In England, the Police and Criminal Evidence Act 1984 provides suspects with various safeguards for suspects during police interviews. Suspects must be made aware that they have the right to remain silent (PACE Code C Section 10.5) and be cautioned that interviews are recorded (PACE Code E Section 3.4). Arguably, the most fundamental right of all for suspects is the right to legal advice (PACE Code C Section 6.1). However, within the Japanese legal system, access to a lawyer is limited.

While Japan also has the constitutional right to remain silent, there is no right for a suspect to have a lawyer present during interrogation. It is common practice for police and prosecutors to question suspects without the suspect having a lawyer present. Furthermore, the vast majority of interrogations in Japan are not fully recorded with both audio and video, leaving reliance on a police officer’s written summary of the confession. This has left the Japanese judicial system without means for independent checks on how questioning is conducted.

The duration and conditions of police detention also significantly differ between England and Japan. The maximum detention period without charge in England for any offence outside of terrorism is 96 hours. Suspects must also be given access to food and water and allowed an eight-hour period free from questioning. However, in practice interrogations typically last no more than a few hours at most.

In Japan, pre-charge police custody can legally last up to 23 days and it is standard practice to apply to the courts for two 10-day extensions. Interrogation sessions in Japan are often prolonged and repetitive, taking place for many hours over multiple days: previous studies have shown that police interrogation in Japan typically lasts around 20 hours, and in more serious cases, 40 hours. The case of Carlos Ghosn is arguably the most high-profile incident, where he was reported to have been interrogated for 500 hours while in custody. Unnecessarily lengthy and often high-pressure interrogations are shown to be likely to increase the risk of false confessions.

In England, any confession must pass a strict voluntariness test in court. Judges have the power to exclude statements obtained by oppression or in circumstances that make them unreliable. Suspects can freely say ‘no comment’ throughout an interview without jeopardising their trials.

In Japan, confession is culturally viewed as a step towards rehabilitation and suspects are strongly discouraged from using the right to remain silent. Even when the right to remain silent is invoked by the suspect, the Japanese police are still permitted to continue to interrogate the suspect. It has been referred to as ‘a duty to endure interrogation’ by critics.

While extracting confessions by torture, compulsion and threats is technically forbidden in Japan, it is difficult to prove that a confession was involuntary. Courts typically believe that signed confessions are voluntaryunless there is clear and direct evidence of misconduct, leaving little recourse for the accused. Investigators in Japan have also been reported to commonly use psychological pressure and relentless questioning to elicit admissions. Suspects who insist on their innocence or remain silent often face longer custody and are denied bail on the ground that they may destroy evidence.

Several features of Japan’s criminal justice system structurally reinforce these concerns about prolonged detention and coerced confessions. One such feature translates into English roughly as the ‘Substitute Prison’ system, which permits suspects to be held in police detention facilities for weeks during the investigation instead of in independent remand centres. Police also have the power to re-arrest a suspect on sequential charges to reset the 23-day detention limit. This typically results in a single incident being broken into several charges and allowing custody to continue unchecked for several months. During their detention, courts will also frequently issue contact prohibition orders, which prevent the suspect from communicating with friends or family. While the official reason is to prevent evidence tampering, the practice of forced isolation for a prolonged period heavily influences the psychological pressure to give a false confession. Because most interrogations lack full recordings and defence lawyers are absent, any abusive tactics often escape meaningful judicial scrutiny.

This analysis demonstrates that the deficiencies in Japan’s criminal justice system pose a serious challenge to the fairness and reliability of criminal proceedings. Addressing these shortcomings through both legislative and procedural reforms, including the full audiovisual recording of interrogations, is vital to safeguarding the rights of suspects.

The Equal Employment Opportunity Act (the EEOA) was enacted in 1985. The Act was then revised in 2006, and prohibited indirect discrimination for the first time in Japan’s history. However, the management side showed strong resistance toward the prohibition of indirect discrimination, so that the coverage to be prohibited by the EEOA was severely limited. Accordingly, many working conditions, including welfare benefits in this case, fell outside the scope of prohibition. Nonetheless, the AGC Greentech ruling clearly specified that categories of indirect discrimination which are exempt from prohibition under the EEOA could still constitute a violation of general principles of the Civil Law or the like (invalid due to a violation of public policy or damages due to tort), which is an unprecedented decision by the judiciary in Japan.

Since the enactment of the EEOA, blatantly different treatment between men and women has been diminishing in Japan. Instead, systems disguised as sex-neutral, or personnel systems with no discriminating intention but with structurally disadvantageous effects on women, are on the rise, causing a major hurdle to gender equality in Japan. The typical examples of this include the dual career track employment system disputed in this case or a system where non-regular workers like part-time workers are treated in an inferior manner.

The dual career track employment system, which is used by most Japanese companies (e.g., more than half of companies with over 5,000 workers in 2017, according to the Basic Survey of Gender Equality in Employment Management in 1997 by the Ministry of Health, Labour and Welfare), separates regular workers into two groups. This is based on two points of ‘whether transfer involving moving home has been accepted or not’ and ‘job description’. In general, one is on a main career track ‘where workers engage in core job requiring comprehensive ability, possibly associated with transfer to remote locations’, and the other is on a clerical career track ‘where workers engage in secondary job unaccompanied with remote relocation’.

However, in fact, the separation is not based on adequate job evaluation.  In many cases, traditionally male job types are sorted into the main career track, while traditionally female job types are sorted into the clerical career track. Additionally, in terms of treatment, workers on a clerical career track are treated much more unfavorably than those on a main career track. Most female workers take a clerical career track without transfer to a distant place, considering that they are or will be responsible for their families. This is therefore an important factor for wage difference between male and female regular workers in Japan.

In addition, a large proportion of women work on a part-time basis in Japan. The treatment of part-time workers, like the wages they are offered, is inherently much lower than those of regular workers.

The UN Committee on the Elimination of Discrimination against Women repeatedly pointed out that indirect discrimination was not properly positioned under Japanese laws. In 2024, the Committee recommended that the Japanese government incorporate a comprehensive definition of discrimination in regulations, consider the reasons for prohibiting indirect discrimination under the EEOA from a broader perspective, and the like [12].

According to the World Economic Forum, Japan was ranked 118^th among 146 countries in the Gender Gap Index in 2024. It is strongly hoped that this judicial decision will act as a trigger, leading to a more determined effort for workplace reform or law revision.

This blog post was created in cooperation with the Japan Gender Equality Study Team. The team is composed of six members (including Yoko Kuroiwa) who joined a seminar on discrimination laws headed by Mutsuko Asakura, a professor emeritus at Waseda University, as well as Asakura herself.

Seeking Justice in Japan

In 2018, four plaintiffs filed suit against North Korea in Japan, seeking 100 million yen damages apiece. North Korea was informed of the suit through notice posted on the court’s bulletin board, but did not appear at any stage of the proceeding.

The Tokyo District Court found that the case was not barred by sovereign immunity because Japan does not recognise the state of North Korea. It also found that the plaintiffs had moved to North Korea because of false information. The case was dismissed, however, because the District Court decided that the plaintiffs were proffering two separate claims: for solicitation through false propaganda (prior to leaving Japan), and for a denial of freedom of movement once the migrants had arrived in North Korea. The false propaganda claim was time-barred, while the denial of freedom of movement claim did not take place in Japan and was therefore outside the Court’s jurisdiction. The plaintiffs appealed.

On 30 October 2023, the Tokyo High Court overturned the District Court’s decision. The High Court found that North Korea’s misleading pre-departure propaganda and ensuing post-migration human rights violations constituted a single continuous act. This meant that the plaintiffs were no longer time-barred. It also meant that the entire continuous act fell within the Court’s jurisdiction, because the misleading propaganda was issued on Japanese territory. The case has now been remanded to the District Court for retrial.

Seeking Justice in South Korea

Victims living in South Korea are pursuing their own avenues for justice and accountability. In December 2022, activists representing over 20 victims filed a request for the Korean Truth and Reconciliation Commission to investigate the resettlement programme and the migrants’ experiences in Japan. An investigation was officially opened in November 2023. The Commission cannot award compensation, but it can help bring to light the victims’ experiences, which can be used in future court cases or victim-centred measures.

Meanwhile, on 15 March 2024, five South Korean victims acting with the assistance of the NKDB Center for Human Rights Legal Support initiated their own lawsuit against the North Korean state for its role in the ‘Paradise on Earth’ migration. The plaintiffs seek 100 million won each to compensate for the psychological damages they suffered as a result of being forcibly detained in North Korea as well as the other abuses they suffered after having migrated due to false propaganda. North Korea was served with papers at their UN Mission in New York, but is not expected to participate in the trial.  The plaintiffs have a good chance of winning their lawsuit: in a landmark 2020 case, North Korea was found liable by a South Korean court for forcibly detaining and enslaving two Korean prisoners of war, and was ordered to pay each plaintiff 21 million won.  Their efforts to collect the compensation, however, have so far been unsuccessful.

Next Steps

The litigation in Japan and South Korea is ongoing, and important decisions in each case can be expected in the coming months. If North Korea is found liable for damages, the plaintiffs would then have the difficult task of actually collecting their compensation. The lawyer in the Japanese case has suggested that North Korean assets in Japan would be targeted. In the past, US plaintiffs have received limited compensation from seized North Korean bank accounts and sanction-violating ships.

New cases are also likely. The North Korean state did not act alone in deceiving prospective migrants. They were assisted by the General Association of Korean Residents in Japan (Chongryon), the Japanese state, and the Japanese Red Cross Society. In fact, the Japanese plaintiffs’ representative has suggested that a lawsuit against Chongryon would be coming next. There are challenges in broadening the scope of the case – in particular, the statute of limitations may present a renewed barrier for both Japanese and South Korean plaintiffs if North Korean state abuses are no longer a focal point of the case – but victims continue to be energised to hold the involved organisations accountable, and to find compensation for their years of suffering.

In Japan, under Article 750 of the Civil Code and Article 74 of the Family Register Act, married couples must have the same surname, except in cases where at least one of the spouses is a foreign national. The practice for couples to have the same surname dates back to the 19th century. Under the male-headed, patrilineal family structure, called the ‘ie’ system in Japan, women were expected to join and become part of their husband’s family unit upon marriage, thus changing their surname to their husband’s ‘family name’. The ie system was legally codified in parts of the former Meiji Civil Code in 1898. While the revised Civil Code of 1947 abolished the ie system, vestiges of this system still remain present in the regulation of the surname system and customs surrounding it.

This system and practices have caused various harms and troubles, particularly for women. The administrative process to update a multitude of official documents becomes a bureaucratic nightmare for many newlywed women, incurring unwanted hassle and expense. They also feel they lose an important part of their personal identity when forced to abandon their birth surname. Having to change surnames ruins the professional career of women as their established reputations/credentials under their original names cease to be recognised. Among all, the system is being criticised for reinforcing entrenched gender roles and patriarchal norms in the society.

The Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) has unequivocally denounced Japan’s surname laws as discriminatory and violating the UN Convention on the Elimination of All Forms of Discrimination against Women. The CEDAW Committee has repeatedly recommended to revise Article 750 of the Civil Code over decades.

Despite calls for change from inside and outside the country, the law has not been amended due to political divisions and conservative resistance. While the issue has been consistently discussed and draft bills to amend the Civil Code have been proposed several times since the 1990s, efforts to change the system from the legislature have been stymied by opposition from conservative factions in the ruling party. These factions argued that allowing separate surnames for couples would undermine family unity and cause negative impacts on children, amounting to an assault on ‘traditional values’. Opponents of amending the Civil Code provision advocate for expanding the unofficial use of maiden names as commonly used names for daily purposes. However, individuals who use their maiden name unofficially after marriage encounter challenges at work and in other areas because the unofficial common name does not match their registered IDs, particularly the chip in their passport. Furthermore, some workplaces prohibit the use of pre-marriage surnames, leading to privacy concerns.

The political inaction has prompted numerous couples to bring multiple cases to court, alleging that the same-surname law violates the rights guaranteed under of the Japanese Constitution as well as the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In 2015, the Supreme Court upheld the law as constitutional. The majority of judges ruled that using the same surname was reasonable for the family as ‘a natural and foundational social unit’, and as a well-established practice in the Japanese society, and that there was no inherent gender inequality within the system. The 2021 Supreme Court decision, upholding the 2015 judgement, also deferred to the legislature on the election of the surname system.

It is in this context that twelve plaintiffs, including legal and common-law couples, filed new cases in court on 8 March 2024 (International Women’s Day), arguing that forcing Japanese nationals to choose between marriage or keeping one’s surname violates the constitutional principle of respecting individual rights. One of the plaintiffs needed to quit her job after a mental crisis due to changing her surname. Another of the plaintiffs had married and divorced the same person more than five times due to complications surrounding surname changes. One of the plaintiffs, who is now in a civil marriage, mentioned, “I have been waiting for more than a decade for the law to change, but nothing has changed. I cannot wait more and need to take action myself.”

The civic movement and campaign have become vibrant, even cautioning that Japanese nationals will all have the same surname in 500 years unless the same surname law changes. Business leaders and organisations, including Japan’s powerful business lobby Keidanren, have also urged the government to legalise the option of separate surnames, citing the need to support women in business. Since 2018, more than 350 local assemblies have officially requested the government to amend the law. According to surveys, the Japanese public would broadly support this change. The call for the government to ratify the Optional Protocol to the CEDAW, allowing for individual complaints, has also intensified. Japan is scheduled for its national review in front of the CEDAW Committee in October 2024. With demands for change growing louder, the momentum for reforming Japan’s surname laws appears to be building.

Read more:

• Children’s Rights, Illegitimacy and the Rule of Law in Malaysia
• Marriage For All: Same-Sex Marriage in Japan
• Two East Asian Approaches to Care

Every December, the world celebrates Human Rights Day. This year’s theme is ‘Dignity, Freedom, and Justice for All’, evoking the recognition in the preamble of the Universal Declaration of Human Rights that ‘the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. At the Oxford Human Rights Hub, we are proud to provide a platform for global dialogue about developments in human rights law. To celebrate Human Rights Day 2022, we wanted to round up some of our most-viewed posts from this year, so here they are: a few of the most intriguing human rights stories of 2022, according to you – our readers.

1. Same-Sex Marriage in Japan

In this blog post, Genki Kimura (MPhil, Oxford) reported on strategic litigation in Japanese Courts targeting the non-recognition in Japanese law of marriage between same-sex couples, and the lack of any system of civil partnerships. The litigation in question took aim at provisions of Mimpo (the Japanese Civil Code) and legislation which has defined marriage as ‘only possible between the opposite sexes’. In a positive recent development, the Sapporo District Court declared provisions of Mimpo and relevant legislation to be unconstitutional. Eyes now turn to the Japanese Supreme Court, where issues of same-sex marriage and partnerships are likely to head.

Attracting over 10,000 page views, this was our most visited blog post published in 2022!

2. Same-Sex Marriage in India

Another 2022 blog post covered litigation concerning same-sex marriage – this time, in the Indian courts. Muskan Bhuteria (law student, O.P. Jindal Global University) reviewed a series of petitions pending (at time of writing) before the Delhi High Court, concerning to the constitutionality of marriage legislation and its impact on same-sex couples. These developments show the national courts grappling with the implications of Supreme Court decisions Navtej Singh Johar v Union of India and Puttaswamy & Ors v Union of India. The case commentary provides a useful insight into India’s progress in safeguarding rights of the LGBTQI community.

3. Russia’s Invasion of Ukraine & International Criminal Law

In this blog post, Dr Carrie McDougall (Melbourne Law School) argues that ‘Russia’s invasion of Ukraine – and its ongoing use of force – is a textbook example of the crime of aggression’, as defined in the Rome Statute of the International Criminal Court (ICC). Dr McDougall notes that an investigation into the situation in Ukraine was opened by the ICC Prosecutor, but there is a barrier to any prosecution for aggression: the ICC does not have jurisdiction over any crime of aggression involving a non-State Party as either victim or aggressor (except in the case of a UN Security Council referral – highly unlikely, due to the Russian veto).

This blog post was divided into two parts, with the second instalment evaluating alternative possible paths to prosecution.

4. A Landmark Judgment on Child Marriage in Pakistan

Opening with the disquieting statistic that Pakistan is home to nearly 19 million child brides, this blog post by Rida Tahir (barrister and lecturer) comments on a ground-breaking, February 2022 judgment of the Islamabad High Court. In Mumtaz Bibi v Qasim, the Court declared that marriage of children under 18 is unlawful and such marriage contracts are void ab initio (i.e., having no legal effect from the outset). Crucial to the Court’s decision was Pakistan’s being a party to the UN Convention on the Rights of the Child and efforts being made to bring the country’s laws in line with its international obligations.

The decision was ‘deservedly celebrated across Pakistan’, however it is ‘applicable only to the Islamabad Capital Territory’, necessitating further work to ensure children’s rights are protected throughout the country.

5. Malaysian Women Could Pass Citizenship to Overseas-Born Children

Closing our round-up: Zheng Hong See (Oxford, BCL) reported on the decision of Kuala Lumpur High Court in Suraini Kempe & Ors v the Government of Malaysia & Ors. In this ‘landmark’ case, the High Court declared that Malaysian women married to foreign men enjoy the right to confer citizenship, by operation of law, on their children born overseas – bringing the position of Malaysian women into line with that of Malaysian men married to foreign women. Previously, women married to non-Malaysian men did not have an automatic right to pass on Malaysian citizenship to their children born abroad, but had to go through a cumbersome application process. This High Court decision was subsequently overturned by the Court of Appeal in August 2022, however, the applicants have since been granted leave to appeal to Malaysia’s highest court. At time of writing, that appeal has not yet been heard but its implications for equality in Malaysia are clear. The High Court decision marked, in Zheng Hong See’s view, ‘a significant milestone in the struggle for gender equality in Malaysia’, and a group of UN experts has called on the Malaysian courts to ‘interpret all constitutional provisions concerning citizenship and its transference without discrimination based on sex‘.*

Between Human Rights Day 2021 and 2022, the OxHRH platform received over 400,000 page views from all around the globe. Thank you so much to all of our authors, editors and readers – we are delighted to join you in conversation about human rights law in support of dignity, freedom and justice for all!

* The OxHRH team is grateful to Kuberan Hansrajh Kumaresan for providing an update on the Malaysian citizenship case. This post was updated on 16 December to note the appeals in that case.

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Japanese law neither recognises marriage between same-sex couples nor has the system of civil partnership at the national level. As this inevitably creates problems for same-sex couples such as inheritance, social benefit and migration status, strategic litigation has been pursued in five District Courts since 2019, supported by domestic NGO groups such as Marriage For All Japan. Their target is the provisions of Mimpo (the Civil Code, in Japanese) and relevant legislation which define marriage as ‘only possible between the opposite sexes’ (the judgement of Sapporo District Court, p 2, in Japanese). They claim compensation for the damage caused by the State’s negligence to amend these unconstitutional provisions, which they claim are against Art 24 (Freedom of marriage), Art 13 (Right to pursue happiness), and the Art 14 ss1 (Equality under the law) of the Constitution.

The decision of the Sapporo District Court (mentioned above) was particularly noteworthy. The Court declared the provisions of the Mimpo and relevant legislation unconstitutional, and held that the legislature was obliged to remedy this deficiency. Specifically, the Court ruled that:

(1) Article 24 (1) stipulates only about the freedom of marriage between opposite-sexes. On a textual and historical interpretation, it is difficult to immediately extend the scope of this provision to same-sex marriage.

(2) Article 24 (2) and Article 13 do not give immediate concrete rights for same-sex couples, and they stipulate the wide discretion of the legislature in structuring institutions concerning marriage and family.

(3) Article 14(1) limits the discretion of the legislature by the principle of rationality. Although this is a high bar, the provisions of the Mimpo were initially adopted in 1947 on the belief that homosexuality is a mental illness, and this cannot be considered rational any longer. Having considered the harms faced by homosexual people and evolving beliefs on same sex marriage, both domestically and internationally, the Court ruled that respect for tradition and conservative citizens should be given only limited consideration.

(4) However, as it has been difficult until recently for the legislature to know the unconstitutionality of relevant provisions discussed in (3), it does not constitute the State’s negligence.

Given the conclusion reached in (4), the court ruled in favour of the respondent state, so the applicants appealed to Sapporo High Court. The other cases are also being heard as of March 2022, and they will likely reach the Supreme Court in a couple of years.

Notwithstanding the Sapporo District Court’s judgement, the path which lies ahead may not be straightforward. This is partly because the Supreme Court of Japan is known for its persistent self-restraint and conservativism. Scholars have pointed out the Supreme Court is very reluctant to declare unconstitutionality (there have been only ten cases of unconstitutionality in 75 years). The Supreme Court has shown some sympathy on the issue of same-sex marriage by extending certain benefits available to a domestic partnership of opposite-sex couples to same-sex couples recently, but contrary to the Sapporo District Court, it remains cautious in holding the current marital system is irrational in light of the wide discretion granted to the legislature on this matter. For instance, in H27 Fufu-Bessei Sosho case (in Japanese), the constitutionality of the marital system which obliges either husband or wife to change her/his family name upon marriage was upheld.

Moreover, while Sapporo’s judgement stressed the equality right (Article 14), the appellants may need a stronger and more substantive basis for advancing their core arguments. Article 13, which only vaguely expresses that ‘right to life, liberty, and the pursuit of happiness shall…be the supreme consideration in legislation and in other governmental affairs’, does not play a major role in the context of family life, unlike, for example, Article 8 of European Convention of Human Rights (see Oliari v Italy). Although the Supreme Court has developed the content of Article 13 over time, particularly in the context of privacy, it still has not developed a comprehensive framework such as under the ECHR, and further elaboration may be required.

Of course, deficiencies in the legal solution do not mean litigation is meaningless: litigation can also have socio-political implications. While 57% of Japanese citizens support to same-sex marriage according to the survey by NHK (in Japanese), only 38% of incumbent MPs do. If the litigation works to highlight same-sex marriage as one of the main issues in coming elections, this gap might become narrower, which would enable the legislature to amend the law.

Japan and South Korea have both opted to regulate and socialize care by building social care infrastructures, leveraging this to create jobs (particularly for women) in the emerging care economy. They have significantly expanded their public childcare systems and implemented universal Long-term Care Insurance programs for older people, provided by public and private service providers. Both governments see this as a win-win strategy: they gain huge public support by providing much-needed care for children and the elderly; at the same time, investments in the care economy stimulate economic growth and job creation. Care has been identified as the engine of the new emerging economy, with social investment in care seen as leading to better use of women’s human capital, by relieving them of unpaid family care, and providing paid employment in the care sector. The result of this institutional approach? Though demand still exceeds supply, more care is being delivered to both children and older people, and women’s employment rates have gone up in both countries. The use of foreign workers is minimal. Since social care is available, public demand for foreign care workers in private homes is low, and because of the ways in which social care is regulated, high institutional barriers prevent foreign care workers from entering the market.

In contrast, Singapore and Hong Kong see care as strictly a private family responsibility. These governments’ liberal market approach to care rests on two ideas: first, that families are better served by states supporting family purchase of care through private markets, and second, that (native-born) women’s human capital is better utilized by freeing them to work outside of home by helping them hire foreign domestic/care workers. Rather than building social care infrastructures, these governments have opted to offer allowances, tax cuts and credits, and create special immigration channels to help families hire foreign live-in domestics and care workers. The result? Large proportions of young infants -0-3 years- and elderly people in these countries are being cared for at home by foreign live-in nannies, domestics and care workers. Strikingly, these two relatively small countries are the largest importers of foreign domestics and care workers in the region, with a total of over 550,000 such workers working in these countries (see the ILO report on transnational migration of domestic and care workers in Asia Pacific). Women’s employment rates in Singapore and Hong Kong are about the same as Japan and South Korea.

These different approaches and outcomes in East Asia stem from differing social, economic, cultural and historical contexts. Singapore and Hong Kong are ex-British colonies. Current governments inherited a history of minimal state investment in child care, elder care and public education; using domestic servants for care, and depending upon foreign labour to meet shortages. Japan and South Korea’s institutional approach, on the other hand, owes much to their long histories of active investment in socio-economic infrastructure, including public education and health systems. The lack of an acknowledged history of immigration or multiculturalism also plays a role. The increasing outsourcing of care is thus carried out in distinctly different ways across these East Asian countries. As the care crisis deepens in these countries in coming decades, the social, political, and economic ramifications of these different approaches could well be profound, as demographic change propels major structural shifts in these societies.