it an “important fact” that the CEDAW Committee

had declared the prohibition to remarry within six months a violation of the Convention. He

added that “[a]lthough these facts may not be direct grounds for the constitutional

interpretation in Japan, they can still be recognized as material facts that show the changes in

the social situation due to which the system of prohibition of remarriage is proved to be

contrary to the principle of equality of sexes that is applicable to a married couple and the

family as provided in Article 24 (2) of the Convention”.

Further, in the Sekiguchi v. Konami case, the Tokyo High Court held that the conduct of an

employer which degraded a female employee upon her return from maternity and child care

leave was illegal as it contravened her employment contract. The court ordered the defendant

to pay compensation. However, the court stated, without a substantive reason, that it was not

necessary to respond to the woman’s claim regarding violation of the CEDAW.247 In other

cases where the CEDAW has been invoked, however, Japanese courts have examined the

arguments and concluded that the measure in question was not contrary to the Convention,

arguably assuming sub silentio that the Convention is applicable.248

243 Hayashi, Y., 2013, p. 349, note 39. 244 Judgt Tokyo High Court (28 March 2014). 245 Separate surname case, Supreme Court (Grand Bench) (16 Dec. 2015) 1023 Heisei 26. 246 Remarriage case (2015). The majority, however, held that a 100-day waiting period was reasonable. 247 Sekiguchi v. Konami case, Tokyo High Court (27 Dec. 2011). 248 Iwasawa, Y., 1998, p. 63. See, e.g., Judgt Hiroshima High Court (28 Nov. 1991) 1406 Hanrei Jihō 3; Judgt Supreme Court (5 Dec. 1995) 1563 Hanrei Jihō 81, Judgt Tokyo District Court (16 Dec. 1987), 1268 Hanrei Jihō 22, 26; Judgt Tokyo High Court (22 Dec 2000) 796 Rōdō Hanrei 5 and Judgt Osaka High Court (16 May 2000). See also McCrudden, C., in Roberts et al., 2018, p. 480, note 120.

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4.4 Obstacles for Implementation and Enforcement

The CEDAW has set very ambitious goals, which itself makes the full implementation and

enforcement a challenging task. However, there are several tangible factors that impede the

process of implementation and enforcement of the Convention; some of a more general

character, relating to the legal instrument as such, and others more specific for Japan.

Throughout the study, a number of such factors have been mentioned. In the following, these

will be briefly summarised while others, not previously accounted for, will be presented in

more detail. Even though the obstacles are often interrelated and overlapping, they can be

divided into those of a more institutional character (Section 4.4.1) and those that relate to

cultural and social factors (Section 4.4.2).

4.4.1 Institutional Factors

In this Chapter, criticism of CEDAW Committee has been referred to in order highlight

shortcomings and deficiencies of the measures undertaken to implement the CEDAW. The

main concerns of the Committee are i) the lack of a comprehensive definition of

discrimination against women, ii) the lack of statutory temporary special measures and

incentives aimed at accelerating de facto gender equality, and iii) the general lack of effective

enforcement. As shown in Chapter 2, the lack of coercive aspects is also considered a major

flaw of the monitoring mechanism established under the CEDAW. Further, the fact that the

Convention is phrased in general terms and has certain elements of a programme make the

rights and obligations more difficult to enforce. States Parties to the CEDAW take on several

positive obligations to protect and fulfil women’s right to non-discrimination and enjoyment

of equality. As compared to negative obligations to refrain from discrimination, it is harder

for both the CEDAW Committee and the domestic courts to establish that a treaty obligation

has been violated when the conduct subject matter is an omission. The vague language of the

CEDAW is also related to the Japanese courts’ unwillingness to directly apply the

Convention. But, as shown in Chapter 3, the courts are reluctant to direct application of

international human rights treaties in general, and they rarely find that domestic laws violate

obligations under such treaties. Another obstacle for effective enforcement is that litigation is

expensive and time-consuming. Additionally, litigation is unappealing for cultural reasons.

The following Section will further examine cultural and social obstacles.

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4.4.2 Cultural and Social Factors

When the modernisation of Japan began in the late 1800s, it was important to create a strong

nation state promoting community. In this society, women were given the responsible for

cohesion in the domestic sphere. The term ryōsai kenbo (‘good wife, wise mother’) was

coined and popularised through the public education system. This feminine ideal encouraged

exclusive devotion to familial and domestic affairs.249 The rapid development in the post war-

economy came to consolidate the ideal of an urban ‘modern family’ with a male breadwinner

and a housewife. As Japan’s rapid economic development continued for decades, it

entrenched a male breadwinner employment system based on lifetime-employment and full

commitment.250 The shift towards the post-industrial economy increased the female labour

force participation as it was no longer sustainable to be full-time housewives. Although the

EEOL was enacted at this time, the government also adopted policies that helped to stall

gender equality in the labour market.251 For example, the government introduced tax breaks,

which still applies, for married couples in which one spouse earns less than 1.3 million yen

per year (approximately 12000 USD). If a woman makes more, she must earn a lot to

counterbalance the tax penalty received and will no longer be included in her husband's

pension plan.252 In the 1980s, the Government of Japan also decreased the funding of child

care centres, even though women’s work force participation was on the rise. These policies

had the combined effect of encouraging women to remain home as caregivers or work only

part-time, with the female labour force participation rate continuing to mirror an M-shaped

curve as a result.253 Although the government spending on childcare is now increasing, the

access to childcare is still a serious problem, which makes it difficult for women to combine

work and family life.254

Irrespective of policies creating disincentives for women to work, patriarchal attitudes and

deep-rooted gender stereotypes, such as the ryōsai kenbo ideal, constitute obstacles for equal

access to the labour market. The CEDAW Committee has expressed concern about such

249 Luera, M.C., 2004, p. 612. 250 Ogawa, R., in Baird, et al. (eds.), 2017, pp. 199-202. 251 Ibid, p. 203. Interestingly, Ogawa argues that EEOL impacted on the labour market in a contradictory manner, resulting in a divide between ‘core’ and ‘marginal’ workers based on gender, institutionalising indirect sex discrimination. 252 Geraghty, K.T., 2008, pp. 513-514. 253 Ibid, pp. 513-514. The M-shaped curve is mentioned above (Section 1.1). 254 Gelb, Joyce, Kumagai, Naoko, “Gender Equality in Japan: Internal Policy Processes and Impact and Foreign Implications under Prime Minister Abe’s Womenomics”, in Routledge Handbook of Japanese Foreign Policy, McCarthy, Mary M., 2018, Routledge, New York, p. 343.

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stereotypes continuing to be reflected in media as well as in educational textbooks in Japan.255

Pervasive stereotypes on the responsibilities of men and women are reflected in the unequal

division of labour. Even in dual-income couples, Japanese men spend an average of only 25

minutes per day on housekeeping and childcare, while working Japanese women spend an

average of more than four hours on such activities.256 Additionally, although the right to child

and family care leave under the CCFCLL applies to both men and women, it is unthinkable

for most Japanese men to take paternity leave.257 In 2015, only 2.65 per cent of the fathers

eligible for such leave actually used it, 258 and men are often exposed to ‘paternity harassment’

when taking leave to care for their children.259 As noted earlier (Section 4.2), the CEDAW

Committee has criticised Japan for the lack of affirmative action to encourage men’s shared

responsibility for childcare. According to Geraghty, it is necessary to adopt policies that

encourage men to take paternity leave in order ease the burden of child care on women.260

The Committee’s criticism about the lack of affirmative action also extends to quotas for

positions in political and public life, such as those in Basic Plans for Gender Equal Society. In

its most recent periodic report, however, Japan writes that “it is difficult to make obligatory

the implementation of a quota system by law or regulation”.261 Indeed, Japanese culture does

stress the value of ‘harmony’ and avoidance of social conflict. Several scholars point out this

‘consensus culture’ as an important obstacle for initiating reforms for gender equality.262

Iwasawa has described the EEOL as very Japanese in its approach, characterised by

voluntarism and gradualism, particularly manifested in the dispute settlement and

enforcement mechanism. 263 Not least the lack of effective sanctions has led to

characterisations of the EEOL as “guidance for employers”, rather than obligations with

255 CEDAW, Concluding Observations (2016), para 20; and Luera, M.C., pp. 611-612. 256 Geraghty, K.T., 2008, pp. 525. 257 Ibid, 2008, pp. 542-543. 258 Gelb J., Kumagai, N., in McCarthy, M.M., 2018, p. 338. 259 See, e.g., Otake, Tomoko (2014-01-24). “Over 1 in 10 men have experienced ‘Paternity Harassment: Survey”. The Japan Times. Available at: https://www.japantimes.co.jp/news/2014/01/24/national/social-issues/paternity-leave-harassment-revealed-in-union-survey/#.W78dJhMzaT8, accessed 2018-10-11; and Adelstein, Jake (2017-11-28). ”Paternity Harassment Lawsuit Brings Attention to Japan’s Low Birthrate and Workplace Bullying”. Forbes. Available at: https://www.forbes.com/sites/adelsteinjake/2017/11/28/paternity-harassment-lawsuit-brings-attention-to-japans-low-birth-rate-and-workplace-bullying, accessed 2018-10-11. The concept of ‘paternity harassment’ has the opposite purpose as compared to matahara. While fathers are pushed to focus on the work, mothers are encouraged to quit their jobs and focus on the child-rearing. 260 Geraghty, K.T., 2008, pp. 542-543. 261 CEDAW, Combined Seventh and Eighth Periodic Reports of Japan (September 2014), para 150. 262 See, e.g., Luera, M.C., 2004, pp. 611-643; Geraghty, K.T., 2008, pp. 517 and 540; Haley, J.O., 2013, pp. 496-497; and Starich, Megan L., “The 2006 Revisions to Japan’s Equal Employment Opportunity Law: A Narrow Approach to a Pervasive Problem”, Pacific Rim Law & Policy Journal Association, Vol. 16, No. 3, 2007, p. 570. 263 Iwasawa, Y., 1998, p. 220.

51

corresponding rights for employees that are claimable in court.264 For example, employers are

only permitted to take steps to help facilitate the situation of working mothers.265 Similarly,

the CCFCLL gives vague guidance for employers on the matter, which reflects a legislator

unwilling to interfere with the employers business operations.266 Luera even largely attributes

Japan’s failure to achieve a gender equal society to the government’s consensus-ruling, under

which legislation and politics must reflect social consensus in order to “preserve social

harmony”. She argues that the Government of Japan will not affirmatively act to change

society in the absence of a social or political consensus. Rather, “Japanese leaders wait for

social change to occur, and then adjust the law to conform to the new majority belief”.267

Notwithstanding the consensus culture, scholars agree with the CEDAW Committee that

temporary special measures are necessary for gender equality.268 However, it has been pointed

out that mandatory quotas with punitive sanctions may not fit Japan’s cultural and legal

climate.269 Rather, Geraghty suggests an incentive-based approach, giving real benefits to

companies that make policies favourable to women, such as easing the tax burden, and

thereby create incentives for recruiting and hiring more women.270

4.5 Appraisal

This Chapter has examined the implementation and application of the CEDAW by examining

Japanese legislation and court cases. It has also outlined obstacles for implementation and

application of the Convention. The findings show that, at the time of the ratification of the

CEDAW, the statutory basis for protection against sex discrimination was inadequate and

discrimination widespread. The public order doctrine helped remedy some problems, but

hardly covered all areas of employment where women suffered discrimination, and by the

mid-1980s, development around Article 90 of the Civil Code stagnated. Before Japan could

ratify the CEDAW, legislative measures needed to be undertaken, which led to the enactment

of the EEOL in 1985. Other new laws and revisions of old ones have also had a positive

impact on the situation for women in the labour market. However, the legislative measures

have not been enough to fulfil Japan’s obligations under the CEDAW. For example, a

264 Starich, M.L., 2007, p. 567. 265 See Article 8 of the EEOL. 266 Geraghty, K.T., 2008, p. 523. 267 Luera, M.C., 2004, p. 611. 268 See, e.g., Geraghty, K.T., 2008, p. 543; Luera, M.C., 2004, p. 611; and Starich, M.L., 2007, pp. 567-569. 269 Geraghty, K.T., 2008, pp. 539-540; and Starich. M.L., 2007, p. 570. 270 Geraghty, K.T., 2008, pp. 527 and 540.

52

comprehensive definition of discrimination has not been implemented and there are no

statutory special measures in place aimed at accelerating de facto equality between men and

women. For these reasons, women have turned to courts to achieve further advancements by

invoking their rights under the CEDAW. So far, no litigants have prevailed explicitly on the

grounds of the Convention. The Japanese judiciary has proven unwilling to accept arguments

based on the CEDAW, although direct applicability has not been explicitly rejected in all

cases. In sum, however, neither the implementation nor the enforcement have been sufficient

to address sex discrimination against women in the labour market. Obstacles for

implementation and enforcement include institutional factors as well as cultural and social

factors. Deeply rooted stereotypes, in combination with a consensus-oriented culture, renders

it hard to undertake measures that will bring profound changes to society. In the concluding

Chapter, these issues will be further addressed.

53

5. Conclusions

This study has examined the status of the CEDAW in Japan, with due regard to the status of

treaties in general as sources of rights and obligations in the country. Further, the study has

aimed to ascertain whether the said Convention has been properly implemented and enforced,

and to demonstrate possible obstacles causing deficiencies and shortcomings in regards to

combating discrimination against women in the labour market.

The study has shown that ratified treaties attain domestic legal force in Japan upon

publication and can be invoked in Japanese courts. Treaty rules may be directly applied if

they are sufficiently precise, and no negative intent of the parties exclude direct applicability.

However, the context in which a treaty rule is invoked also needs to be considered. Depending

on the type of conduct, the state of domestic law, and whether the alleged violator is the state

or a private actor, courts may be more or less willing to ascribe a treaty provision direct

applicability. In practice, the judiciary has proven reluctant to directly apply human rights

treaties, except for the ICCPR. Rather, the judges use human rights treaties as ‘interpretive

standards’. However, the courts usually defer to the level of protection offered by the

Constitution and rarely find that domestic legal rules violate rights under human rights treaties.

Under the CEDAW, states undertake to adopt a wide range of measures in order to end

discrimination against women in all its forms, which entails both obligations of conduct and

obligations of result. Before Japan could ratify the CEDAW, the 1985 EEOL was enacted to

implement the treaty obligations pertaining to sex discrimination in the labour market. Other

new and revised laws have also had a positive impact on the situation for women in the labour

market. Nevertheless, sex discrimination is still widespread and not all provisions of the

CEDAW have been implemented into domestic law. For example, Japan has not implemented

a comprehensive definition of discrimination, as required under Article 2 of the Convention.

The Japanese definition of indirect discrimination is very narrow and the prohibitions under

the EEOL does not cover all areas of employment in which women suffer discrimination.

Without a comprehensive definition of discrimination, it is difficult for courts to know what

practices constitute a violation of the EEOL, not least considering the substantial allowance

for exceptions from the prohibitions provided by the MHLW Notification with guidelines for

employers. Another important area of concern to the CEDAW Committee is the lack of

temporary special measures aimed at accelerating de facto equality between men and women.

54

The Committee has also identified the fact that the Japanese legislation lacks the backing of

an effective enforcement mechanism as a major problem.

Since the legislative measures undertaken are insufficient, Japanese women have turned to the

courts to achieve further advancements. So far, the CEDAW has not been directly applied in

any case and no litigant has prevailed explicitly on the grounds of the Convention. Not in

every case, however, has the direct applicability been directly denied, but existing judgments

imply that the judiciary consider the CEDAW to be less enforceable than the ICCPR. Rather

than functioning as an instrument giving the individuals claimable rights, the Convention

might be used as an interpretive standard. The dissenting opinion in the Separate surname

case indicates that documents deriving from the CEDAW Committee could also be used as

means for interpreting domestic law.

Combined with insufficient legislation, the courts’ reluctance towards arguments based on the

CEDAW is problematic. Even though the CEDAW has domestic legal force in Japan, the

study has shown that its impact on the society has been limited. The obstacles for

implementation and enforcement, however, are manifold. First of all, the CEDAW aims to

achieve highly ambitious goals and do so with limited resources and no enforcement powers.

Many provisions of the Convention have been phrased in a rather vague language and, in

requiring a continuous strive for gender equality, the Convention has certain elements of a

programme. The latter can be interpreted as not requiring the States Parties’ obligations to be

immediately realised. Further, many provisions of the CEDAW oblige the States Parties to

actively protect and fulfil women’s right to non-discrimination and enjoyment of equality.

Both on the international and domestic level, it is generally difficult to establish that an

omission constitutes a violation of positive obligations. Even though the Japanese judiciary,

despite the lack of precise rights, would grow more willing to directly apply the CEDAW,

they are unlikely to override domestic law and, even more so, to find that the level of

protection under the Convention does not satisfy the requirements under the CEDAW.

Unfortunately, the protective ambit of a treaty provision with a vague wording, establishing

positive obligations, is easy to circumvent. Therefore, bridging discrepancies between the

CEDAW and domestic legislation is of utmost importance, especially considering that Japan

is a non-litigious society in the first place.

55

In a society characterised by a consensus culture, like the Japanese, radical legislative reforms

are not easy to initiate. The Japanese culture stresses the value of ‘harmony’ and avoidance of

social conflict, which is reflected in the lack of judicial activism and in the nature of domestic

law, particularly manifested in the dispute settlement and weak enforcement mechanisms. The

legislation aimed at achieving gender equality fails to establish clear obligations for the

employers, which has led to characterisations of the EEOL as “guidance” rather than a legal

document providing employees with claimable rights. Despite these cultural obstacles, the

government could take more firm steps towards implementation of the ideals of the CEDAW,

including adoption of temporary special measures in a form that suits Japan’s cultural and

legal climate. However, adequate legislation prohibiting discrimination would likely be

insufficient to change deeply-rooted norms and gender stereotypes in the Japanese society,

which constitute a significant challenge to the practical realisation of the CEDAW. The

government needs to work proactively to modify discriminatory practices and stereotypes,

which also follows from the obligations under the CEDAW. Policies must move away from a

‘male-centric’ job model towards one that encompasses the idea of two-career couples,

including a better work-life balance for both sexes. The government must also promote

equality in the domestic sphere, including the idea of shared child and homecare

responsibilities. However, it is also necessary to move more of the responsibility for

childrearing and care of the elderly outside the family. Additionally, Japan should repeal

contradictory, discriminating policies such as tax breaks for married couples, which creates

disincentives for women to work.

It has proven difficult to reach the highly ambitious goals of the CEDAW. The reforms for

gender equality have, so far, not been comprehensive or drastic enough to address the root-

cause of the discrimination and have failed to bring profound changes to the Japanese society.

Although women’s empowerment is high on the political agenda today, it appears to be a

pragmatic answer to the country’s economic and demographic problems rather than care for

women’s human rights. The ratification of the CEDAW in the first place was also, by large, a

result of pressure from the international community. Seen from the bright side, this implies an

untapped potential of the CEDAW-OP. Despite that the Protocol lacks enforcement powers,

acceding to the CEDAW-OP could have a noticeably positive impact since, as evident, Japan

is wary of asserting its good global citizenship.

56

Sources

Books

Allen, Stephen, Law Express: International Law, 2 ed., 2015, Pearson Education, London.

Bring, Ove, Mahmoudi, Said, Wrange, Pål, Sverige och Folkrätten, 5 ed., 2014, Norstedts

Juridik, Stockholm.

Campbell, Meghan, Women, Poverty: Equality: The Role of CEDAW, 2018, Hart Publishing,

Oregon.

Craven, Matthew, C. R., The International Covenant on Economic, Social, and Cultural

Rights: A Perspective on its Development, 1995, Clarendon Press, Oxford.

Goodman, Carl F., The Rule of Law in Japan: A Comparative Analysis, 2 ed., 2008, Kluwer

Law International, Alphen aan den Rijn.

Hanami, Tadashi A., Komiya, Fumito, Labour Law in Japan, 2011, Kluwer Law

International, Alphen aan den Rijn.

Iwasawa, Yuji, International Law, Human Rights, and Japanese Law: The Impact of

International Law on Japanese Law, 1998, Oxford University Press, Oxford.

Kälin, Walter, Künzli, Jörg, The Law of International Human Rights Protection, 2009, Oxford

University Press, Oxford.

McKean, Warwick, Equality and Discrimination under International Law, 1983, Oxford

University Press, Oxford.

Nemoto, Kumiko, Too Few Women at the Top: The Persistence of Inequality in Japan, 2016,

Cornell University Press, Ithaca.

Rehman, Javaid, International Human Rights Law, 2003, Pearson Education, Essex.

Rehof, Lars Adam, Guide to the Travaux Préparatoires of the United Nations Convention on

the Elimination of All Forms of Discrimination against Women, 1993, Martin Nijhoff

Publishers, Dordrecht.

57

Upham, Frank K., Law and Social Change in Postwar Japan, 1987, Harvard University Press,

Cambridge, Massachusetts.

White, Linda, Gender and the Koseki in Contemporary Japan: Surname, Power and

Priviledge, 2018, Routledge, London.

Journal Articles and Book Chapters

Barrett, Kelly, “Women in the Workplace: Sexual Discrimination in Japan”, Human Rights

Brief, Vol. 11, Iss. 2, 2004, pp. 4-8.

Byrnes, Andrew, “Article 24”, in The UN Convention on the Elimination of All Forms of

Discrimination Against Women: A Commentary, Freeman, Marsha A., Chinkin, Christine,

Rudolf, Beate (eds.), 2012, Oxford University Press, Oxford, pp. 539-546.

Chinkin, Christin, Freeman, Marsha A., “Introduction”, in The UN Convention on the

Elimination of All Forms of Discrimination Against Women: A Commentary, Freeman,

Marsha A., Chinkin, Christine, Rudolf, Beate (eds.), 2012, Oxford University Press, Oxford,

pp. 1-34.

De Vido, Sara, “Women’s Rights and Gender Equality in Europe and Asia”, in Contemporary

Issues in Human Rights Law, Nakanishi, Yumiko (ed.), 2018, Springer, Singapore, pp. 143-

167.

Dörr, Oliver, “Article 31”, in Vienna Convention on the Law of Treaties: A Commentary,

Dörr, Oliver, Schmalenbach, Kirsten (eds.), 2 ed., 2018, Springer, Berlin, pp. 559-616.

Dörr, Oliver, “Article 32”, in Vienna Convention on the Law of Treaties: A Commentary,

Dörr, Oliver, Schmalenbach, Kirsten (eds.), 2 ed., 2018, Springer, Berlin, pp. 617-633.

Gelb, Joyce, Kumagai, Naoko, “Gender Equality in Japan: Internal Policy Processes and

Impact and Foreign Implications under Prime Minister Abe’s Womenomics”, in Routledge

Handbook of Japanese Foreign Policy, McCarthy, Mary M., 2018, pp. 337-352, Routledge,

New York.

58

Geraghty, Kristina T. “Taming the Paper Tiger: A Comparative Approach to Reforming

Japanese Gender Equality Laws”, Cornell International Law Journal, Vol. 41, Iss. 2, Summer

2008, Art. 6, pp. 503-543.

Haley, John O., “The Role of Courts in ‘Making’ Law in Japan: The Communitarian

Conservatism of Japanese Judges”, Pacific Rim Law & Policy Journal, Vol. 22, No. 3, 2013,

pp. 491-503.

Haley, John O., “Constitutional Adjudication in Japan: Context, Structures, and Vales”,

Washington University Law Review, Vol. 88, 2011, pp. 1467-1491.

Hayashi, Yoko, “Implementation of the Convention on the Elimination of All Forms of

Discrimination against Women in Japan”, Journal of East Asia and International Law, Vol. 6

No. 2, September 2013, pp. 341–366.

Itoh, Hiroshi, “The Role of Precedent at Japan’s Supreme Court”, Washington University Law

Review, Vol. 88. Iss. 6, 2011, pp. 1631-1667.

Kimura, Kunihiro, “Sex-Based Discrimination Trends in Japan 1965-2005: The Gender Wage

Gap and the Marriage Bar”, in Discrimination in an Unequal World, Centeno, Miguel Angel,

Newman, Katherine (eds.), 2010, Oxford University Press, New York, pp. 156-171.

Knapp, Kiyoko Kamio, “Still Office Flowers: Japanese Women Betrayed by the Equal

Employment Opportunity Law”, Harvard Women’s Law Journal, Vol. 18, 1995, pp. 83 – 137.

Law, David S., “Why Has Judicial Review Failed in Japan?”, Washington University Law

Review, Vol. 88, 2011, pp. 1425-1466.

Luera, M. Christina, “No More Waiting for Revolution: Japan Should Take Positive Action to

Implement the Convention on the Elimination of All Forms of Discrimination Against

Women”, Pacific Rim Law & Policy Journal Association, Vol. 13, No. 3, 2004, pp. 611-643.

McCrudden, Christopher, “CEDAW in National Courts: A Case Study in Operationalizing

Comparative International Law Analysis in a Human Rights Context”, in Comparative

International Law, Roberts, Anthea, Stephan, Paul, Verdier, Pierre-Hugues, Versteeg, Mila

(eds.), 2018, Oxford University Press, Oxford, pp. 459-500.

59

Mechlem, Kerstin, “Treaty Bodies and the Interpretation of Human Rights”, Vanderbilt

Journal of Transnational Law, Vol. 42, No. 3, 2009, pp. 905-947.

Miyoshi, Koyo, “Male-Female Wage Differentials in Japan: The Importance of the Choice of

Work Status”, in Discrimination in an Unequal World, Centeno, Miguel Angel, Newman,

Katherine (eds.), 2010, Oxford University Press, New York, pp. 172-186.

Mun, Eunmi, Brinton, Mary, C., “Workplace Matters: The Use of Parental Leave Policy in

Japan”, Work and Occupations, Vol. 42, Iss. 3, pp. 335-369.

Ogawa, Reiko, “Japan: From social reproduction to gender equality”, in Women, Work and

Care in the Asia-Pacific, Baird, Marian, Ford, Michele, Hill, Elizabeth (eds.), 2017,

Routledge, London, pp. 199-213.

Okuyama, Akira, “Equal Pay in Japan”, in Equal Pay Protection in Industrialised Market

Economies: In Search of Greater Effectiveness, Eyraud, Francois, et al. (eds.), 1993,

International Labour Office, Geneva, pp. 95-106.

Ramseyer, J. Mark, Rasmussen, Eric, “Why are Japanese judges so conservative in politically

charged cases?”, American Political Science Review, Vol. 95, No. 2, 2001, pp. 331-344.

Sakuraba, Ryoko, “Employment Discrimination Law in Japan: Human Rights or Employment

Policy?”, in New Developments in Employment Discrimination Law, Blanpai, Roger (ed.),

2008, Wolters Kluwer Law & Business, Austin, pp. 181-200.

Shelton, Dinah L., “The Legal Status of Normative Pronouncements of Human Rights Treaty

Bodies”, in Coexistence, Cooperation and Solidarity: Liber Amoricum Rüdiger Wolfrum,

Hestermeyer, Holger P., et al. (eds.), 2012, Martinus Nijhoff Publishers, Boston, pp. 553-575.

Shin, Hae Bong, “Japan”, in International Law and Domestic Legal Systems: Incorporation,

Transformation, and Persuasion, Shelton, Dinah. (ed.), 2011, Oxford University Press, pp.

360-383.

Sloss, David, “Domestic Application of Treaties”, in The Oxford Guide to Treaties, Hollis,

Duncan B. (ed.), 2012, Oxford University Press, Oxford, pp. 367-395.

60

Starich, Megan L., “The 2006 Revisions to Japan’s Equal Employment Opportunity Law: A

Narrow Approach to a Pervasive Problem”, Pacific Rim Law & Policy Journal Association,

Vol. 16, No. 3, 2007, pp. 551-578.

Tang, Kwong-Leung, “Internationalizing Women’s Struggle against Discrimination: The UN

Women’s Convention and the Optional Protocol”, The British Journal of Social Work, Vol.

34, No. 8, Dec. 2004, pp. 1173-1188.

Taylor, Veronica, Britt, Robert R., Ishida, Kyoko, Chaffee John, “Introduction: Nature of the

Japanese Legal System”, Business Law in Japan, Vol. 1, 2008, pp. 3-8.

Tsuji, Yuki, “Explaining the Increase in Female Mayors: Gender-Segregated Employment

and Pathways to Local Political Leadership”, Social Science Japan Journal, Vol. 20, No. 1,

Winter 2017, pp. 37-57.

Upham, Frank K., “Stealth Activism: Norm Formation by Japanese Courts”, Washington

University Law Review, Vol. 88, No. 6, 2011, pp. 1493-1505.

Wadstein, Margareta. “Implementation of the UN Convention on the Elimination of All

Forms of Discrimination Against Women”, Netherlands Quarterly on Human Rights, No. 4,

1988, pp. 5- 21.

Waters, Melissa A., “Creeping Monism: The Judicial Trend Towards Interpretive

Incorporation of Human Rights Treaties”, Columbia Law Review, Vol. 107, Iss. 3, 2007, p.

628-705.

Webster, Timothy, “International Human Rights Law in Japan: The View at Thirty”,

Columbia Journal of Asian Law, Vol. 23, No. 2, Spring 2010, pp. 241-267.

International Treaties

Charter of the United Nations

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Declaration on the Elimination of All Forms of Discrimination Against Women

61

Declaration on the Elimination of Violence Against Women

International Convention on the Elimination of All Forms of Racial Discrimination

International Covenant on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination

Against Women

Statute of the International Court of Justice

Universal Declaration of Human Rights

Vienna Convention on the Law of Treaties

UN Documents

CEDAW, General Recommendation No. 19: Violence against women (1992)

CEDAW, General Recommendation No. 25, on article 4, paragraph 1, of the CEDAW, on

temporary special measures (2004)

CEDAW, General Recommendation No. 28, on the Core Obligations of States Parties under

Article 2 of the CEDAW (2010)

CEDAW, Combined Seventh and Eighth Periodic Reports of Japan (September 2014)

CEDAW, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of

Japan (18 August 2003).

CEDAW, Concluding Observations on the Sixth Periodic Report of Japan (7 August 2009)

CEDAW, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of

Japan (7 March 2016)

CEDAW, Consideration of the Seventh and Eighth Periodic Reports of Japan, Summary of

Remarks by Mr. Shinsuke Sugiyama, Deputy Minister for Foreign Affairs (16 February 2016)

CEDAW-OP, Communication No. No. 5/2005 (Goerkce v. Austria)

CEDAW-OP, Communication No. 6/2005 (Yildirim v. Austria)

62

CSW, Draft Convention on the Elimination of all Forms of Discrimination against Women

Working: Working Paper Prepared by the Secretary-General, 21 June 1976

ECOSOC, Population Division. Female Labour-Force Participation: Paper Prepared by Lin

Lean Lim, 11 March 2002

Japanese Legal Documents

Legislation

Act on Child Education and Childcare Support

Act on Center for Early Childhood Education and Care

Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in

Employment (commonly the Equal Employment Opportunity Law)

Act on the Promotion of Female Participation and Career Advancement in the Workplace

Basic Act for Gender Equal Society

Child Care and Family Care Leave Act Civil Procedure Law

Civil Code

Constitution of Japan

Criminal Procedure Law

Employment Insurance Act

Health Insurance Act

Labor Standards Act

Part-Time Labor Act

Ministry Ordinances and Notifications

MHLW Ordinance (No. 2, Jan. 1986). Ordinance implementing the Law on Securing, Etc. of

Equal Opportunity and Treatment of Men and Women in Employment  

63

MHLW Notification (No. 614, Oct. 2006). Guidelines on Ways for Employers to Take

Appropriate Measures with Regard to Items Stipulated in the Provisions Concerning the

Prohibition of Discrimination Against Workers on the Basis of Sex, etc.

MHWL Notification (No. 615, Oct. 2006). Guidelines on Measures to be Taken by Employers

in terms of Employment Management with Regard to Problems Caused by Sexual

Harassment in the Workplace

Policy Documents

Third Basic Plan for Gender Equality (2010)

Fourth Basic Plan for Gender Equality (2015)

Japanese Court Cases

Supreme Court

Sunagawa, Supreme Court (Grand Bench) (16 Dec. 1959) 13 Keishu 3225

Judgt Supreme Court (Grand Bench) (5 April 1961) 15 Minshū 657

Judgt Supreme Court (27 May 1964) 18 Minshū 676.

Judgt Supreme Court (18 Nov 1964) 18 Keishū 579, 582

Takano v. Mitsubishi Plastics Co., Supreme Court (12 Dec. 1973) 27 Minshū 1536

Shioda v. Kochi Broadcasting, Supreme Court, (31 Jan. 1977) 268 Rōdō Hanrei 17

Judgt Supreme Court (28 June 1977) 31 Minshū 511, 23

Nakamoto v. Nissan Motors, Supreme Court (24 March 1981) 35 Minshū 300

Shiomi v. Minister of Public Health, Supreme Court (3 March 1989) 1363 Hanrei Jihō 68

Courtroom Note-Taking case, Supreme Court (Grand Bench) (8 Mars 1989) 43 Minshū 89

Judgt Supreme Court (5 Dec. 1995) 1563 Hanrei Jihō 81

Judgt Supreme Court (4 Sept. 2013) 67 Minshū 6

Separate surname case, Supreme Court (Grand Bench) (16 Dec. 2015) 1023 Heisei 26

Remarriage case, Supreme Court (Grand Bench) (16 Dec. 2015) 69 Minshū 8

64

High Courts

Nagoya Broadcasting, Nagoya High Court (30 Sept. 1974)

Izu Cactus Park, Tokyo High Court (26 Feb. 1975)

Fingerprinting system, Osaka High Court (23 Dec. 1986)

Judgt Hiroshima High Court (28 Nov. 1991) 1406 Hanrei Jihō 3

Judgt Tokyo High Court (8 April 1992) 791 Hanrei Taimuzu

Judgt Tokyo High Court (2 Sept. 1992), 39 Shōmu Geppō 1060.

Judgt Tokyo High Court (3 Feb. 1993) Gaikokujin Hanzai Saibanreshū 55

Judgt Tokyo HighCcourt (5 March 1993) 811 Hanrei Taimuzu

Judgt Tokyo High Court (3 Feb 1993) Gaikokujin Hanzai Saibanreshū 55

Judgt Tokyo High Court (23 June 1993) 46 Kōminshū 43, 48

Judgt Osaka High Court (28 Oct. 1994) 1513 Hanrei Jihō 71

Judgt Takamatsu High Court (28 Oct. 1994)

Judgt Takamatsu High Court (25 Nov. 1997) 1653 Hanrei Jihō 117

Judgt Hiroshima High Court (27 April 1999)

Judgt Hiroshima High Court (28 April 1999)

Judgt Osaka High Court (16 May 2000)

Judgt Tokyo High Court (22 Dec. 2000) 796 Rōdō Hanrei 5

Judgt Osaka High Court (27 Oct. 2005)

Kyoto Women’s Centre case, Osaka High Court (16 July 2009)

Sekiguchi v. Konami case, Tokyo High Court (27 Dec. 2011)

Judgt Tokyo High Court (28 March 2014).

District Courts

Shimoda case, Tokyo District Court (7 Dec. 1963)

Judgt Tokyo District Court (10 Sept. 1966) 17 Rōminishū 104

65

Suzuki v. Sumitomo Cement, Tokyo District Court (20 Dec. 1966)

Hokoku Sangyo case, Kobe District Court (26 Sept. 1967)

Tokyu Kikan Kogyo case, Tokyo District Court (1 July 1969)

Watanabe v. Furukawa Mining Co., Maebashi District Court (5 Nov. 1970) Rōminshū 1475

Mitsui Shipbuilding Co. case, Osaka District Court (10 Dec. 1971) 22 Rōminshū 1163

Akita Sōgo Bank case Akita District Court (10 April 1975) 778 Hanrei Jihō 27

Karatsu Hospital case, Saga District Court (8 Nov. 1977) 881 Hanrei Jihō 149

Nihon Tekko Renmei case, Tokyo District Court (4 Dec. 1986) 376 Rōminshū 512

Sasaki v. Iron and Steel Federation, Tokyo District Court (12 Dec. 1986) 156 Zeimu Soshō

Shiryō

Judgt Tokyo District Court (16 Dec. 1987) 1268 Hanrei Jihō 22, 26.

Judgt Osaka District Court (18 June 1993) 1468 Hanrei Jihō 122

Judgt Osaka District Court (27 April 1994)

Judgt Tokushima District Court (14 March 1996)

Judgt Tokyo District Court (22 Nov. 1996)

Bortz v. Suzuki, Shizuoka District Court (12 Oct. 1999) 1045 Hanrei Taimuzu 216

Arudou v. Eath Cure, Sapporo District Court (11 Nov. 2002) 1150 Hanrei Taimuzu 185

Separate surname case, Tokyo District Court (29 May 2013)

Electronic Sources

Databases

International Labour Organization (ILO). Database of Labour Statistics (ILOSTAT).

Available at: http://www.ilo.org/ilostat, accessed 2018-08-31.

Ministry of Justice. Laws and Ordinances Translation Database (hōrei honyaku dēta).

Available at: http://www.japaneselawtranslation.go.jp/law/?re=02, accessed 2018-09-28.

Office of The High Commissioner (OHCHR). Jurisprudence. Available at:

http://juris.ohchr.org/, accessed 2018-10-10

66

Supreme Court of Japan Judicial Case Information (saibanrei jōhō). Available at:

http://www.courts.go.jp/app/hanrei_jp/search1 (in Japanese), and

http://www.courts.go.jp/app/hanrei_en/search? (in English), accessed 2018-10-04.

News Articles

Adelstein, Jake. (2017-11-28). “Paternity Harassment Lawsuit Brings Attention to Japan’s

Low Birthrate and Workplace Bullying”. Forbes. Available at:

https://www.forbes.com/sites/adelsteinjake/2017/11/28/paternity-harassment-lawsuit-brings-

attention-to-japans-low-birth-rate-and-workplace-bullying, accessed 2018-10-11

Collins, William. (2017-11-17). ”Why Japan’s Low Birth Rate Makes Economic Sense”. The

Japan Times. Available at:

https://www.japantimes.co.jp/opinion/2017/11/17/commentary/japan-commentary/japans-

low-birth-rate-makes-economic-sense/#.W7Y4bxMzaT9, accessed 2018-10-04.

International Center for Peace and Human Rights. (2015-11-30). “Womenomics in Japan or

the lack of a comprehensive approach on women’s discriminations”. Available at:

http://www.cipadh.org/en/%E2%80%9Cwomenomics%E2%80%9D-japan-or-lack-

comprehensive-approach-women%E2%80%99s-discriminations, accessed 2018-10-08.

McCurry, Justin. (2018-08-08). “Tokyo medical school admits changing results to exclude

women.”. The Guardian. Available: https://www.theguardian.com/world/2018/aug/08/tokyo-

medical-school-admits-changing-results-to-exclude-women, accessed 2018-09-03.

Otake, Tomoko. (2014-01-24). “Over 1 in 10 men have experienced ‘Paternity Harassment:

Survey”. The Japan Times. Available at:

https://www.japantimes.co.jp/news/2014/01/24/national/social-issues/paternity-leave-

harassment-revealed-in-union-survey/#.W78dJhMzaT8, accessed 2018-10-11

Rich, Motoko. (2017-12-29). “She Broke Japan’s Silence on Rape”. The New York Times.

Available at: https://www.nytimes.com/2017/12/29/world/asia/japan-rape.html, accessed

2018-10-08.

Stockwin, Arthur. (2018-01-19). “Explaining the One-Party Dominance in Japanese Politics”,

East Asia Forum. Available at: http://www.eastasiaforum.org/2018/01/19/explaining-one-

party-dominance-in-japanese-politics/, accessed, 2018-10-13

67

The Japan Times. (2016-04-08). “Still a struggle for working women”. [Editorial]. The Japan

Times. Available at: https://www.japantimes.co.jp/opinion/2016/04/08/editorials/still-a-

struggle-for-working-women/#.WxSp5dOFNBx, accessed 2018-06-04.

Other Publications

Organization for Economic Co-operation and Development. (OECD) (2014-09-09).

Education at a Glance 2014: OECD Indicators. PDF retrieved from: https://www.oecd-

ilibrary.org/education/education-at-a-glance-2014_eag-2014-en, accessed 2018-06-01

World Economic Forum. (2017-11-02). The Global Gender Gap Report 2017. PDF retrieved

from: http://www3.weforum.org/docs/WEF_GGGR_2017.pdf, accessed 2018-06-01

Supreme Court of Japan. Court System of Japan. 2018. PDF retrieved from:

http://www.courts.go.jp/english/judicial_sys/index.html, accessed 2018-10-02.

Supreme Court of Japan. Outline of Civil Procedure in Japan. 2017. PDF retrieved from:

http://www.courts.go.jp/english/judicial_sys/index.html, accessed 2018-10-02.

Websites

International Service for Human Rights (ISHR). Treaty Bodies. 2018. Available at:

http://www.ishr.ch/treaty-bodies, accessed 2018-09-26.

Matahara Net. What is “Matahara”. 2018. Available at: http://www.mataharanet.org/en/what-

is-matahara/, accessed 2018-10-05.

Office of the United Nations High Commissioner for Human Rights (OHCHR). Committee on

the Elimination of Discrimination Against Women. 2018. Available at:

https://www.ohchr.org/en/hrbodies/cedaw/pages/recommendations.aspx, accessed 2018-10-01

Office of the United Nations High Commissioner for Human Rights (OHCHR). Convention

on the Elimination of All Forms of Discrimination Against Women. 2018. Available at:

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx, accessed 2018-05-31.

68

Organization for Economic Co-operation and Development (OECD). Fostering Women’s

Economic Empowerment. 2018. Available at:

http://www.oecd.org/mena/competitiveness/women-empowerment.htm, accessed 2018-09-27.

Annex

Convention on the Elimination of All Forms of Discrimination Against Women The States Parties to the present Convention, Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,

Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,

Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights,

Considering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women,

Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women,

Concerned, however, that despite these various instruments extensive discrimination against women continues to exist,

Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,

Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs,

Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women,

Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women,

Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual co-operation among all States irrespective of their social and economic systems, general and complete disarmament, in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women,

Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields,

Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,

Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women,

Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations,

Have agreed on the following:

PART I

Article 1 For the purposes of the present Convention, the term "discrimination against women" shall mean any

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distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.

Article 3 States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Article 4 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

Article 5 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Article 6 States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. PART II Article 7 States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

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Article 8 States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations. Article 9 1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

PART III

Article 10 States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality;

(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;

(d) The same opportunities to benefit from scholarships and other study grants;

(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women;

(f) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely;

(g) The same Opportunities to participate actively in sports and physical education;

(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.

Article 11 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

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(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary. Article 12 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Article 13 States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to family benefits;

(b) The right to bank loans, mortgages and other forms of financial credit;

(c) The right to participate in recreational activities, sports and all aspects of cultural life.

Article 14 1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas.

2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from

rural development and, in particular, shall ensure to such women the right:

(a) To participate in the elaboration and implementation of development planning at all levels;

(b) To have access to adequate health care facilities, including information, counselling and services in family planning;

(c) To benefit directly from social security programmes;

(d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency;

(e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment;

(f) To participate in all community activities;

(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes;

(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

PART IV

Article 15 1. States Parties shall accord to women equality with men before the law.

2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.

4. States Parties shall accord to men and women the same rights with regard to the law relating to the

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movement of persons and the freedom to choose their residence and domicile.

Article 16 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. PART V

Article 17 1. For the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee)

consisting, at the time of entry into force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence in the field covered by the Convention. The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems.

2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

3. The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

5. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee.

6. The election of the five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee.

7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.

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8. The members of the Committee shall, with the approval of the General Assembly, receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide, having regard to the importance of the Committee's responsibilities.

9. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

Article 18 1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect: (a) Within one year after the entry into force for the State concerned;

(b) Thereafter at least every four years and further whenever the Committee so requests.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention. Article 19 1. The Committee shall adopt its own rules of procedure.

2. The Committee shall elect its officers for a term of two years.

Article 20 1. The Committee shall normally meet for a period of not more than two weeks annually in order to consider the reports submitted in accordance with article 18 of the present Convention.

2. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee.

Article 21 1. The Committee shall, through the Economic and Social Council, report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from States Parties.

2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on the Status of Women for its information.

Article 22 The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities. PART VI

Article 23 Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or

(b) In any other international convention, treaty or agreement in force for that State.

Article 24 States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention. Article 25 1. The present Convention shall be open for signature by all States.

2. The Secretary-General of the United Nations is designated as the depositary of the present Convention.

3. The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

4. The present Convention shall be open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 26 1. A request for the revision of the present Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations.

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2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

Article 27 1. The present Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying the present Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

Article 29 1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 30 The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF the undersigned, duly authorized, have signed the present Convention.