Submitted by crinadmin on
JAPAN
Title:
Demand for the acknowledgement of Japanese nationality
Court:
Supreme Court of Japan
Date:
June 4, 2008
CRC Provisions:
Article 2: Non-discrimination
Article 7: Name and nationality
Other International Provisions:
International Covenant on Civil and Political Rights, Article 26: (non-discrimination)
Domestic Provisions:
Constitution of Japan (Article 14: Equality)
Nationality Act, Article 3(1)
Case Summary:
Background:
In 2003, a child born out of wedlock to a Japanese father and a Filipino mother submitted a notification to acquire Japanese nationality to the Japanese Ministry of Justice on the grounds that his father had acknowledged him as his own children after birth. The Ministry of Justice refused and stated that the child was not eligible for Japanese citizenship under the Nationality Act. Article 3(1) of the Nationality Act allows for children born out of wedlock to a Japanese father and non-Japanese mother and acknowledged by the father as their own after birth to gain Japanese nationality only through the subsequent marriage of the parents (the "legitimation requirement"). However, the Nationality Act does not allow for these children to claim Japanese citizenship if the parents never wed. The child sued, claiming that this distinction was unconstitutional and seeking a declaration that he was a Japanese national.
Issue and resolution:
Right to nationality; discrimination. The Court granted the child Japanese nationality under Article 3(1) of the Nationality Act, despite the fact that his parents never wed, holding that the "legitimation requirement" regarding subsequent parental marriage is unconstitutional and void. Accordingly, the Court held that a child born out of wedlock to a Japanese father and non-Japanese mother and acknowledged by the father after birth shall be eligible to acquire citizenship if the child satisfies all of the requirements under Article 3(1) of the Nationality Act other than the "legitimation requirement".
Court reasoning:
With respect to children born out of wedlock to Japanese fathers and non-Japanese mothers and acknowledged by their fathers after birth, Article 3(1) of the Nationality Act unconstitutionally distinguishes between those whose parents subsequently wed and those whose parents never wed in determining whether the child is eligible for Japanese nationality. This distinction constitutes discrimination without reasonable grounds and violates Article 14 of the Japanese Constitution, which provides for equality before the law, because there is no rational relevance between the policy and its legislative purpose (to restrict nationality to children with close ties to Japanese society while advancing the principal of jus sanguinis, meaning "right of blood"). In making its decision, the Court considered the fact that socially accepted views on family lifestyle and the child-parent relationship have changed since the Nationality Act was enacted and that Japan has become an increasingly international society. The Court also considered the international trend of other countries rejecting discriminatory treatment under law against children born out of wedlock and acknowledged that the CRC prohibits discrimination based on birth.
Dissenting Opinion:
Five justices dissented with the Court's judgment, generally finding, among other things, that the changes advocated by the Court are outside the scope of judicial power and should be left to the legislature.
Excerpts citing CRC and other relevant human rights instruments:
[I]t seems that other states are moving toward scrapping discriminatory treatment by law against children born out of wedlock, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth [See CRC Article 2]. Furthermore, after the provision of Article 3, para.1 of the Nationality Act was established, many states that had previously required legitimation for granting nationality to children born out of wedlock to fathers who are their citizens have revised their laws in order to grant nationality if, and without any other requirement, it is found that the father-child relationship with their citizens is established as a result of acknowledgement. In light of these changes in social and other circumstances at home and abroad, we should say that it is now difficult to find any reasonable relevance between the policy of maintaining legitimation as a requirement to be satisfied when acquiring Japanese nationality by making a notification after birth, and the aforementioned legislative purpose.
…
[From the concurring opinion by Justice IZUMI Tokuji:]
4. I believe that the appellant should be granted Japanese nationality by applying the provision of Article 3, para.1 of the Nationality Act, except for the part requiring the "marriage of the parents." The gist of the provision of Article 3, para.1 of the Nationality Act is to grant Japanese nationality to children who were born to Japanese citizens as their fathers or mothers and are ineligible for application of Article 2 of said Act, and the "marriage of the parents" is merely one of the requirements to be satisfied to achieve this. Therefore, said gist of the provision should be maintained to the greatest possible extent even if the part requiring the "marriage of the parents" is unconstitutional, and this is what the lawmakers would have intended. Furthermore, applying Article 3, para.1 of the Nationality Act in this manner conforms to the gist of Article 24, para.3 of the Covenant on Civil and Political Rights which provides that "Every child has the right to acquire a nationality" and that of Article 7, para.1 of the Convention on the Rights of the Child.
Follow Up:
In 2008, the Japanese government amended the Nationality Act to delete the "legitimation requirement" and provide that all children born to and acknowledged by Japanese fathers have the right to Japanese nationality.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Article 2 specifically requires that States not discriminate against children on the basis of birth status, and Article 7 further clarifies that children have the right to acquire a nationality. CRIN believes firmly that children should have the right to acquire the nationality of either of their parents, regardless of whether they were or are married, and the country in which they are born.
Citation:
2006 (Gyo-tsu) No. 135
Link to Full Judgment:
http://www.courts.go.jp/english/judgments/text/2008.06.04-2006.-Gyo-Tsu-.No..135-111255.html (English)
http://www.courts.go.jp/hanrei/pdf/20080818131625.pdf (Japanese)
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
0