Japan and international refugee protection norms: Explaining non-compliance

Abstract

Despite being a wealthy democracy and strong supporter of the international system, Japan has consistently recognized very few refugees. This article explores this conundrum. Specifically, it asks whether Japan’s low recognition rate signifies a lack of compliance with norms of international refugee protection and, after concluding in the affirmative, why this might be the case. The latter question is addressed systematically, using rationalist, normative and domestic institutional theories of international compliance. After proposing several potential factors, this article concludes by discussing how these factors can be addressed so as to promote a higher rate of Japanese refugee recognition.

Keywords

refugees Japan humanitarian protection international norms compliance refugee recognition rate

Introduction

Japan in the post-war era is generally viewed as one of the pillars of the current international system and a strong supporter of global humanitarian norms. Nevertheless, its compliance with international norms of refugee protection appears, at least at first glance, to be weak. Japan has recognized 633 refugees in the 33 years following its accession to the United Nations High Commissioner for Refugees (UNHRC) Refugee Convention in 1981 (Japan Ministry of Justice, 2015; Arima, 2012: 82).¹ This figure would be eclipsed in less than a month by Germany or Canada.² This low number is, in part, a product of a relatively low number of asylum claimants, but it also reflects an extraordinarily low refugee recognition rate (i.e., the percentage of asylum claimants that receive refugee status). In 2014, a total of 11 out of 5,000 asylum seekers were given refugee status, for a refugee recognition rate of roughly 0.2 percent (Japan Ministry of Justice, 2015).³

In this article, I will analyze the possible reasons for Japan’s low recognition rate. Specifically, I will ask the following two questions. First, does Japan’s low recognition rate signify a lack of compliance with norms of international refugee protection? In short, I will conclude that while there are certain plausible explanations why Japan’s low recognition rate is less egregious than it first appears, there is nevertheless still convincing evidence that Japan is not complying with international norms of refugee protection. Next, I will explore the possible reasons for Japan’s non-compliance. This section will go beyond simple culture-based explanations to examine what can be learned from the principle compliance theories – rationalist, normative and domestic institution focused – that have been developed by international relations and international law scholars. Finally, I will conclude this article by briefly outlining possible pathways that interested actors can use to encourage greater compliance which are based on the findings of my analysis.

Background on refugee protection in Japan

While Japan was effectively closed to outsiders during the Tokugawa era (1600–1868), it at certain times in its modern history granted asylum to those in need. After the Russian Civil War, for example, several thousand White Russians were allowed into the Japanese Empire, where they were categorized as ‘Stateless’ and provided with Nansen Passports (Nakanishi, 2004). During the Second World War, hundreds of European Jews fleeing Nazi advances were also given temporary asylum (Sakamoto, 1998). Thousands of Korean refugees fled to Japan during the 1948 Jeju Uprising and Korean War; however, they were treated as illegal immigrants and susceptible to deportation (Morris-Suzuki, 2009: 56).

Japan’s most significant experience with refugees in the modern era came as a result of the Indochinese refugee crisis, a term used to refer to the humanitarian disaster that followed a series of distinct waves of refugee exoduses from Vietnam, Laos and Cambodia during the period 1975 to 1997 as a result of war, persecution and geopolitical turmoil (Robinson, 1998). While some Indochinese refugees fled overland to China, the majority fled by sea to various locations in Southeast Asia. By 1978, there was a pressing need to resettle these so-called ‘boat people,’ who were meeting increasing hostility at the various ports of the region. Western countries resettled hundreds of thousands of refugees at the time and soon, the US and its allies put intense pressure on Japan to also accept its share (Flowers, 2006: 19). In reaction to this pressure, Japan resettled 11,319 Indochinese refugees in its territory from 1978 to 2005 (Arima, 2012: 82).

Although there was no specific Western pressure to do so (Flowers, 2006: 19), Japan also ratified the UNHRC Refugee Convention in 1981 and the Refugee Protocol in 1982. The Convention was soon after internalized through revisions of Japan's 1951 Immigration Control Order. However, these legal reforms did not result in the recognition of large numbers of refugees: from 1982 to 2004, a total of only 330 refugees were recognized out of a total of 3,544 applications, for a refugee recognition rate of 9.3 percent (Japan Ministry of Justice, 2015). In fact, according to Iwasaki (2006), this rate almost certainly overstates Japanese willingness to grant asylum, when one takes into account the fact that asylum applications at airports were not accepted during these years and asylum seekers were not allowed to file for refugee status after they had spent 60 days in the country.

In 2004, Japan passed a new Immigration Control and Refugee Recognition Act, which introduced a number of changes in refugee policy. Most significantly, the 60-day time limit on applying for asylum was abolished, permits for provisional stay pending asylum determinations were introduced, and the Ministry of Justice was required to consult three ‘Refugee Adjudication Counselors’ during appellate reviews of refugee status denials (Iwasaki, 2006). Refugee Adjudication Counselors are appointed by the Ministry of Justice from various backgrounds, and include academics, lawyers, former civil servants and NGO workers, and insert an independent voice in the review; however, the Ministry of Justice Immigration Bureau still maintains significant influence over the appeals process (Arima, 2012: 77). While these changes were generally lauded by refugee advocates, a number of practical problems with the refugee status determination procedures remain, including the inordinate length of time it sometimes takes for a case to go from first instance decision through the full appeals process (APRRN, 2014) and the fact that the Minister of Justice is tasked with deciding cases both at the first instance and upon appeal (Arakaki, 2008: 93). According to some observers, the basic problem is that the recognition system is plagued by conflicting objectives, as the Immigration Bureau is mandated to both protect refugees and police irregular immigration, with officials commonly rotated from one task to another (Flowers, 2009: 63). As of May 2015, the Ministry of Justice has been working on another round of reforms to the status determination procedure, with a recent sub-committee report focusing on the importance of ensuring due process, but it is far from clear whether new reforms will lead to any meaningful procedural improvements (APRRN, 2015).

So far, the changes resulting from the 2004 refugee status determination procedure reforms have not led to an increase in the Japanese refugee recognition rate, as 242 out of 6,344 asylum seekers were recognized as refugees between 2005 and 2010 (a 3.8 percent recognition rate) (Japan Ministry of Justice, 2015). In 2014, 5,000 people sought asylum in Japan, and a total of 11 were granted refugee status, for a recognition rate of 0.2 percent (Japan Ministry of Justice, 2015).⁴ Since Japan’s accession to the Refugee Convention, the vast majority of recognized refugees have come from South Asian and Southeast Asian countries, especially Myanmar (Arima, 2012: 82), and as of March 2015, not a single Syrian national had been granted refugee status, with 61 Syrian applicants denied refugee status since 2011 (The Economist, 2015).⁵

One final recent development worth noting has been Japan’s introduction of a pilot refugee resettlement program in 2010, which was intended to resettle 90 refugees from Myanmar during the period 2010 to 2012. While the program is ongoing after a two-year extension, it has been seen as relatively unsuccessful, with only 86 individuals being resettled through 2014, and many refugees choosing not to come to Japan (Kondi, 2015: 7–8). Several of the refugees who did come to Japan were initially resettled to remote communities where they had trouble adjusting to Japanese society (Kingston, 2014).

Is Japan compliant with international norms?

If one combines the statistics from 2011 to 2014, Japan’s four-year recognition rate amounts to 0.4 percent (Japan Ministry of Justice, 2015). This is far less than what is normal for other wealthy countries that are parties to the Refugee Convention. For example, from 2011 to 2013, the Australian refugee recognition rate was 48.9 percent (19,024 out of 38,939 applicants); the German refugee recognition rate was 25 percent (26,679 out of 106,733 applicants), and the Canadian refugee recognition rate was 24.8 percent (31,040 out of 125,413 applicants) (UNHCR, n.d.a). The average refugee recognition rate for all countries in the world and UNHCR in 2013 was 32 percent (UNHCR, 2014: 59). There has been a general assumption that Japan’s comparatively tiny refugee recognition rate reflects an overly stringent (or dysfunctional) refugee status determination system, as reflected by comments from scholars (Flowers, 2008: 339) and activists (Asia Pacific Refugee Rights Network, 2014; Japan Lawyers Network for Refugees, 2013).⁶ There may, however, be other explanations for Japan’s low refugee recognition rate. This section will examine whether Japan’s low recognition rate in fact indicates that it is out of compliance with international (legal) norms of refugee protection, specifically those outlined in the Refugee Convention of 1951.⁷

As a starting point, it is worth stressing that a low refugee recognition rate is not in itself a violation of the Refugee Convention. There are two reasons for this. First, the Refugee Convention does not require that states recognize refugees. Rather, refugee status exists independent of state recognition, and state violations of the Refugee Convention occur through the denial of rights (such as non-refoulement) that refugees are entitled to (regardless of whether or not any particular state has recognized them as such) (Battjes, 2006: 400). Second, violations of the Refugee Convention can only occur in specific cases, and not in the aggregate. Thus, as noted by the European Court of Human Rights (1978: 64) in a case involving the European Convention on Human Rights, “an accumulation of identical or analogous breaches…does not of itself constitute a violation separate from such breaches.” Nonetheless, a very low refugee recognition rate (compared to other developed countries) can be a powerful indication that a country is denying refugee status to a significant number of genuine refugees and violating their obligations under the Refugee Convention in their subsequent treatment of these individuals (who are considered refugees under international law but were denied that status by the state).⁸ This is especially likely where asylum seekers from similar backgrounds are being granted refugee status at a very low rate in a particular destination country (when compared to the recognition rate in other destination countries). In Japan’s case, the comparatively miniscule refugee recognition rate for asylum seekers provides powerful prima facie evidence of non-compliance. There are, however, three arguments that Japan is, in fact, behaving in compliance with international refugee law norms. Each of these will be examined in turn.

Asylum seekers in Japan are comparatively less likely to be genuine refugees

It is possible to argue that the very low refugee recognition rate in Japan is in fact a reflection of the fact that there are very few genuine refugees applying for asylum in Japan. This generally takes the form of a two-part argument. First, it claims that Japan attracts relatively few individuals seeking asylum. This could be due to evident geographical and cultural factors.⁹ Japan is an archipelagic nation, making it impossible for refugees to arrive by land. Even by sea, Japan is widely separated from the Middle East, North Africa and Southwest Asia, which have been the primary regions of origin for asylum seekers in recent years. In fact, the only significant refugee countries of origin that are in the general vicinity of Japan are China and North Korea. Japan also has a distinctive language and culture, which might make prospective asylum seekers fearful that they would be unable to fit in to Japanese society. Japan’s unattractiveness to asylum seekers could also be simply due to its reputation as being unwelcoming to refugees. According to this line of argument, individuals fleeing persecution would be unlikely to rationally choose to go to Japan, at least where other destinations are possible, because they would be afraid of rejection.

The second part of this argument goes on to claim that the low number of asylum seekers actively choosing to seek out Japanese protection also affects the percentage of asylum seekers who are genuine refugees. In short, asylum seekers in Japan are more likely to be ‘opportunistic’ foreign workers and students who are simply looking to extend their stay in the country, when compared to other asylum hosting countries, which are sought out by people fleeing persecution.

Certainly, there is some plausibility to this argument. Geographic proximity and language ties have been shown to influence asylum destinations for refugees, at least in the European context (although not as significantly as other factors such as destination country income level, the presence of communities of past asylum seekers or the existence of strong right-wing nationalist parties) (Neumayer, 2004: 175–176). Other empirical studies (not focused on Japan) have shown that all else being equal, the number of asylum applications is smaller for countries with low refugee recognition rates (Böcker and Havinga, 1997; Robinson and Segrott, 2002). It would be unrealistic, however, to claim that this dynamic fully accounts for the minutely small Japanese recognition rates. By comparison, in one study of US recognition rates, ‘defensive’ asylum cases (defined as those filed by applicants in the country against whom removal proceedings had already been initiated) were approved 26 percent of the time, which was less than the 37 percent recognition rate for affirmative cases (defined as those voluntarily initiated by the applicants themselves), but still far ahead of Japan’s figures (US Government Accountability Office, 2008: 23). Thus, even if one accepts that Japanese asylum seekers are relatively less likely to have migrated for the purpose of claiming asylum, the number of claims accepted is still very low.

Japanese refugee recognition rates are distorted by multiple applications

Another possible justification for Japan’s comparatively low refugee recognition rate is that Japan has a significantly higher than normal rate of multiple asylum applications (i.e., new applications submitted by an individual after the failure of an original application), and that these applications are less likely to come from genuine refugees. According to Arima (2012: 80), there were 540 applications in 2011 that were from individuals who had previously received a negative asylum decision from the Japanese government, and there is no limit on the number of applications that may be filed. It seems plausible that multiple asylum applications are less likely to come from genuine refugees, if one assumes that they would have been recognized the first time if they fit the refugee definition, although this is a very dubious assumption in Japan. However, it should be recalled that multiple applications can often reflect changing circumstances in an asylum seeker’s home country (so-called sur place refugee status). Multiple applications are not unheard of in other countries either; Germany, for example, saw 17,376 repeat or reopened applications in 2013 (of which 619 received refugee status) (UNHCR, n.d.a). At any rate, it is clear that the number of multiple applications cannot fully explain Japan’s low compliance rate. If one only looks at first-time applications from 2011 (and assumes that not a single multiple application was successful), then Japan’s refugee recognition rate for the year was still only 1.6 percent (Japan Ministry of Justice, 2015).

Granting humanitarian status fulfills Refugee Convention requirements

The other main argument in defense of Japan’s general compliance with international refugee law is that Japan is fulfilling its legal obligations by liberally granting humanitarian status to genuine refugees, and then giving them the rights that refugees are due under the Refugee Convention. This argument rests on the premise that international refugee law does not actually require that refugees are given refugee status, but rather simply prescribes certain obligations of the state toward refugees.

In fact, it is clearly true that while UNHCR has warned against granting complementary protection to refugees (UNHCR, 2005), the Refugee Convention itself does not directly require that states engage in refugee status determinations or award them refugee status. Rather, the Refugee Convention requires that states fulfill a range of obligations (including non-refoulement) toward genuine refugees, regardless of their status under domestic law (Battjes, 2006: 400).¹⁰ Asylum seekers who are granted humanitarian status by the Japanese government are generally protected from refoulement for as long as they maintain that status (which must be renewed annually) and generally receive the right to work, health care and free primary education (Obi, 2013: 14–15). While humanitarian status holders do not receive certain benefits that come with refugee status, such as special public housing assistance, publicly funded language training and – oftentimes – the ability to bring family members to join them, these are arguably benefits that are not required under the Refugee Convention (Obi, 2013: 14–15).

Nevertheless, it is difficult to accept the argument that Japan is generally compliant with the Refugee Convention due to its liberal granting of humanitarian status to refugees. First, the total number of individuals granted humanitarian status in recent years has also been very low (although greater than the number of refugees). According to the Japanese Ministry of Justice (2015), 248 individuals were given humanitarian status by Japan in 2011, 112 in 2012, 151 in 2013 and 110 in 2014. Thus, Japan’s total recognition rate (including grants of refugee status and humanitarian status) was 14.4 percent in 2011, 5.1 percent in 2012, 4.8 percent in 2013 and 2.4 percent in 2014. These combined numbers, however, are still far below international norms. According to UNHCR, the global total recognition rate (including refugee status and complementary protection) for all countries and UNHCR procedures was 43 percent in 2013 (UNHCR, 2014: 59). The total recognition rate for the 28 EU member states in 2013 was 34 percent (Eurostat, 2014).

Second, there is no concrete evidence that humanitarian status is customarily granted on the basis of refugee status (i.e., fear of persecution on one of the five protected grounds). From the perspective of Japanese domestic law, grants of humanitarian status are discretionary, with no legal guidance provided (Arakaki, 2008: 101). Arakaki speculates that refugee status may play a role in the decision-making process, but others have highlighted the importance of different factors, such as family links, clean background and situation in the country of origin (APRRN, 2014). Risk of torture may also play a role in decision-making (as mandated by article 3 of the Convention Against Torture, which Japan has ratified). In short, while it is likely that some of the people granted humanitarian status are genuine refugees (under the Refugee Convention definition), it is also likely that many are not.

Third, there is other evidence that many people likely to be genuine refugees are not given either refugee status or humanitarian status. Examples of egregious rejections have been compiled by the Japan Association for Refugees (2009) and Kogure (2007) and detailed in a case study by Flowers (2008: 339–41). Statistically, the total recognition rate (including humanitarian status and refugee status) for asylum seekers from certain particularly dangerous countries of origin remains very low. The total recognition rate for asylum seekers from Iran, for example, was only 3 percent during 2011 to 2013 (one person given refugee status and three given humanitarian protection out of 131 applicants) (UNHCR, n.d.a). By comparison, the total recognition rate for Iranian asylum seekers in the 27 EU member states in 2012 was 52 percent (European Asylum Support Office, 2013: 26).

To conclude, while for various reasons, one might expect Japan’s refugee recognition rate to be somewhat lower than that of other developed countries, there does not appear to be any legitimate justification for the miniscule recognition rates of recent years. Rather, there is still reason to believe that Japan’s low recognition rate is evidence of a lack of compliance with international refugee protection norms contained in the Refugee Convention. The following section will explore possible explanations for this presumed non-compliance.

Japan’s lack of compliance with International Refugee Law norms: Comparing theories

In recent decades, a rich theoretical literature has emerged to address the question of why states comply or fail to comply with norms of international law. In this section, I will examine some of the most relevant compliance theories to see if they can shed light on some of the reasons for Japan’s non-compliance with international law norms on refugee protection. Although there are several different ways to categorize compliance theories, in this section I will adopt the general framework proposed by Hathaway (2002), which distinguishes, at the most general level, between rationalist and normative theories.¹¹ I will additionally examine Japan’s non-compliance through the lens of compliance theories that focus on domestic institutional characteristics. It should be stressed that these theories do not provide mutually exclusive explanations (Simmons, 1998: 76); on the contrary, nations comply with international norms for a mix of reasons, and the compliance theories utilized here should be seen as basically complementary, although emphasizing different compliance factors and mechanisms (Koh, 1997: 2649).

Rationalist theories

Rationalist theories (elsewhere sometimes referred to as ‘rational actor’ or ‘interest-based’ theories) are those compliance theories that are based upon the belief that states (and individuals that act within states) are self-interested actors that “calculate the costs and benefits of alternative courses of action in the international realm and act accordingly” (Hathaway, 2002: 1944).¹² This calculation should take into account coercion (where relevant), instrumental calculations, along with material and (some would argue) social incentives (Checkel, 2001: 559). More sophisticated rationalist approaches use game theory approaches to take into account factors such as repeated interactions with other states and long-term interests in a stable international system (Guzman, 2002). Under rationalist theories, compliance with international law can provide a range of possible benefits, including increased geopolitical power, avoiding conflict or sanctions and furthering a particular ideology. Although there are a very wide range of different rationalist models, which focus on different elements of national interest, different actors and different time horizons, this analysis will take a general approach of exploring the various interest calculations that could be leading to Japan’s extremely low refugee recognition rate.

As a starting point, it is not hard to find rational-choice explanations for why countries might be loath to comply with refugee protection norms. Refugee recognition can create significant and costly obligations for states, at least in some circumstances. These include the administrative costs relating to asylum claims processing and the provision of accommodation and other types of welfare support to asylum claimants and refugees (Schloenhardt, 2002).¹³ Refugee protection is also often seen as socially disruptive by segments of the local population, with fears (whether valid or not) that refugee influxes can lead to an increased threat of terrorism and competition for scarce jobs. While, on occasion, ‘great powers’ pressure countries to accept refugees, as in the case of the Indochinese refugee crisis for Japan, these pressures have generally been short-lived responses to massive outflows, and there is little evidence of countries prioritizing a foreign policy objective of promoting refugee protection. International institutions, such as UNHCR, do not have a significant formal role in monitoring compliance (in contrast to human rights treaty bodies), let alone in exerting meaningful pressure to comply.

These rationalist explanations for non-compliance with refugee norms hold true around the world, yet other countries (including virtually all other wealthy and liberal jurisdictions) have chosen to recognize refugees at a far greater rate than Japan. There are, however, additional interest factors that would mitigate against refugee protection in Japan. One commonly cited factor is social/political, namely, that the social costs of accepting refugees (and, by extension, the political costs faced by politicians that move in that direction) are higher than they are elsewhere in the world because Japanese society values its ethnic homogeneity and is generally more hostile to immigration than most other refugee-hosting countries (Kaneko, 2003: 41–42; Strausz, 2012: 257). This social sentiment leads to pressure on democratically accountable politicians to refrain from protecting refugees. Indeed, during the 1980 debate on ratification of the Refugee Convention, the Japanese Ministry of Justice came out in opposition, in part, due to its belief that Japan was not an “immigration country” (Flowers, 2008: 343).

Socio-political explanations for low refugee recognition rates based on insularity have been empirically tested elsewhere in the world, with mixed results. One study by Holzer, Schneider and Widmer (2000) found that intolerance toward asylum seekers in the general public is associated with lower refugee recognition rates in Swiss cantons. Interestingly, however, cantons with the lowest percentage of foreign residents had higher than average recognition rates. Another study failed to find any relationship between openness and a liberal asylum policy (Neumayer, 2004). In fact, there is little doubt that many in Japan (but certainly not all) value their country’s perceived (if not actual) ethnic homogeneity (Lie, 2001: 45). Despite having a rapidly aging society, Japan has not embraced policies to attract permanent immigrants, with the exception of co-ethnics (mostly from Latin America) and highly skilled professionals. So, it is certainly plausible that the political costs of refugee protection in Japan are high relative to other countries, although it should be emphasized that this factor is not necessarily dispositive: other countries (such as Finland or Norway) have strong senses of national identity and, at one time, had few immigrants, yet have come to accept significant numbers of refugees.

Moving to the geopolitical arena, another possible factor specifically facing Japan and its neighbors is pressure from China not to recognize Chinese refugees. There is considerable evidence that, in politically sensitive cases, China strongly opposes the granting of asylum to its citizens and has been willing to exert political and economic pressure on nearby countries such as Cambodia, Malaysia, Thailand and Pakistan to ensure that asylum is not granted (Human Rights Watch, 2011). South Korean asylum officers have systematically refused refugee status to Chinese nationals (although a handful have been allowed to stay by the courts) as a result, many believe, of a desire not to harm relations with China (Wolman, 2013: 493). Japan has clearly adopted a similar policy; according to UNHCR, only three Chinese nationals have received refugee status in Japan since 2001 (UNHCR, n.d.a). At least in the recent past, there is evidence that Japan has also automatically returned any Chinese immigrant that arrives by boat without permission (Iwasaki, 2006). The prospect of Chinese pressure arguably provides a distinct East Asian disincentive both for the recognition of Chinese refugees in particular, and more generally, for the establishment of an independent refugee recognition system that would evaluate asylum claims in a non-politicized manner, as it would be impossible to prevent a fully independent refugee appeals system from giving protection to deserving Chinese refugees, potentially leading to diplomatic headaches.

Although a rationalist approach can provide some plausible explanations for the low level of refugee recognition in Japan, an obvious follow-up question would be why Japan has ratified the Refugee Convention if doing so was not in its interest? This type of outcome has been most thoroughly theorized by Hathaway (2002) in her investigations of treaty compliance. According to Hathaway (2002: 1934), treaties have an expressive function that arises “from what membership in a treaty regime says about the parties to the treaties.” For example, states may ratify human rights treaties, in part, in order to obtain a reputation as good international citizens (Simmons, 2009: 89), even if the ratifying government has no intention of actually respecting the human rights norms contained in those treaties. A similar dynamic could be at work here. Japan is a country that cares deeply about its reputation as a respected member of the international community (Klien, 2002: 167). Internalization of international refugee norms (even without the recognition of refugees) could help Japan attain its reputational objectives, so long as it does not develop a reputation for non-compliance.¹⁴ The importance of reputation issues for ratification of the Refugee Convention was also borne out by Flowers’ influential research on Japan’s ratification of the Refugee Convention (2008; 2009: 12). Flowers showed that the Japanese Ministry of Foreign Affairs (which is concerned with Japan’s international reputation) strongly favored ratification of the Refugee Convention while the Ministry of Justice was strongly opposed (Flowers, 2008: 343), and her analysis of Diet meetings regarding ratification showed that advocates focused their argument on the claim that ratification would be consistent with “the state’s duty and obligation to the international community” (Flowers, 2009: 7).

Normative theories

A broad group of international relations and international law theorists have elaborated compliance theories that stress the power of international norms to transform state (and individual) interests through social processes that, according to Goodman and Jinks (2013), are centered on persuasion and acculturation. Some of these theories emphasize the importance of the procedural and substantive legitimacy of the norm (Franck, 1990). Normative legitimacy is sometimes seen as particularly important for regimes like the international refugee regime in which sanctions are rare or non-existent and there does not seem, at first glance, to be great incentives for states to comply with the norms purely out of self-interest.

More recently, much normative research has focused on the types of interactions that build norms and lead to normative influences. Socialization theories have often trumpeted the importance of “transnational activism networks” in promoting compliance with international norms. According to Keck and Sikkink (1998: 201–4), transnational groups induce compliance both by holding governments accountable to previous commitments and also by framing their ideas so as to resonate with the belief systems of target states. Koh’s theory of transnational legal process has been particularly influential in this regard. According to Koh (1998: 642), “repeated participation in the transnational legal process is… a constructivist activity, which helps to reconstruct the national interests of the participating nations.” Meanwhile, a number of scholars who have empirically explored the transnational pathways for normative socialization have come up with more detailed models of transmission. For example, in the “norm cascade” proposed by Finnemore and Sikkink (1998), norm entrepreneurs promote normative evolution and adoption until a tipping point is reached and the norm becomes widely accepted. In the human rights arena, Risse, Ropp and Sikkink (1999) proposed a “spiral model,” a five-step model through which states progressed from repression to rule-consistent behavior through instrumental adaptation, argumentation and habitualization. In Goodman and Jinks’ theory of acculturation, actors will adopt the norms that are accepted in their social environment because of cognitive pressures such as the social-psychological costs of non-conformity and dissonance associated with conduct inconsistent with an actor’s social identity, and because of social-psychological benefits, such as cognitive comfort associated with high social-status and in-group membership (Goodman and Jinks, 2013: 27)

Other reasons for Japan’s noncompliance

Lack of normative legitimacy

Any explanation of Japan’s non-compliance with international refugee law should not only reveal the various interests that could be affecting Japanese decision-making in a rationalist model but must also account for why Japanese interests have not been transformed over the past decades by the power of international refugee norms. One possible explanation could be that international refugee norms lack power in Japan because they are seen as illegitimate. Legitimacy is “necessarily normative and subjective,” thus, it is conceivable that Japan would not find international refugee protection norms to be legitimate even as other countries do (Hurd, 2007: 30). Empirically, this does not seem like a plausible claim, however. Franck distinguishes between substantive legitimacy (which he characterizes as distributive justice) and procedural legitimacy (Franck, 1995). There have been few Japanese criticisms of the substantive legitimacy of the refugee system (in part, perhaps, because of the relatively few refugees hosted by Japan). Procedural legitimacy could perhaps present an issue due to the fact that Asian understandings of refugee law were ignored in the process of drafting the 1951 Refugee Convention, which developed the refugee definition that East Asian states are now expected to use in refugee recognition (Davies, 2008: 19). In fact, this factor has been cited as one reason for the Convention’s low ratification rate in Southeast Asia (Davies, 2008: 19). In general, however, it would be difficult to argue that the Refugee Convention is judged as illegitimate in Japan; even if Japan was not involved in the drafting of the Convention, it has been intimately involved in UNHCR and the international refugee regime since that time, both through its seat on the Executive Committee of the High Commissioner’s Programme (since 1979), and through the work of High Commissioner Sadako Ogata, who led UNHCR from 1991 to 2001. Moreover, Japan’s generous financial support for UNHCR implies a certain amount of recognition of the legitimacy of the refugee regime.

Failure of transnational activism

Another potential explanation for Japan’s incomplete acceptance of international refugee norms could lie in the failure of transnational actors, such as UNHCR and transnational NGOs, to be sufficiently persuasive in their advocacy of refugee protection. There does seem to be some evidence that UNHCR has soft-pedaled its criticism of Japanese refugee policy at times, to the point of perhaps sending out a mixed message. For example, one recent UNHCR representative to Japan stated that he was “very surprised at how advanced [Japan’s refugee system] was, the safeguards that it offered,” and that it was “a system that functions well, that has been well developed over the past 30 years with small numbers” (Yamamoto and Arima, 2012: 65). In 2010, UNHCR High Representative Guterres lauded the “remarkable recent progress” in Japan’s refugee system (which had recognized only 30 refugees the previous year) (Ito, 2010), although his recent comments have been more unequivocally critical (Ito, 2014). The lack of strong criticism may be understandable, given that UNHCR is often accused of taking it easy on major donor states (Stavropolou, 2008: 16), but the net effect could be to lessen the likelihood of Japanese social internalization of refugee protection norms.

Meanwhile, although Japanese domestic NGOs have emerged as advocates for refugee rights and an improved refugee recognition system (Flowers, 2009: 67), the major international NGOs have, in recent years, paid little attention to Japanese refugee issues. Amnesty International was instrumental in putting refugee protection on the Japanese political agenda through campaigns in 1993 and 1997 but in the past ten years has largely ignored the issue: out of the 102 news releases and reports on Japan between March 2005 and January 2015 archived on the Amnesty International website, only one publication focused on refugee issues (an open letter criticizing the prolonged detention of minors seeking asylum), while refugee recognition was only briefly mentioned among a long list of issues in two shadow reports to the Human Rights Committee and the Human Rights Council (Amnesty International, n.d.). A review of Human Rights Watch reports from its website shows none that address Japanese refugee issues (out of 65 reports about asylum seekers) (Human Rights Watch, n.d.). There are a number of possible reasons for this lack of attention, from donor interest to language barriers to lack of high profile victims. Whatever the reasons, one could also argue that this lack of transnational pressure has made the advocacy work of domestic refugee NGOs more difficult. As has been emphasized by Risse et al. (1999: 5), transnational activists are crucial for the diffusion of human rights norms, as they “empower and legitimate the claims of domestic opposition groups against norm-violating governments.”

Lack of regional socialization

A final explanation for Japan’s incomplete socialization of international refugee norms could lie in the lack of acceptance of refugee norms by other jurisdictions in Japan’s most immediate ‘social group,’ namely the East Asian region. Empirical research has shown across a wide variety of issue areas that norm adoption is heavily influenced by the practices of a country’s regional neighbors (Simmons, 2009). Among Japan’s neighboring jurisdictions in the East Asia region, only China, South Korea and Macau are parties to the Refugee Convention (Barbour, 2012).¹⁵ Among these three jurisdictions, China has not developed a refugee recognition procedure, Macau has never recognized a refugee despite having a refugee law and refugee recognition procedure in place since 2004, and South Korea has a refugee recognition rate that is almost as low as Japan’s (Barbour, 2012). Even when Japan’s ‘region’ is expanded to include the Asia-Pacific more broadly, Asian countries generally have a low level of ratification of the Refugee Convention and compliance with international refugee protection norms remains comparatively low (Francis and Maguire, 2013: 1).

From a norm socialization perspective, this can be significant for three reasons. First, Japan will be less likely to benefit from transnational legal discourse related to refugee protection with its peers, as regional associations and networks will be unlikely to address the issue. While Japan has participated with other Asian states in the Bali Process mechanism, this has largely focused on human trafficking issues, especially as related to Southeast Asia and Australia, and has so far resulted in a securitized discourse on refugees, with little practical protective actions (Kneebone, 2014). In contrast, outside of Asia, refugee issues are more frequently addressed in regional organizations, such as the Council of Europe, European Union, Organization of American States or African Union, and in some cases, at the subregional level as well. Second, regional peers will be less likely to persuade Japan on the importance of refugee protection norms. Elsewhere, such persuasion might take place out of a desire to encourage burden sharing, among other reasons. Third, regional-level acculturation forces, such as mimicry and identification, will socialize Japan in the direction of refugee non-protection rather than refugee protection. While this phenomenon would run contrary to acculturation’s more widely understood role in promoting compliance with international law, it is consistent with Goodman and Jinks’ theory, and certainly not without precedent (Goodman and Jinks, 2013: 74).

Domestic institutional factors

A final category of compliance theories focuses on the nature of the domestic regime as a reason for compliance and non-compliance. This type of compliance theory may be of particular utility in explaining situations of non-compliance with a norm that has already been the subject of legal internalization. One prominent domestic regime-based theory, most closely associated with Ann Marie Slaughter (1995), holds that liberal democratic states are more willing to comply with international law. For evident reasons, this does not seem to explain Japan’s non-compliance with refugee norms: Japan is a liberal democracy with an active NGO sector, including many groups interested specifically in refugee law.

Other strands of domestic region theories focus on lack of administrative capacity to comply, or “involuntary non-compliance” (Chayes and Chayes, 1993). Lack of administrative capacity can result from insufficient training or financial resources, lack of access to information, or lack of an appropriate bureaucratic structure (Simmons, 1998: 83). Lack of capacity does not seem a likely culprit for Japan’s non-compliance with refugee protection norms, though. Japan is relatively wealthy and does not face a large number of asylum seekers that would stretch its financial resources. It may be somewhat more plausible to blame a lack of experience with or understanding of refugee law and, indeed, UNHCR has cited “a lack of understanding of refugee issues” as hindering the promotion of a favorable refugee protection environment in East Asia (UNHCR, n.d.b). This might be a valid statement for other Asian jurisdictions but it seems unconvincing for Japan. Japan has a long-established bureaucratic framework for refugee recognition and UNHCR has been providing capacity-building assistance for many years through its sub-office in Tokyo. In addition, Japan has a well-organized community of lawyers and social activists who are knowledgeable about refugee law. Chayes and Chayes (1993: 197) also note that time lag is a possible explanatory factor for non-compliance with an international norm, as domestic actors need time to adjust their behavior, but this seems even less applicable for the Japanese situation, given that Japan has been a party to the Refugee Convention since 1981.

Conclusion

The dilemma of Japan’s low refugee recognition rate presents one of the more challenging issues of the current global refugee regime. Despite its wealth, democratic government and general embrace of the UN system, the number of refugees recognized each year by Japan has been extraordinarily low. While there are some “legitimate” reasons for this low rate, this article concludes that the tiny percentage of refugees recognized is, nevertheless, indicative of non-compliance with the fundamental legal norms of the Refugee Convention. To date, much of the commentary on this state of affairs has focused on Japanese desire to maintain a (relatively) homogeneous society as the explanation. Without discounting the importance of culture, this article looks beyond this factor by systematically examining the principle compliance theories to see what light they can shed on the reasons for Japan’s non-compliance. It finds that other plausible factors include the fear of disturbing relations with China by accepting Chinese asylum seekers; a regional environment that has not accepted basic norms of refugee protection, and a lack of strong pro-compliance pressure from UNHCR and international NGOs.

While these findings do not suggest any silver bullet for raising Japan’s recognition rate, they do suggest certain potential pathways. First, transnational actors should publicly highlight Japan’s low recognition rate at every opportunity and note the detrimental consequences of refugee non-recognition in terms of humanitarian suffering and human security. Doing so would change the interest calculation (from a rationalist perspective) by ensuring that Japan’s non-compliance would lead to it receiving a negative reputation as a country that is not willing to comply with fundamental international norms. From a constructivist perspective, such advocacy could also help persuade people in Japan that welcoming refugees is an important humanitarian policy that is consonant with Japanese values. Second, transnational actors should increase their attention to refugee protection issues at transnational venues, especially at the regional level. In addition to intergovernmental venues such as the Bali Process, this should include trans-governmental networks such as the Asia Pacific Forum of National Human Rights Institutions and Association of Asian Constitutional Courts and Related Associations, and non-governmental networks such as the Asia Pacific Refugee Rights Network (which has tended to focus on the denial of rights to recognized refugees rather than refugee recognition). Finally, transnational actors should increase their efforts at promoting refugee protection norms elsewhere in the East Asia region. Acculturation theories inform us that Japan will see increased social pressure to admit refugees if its regional peers – Korea, Taiwan, Hong Kong, and Macau, at the least – do likewise.¹⁶

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this paper.

Funding

This work was supported by the Hankuk University of Foreign Studies Research Fund of 2015.

1

This figure does not include resettled refugees, such as those who were brought to Japan between 1978 and 2005 as part of the Indochinese Refugee Crisis or refugees from Myanmar resettled as part of the recent pilot resettlement program (Arima, 2012: 82).

2

According to : 107–108), in 2013, Germany recognized 10,915 refugees and Canada recognized 7,817 refugees.

3

While there is no standardized definition of the term, ‘refugee recognition rate’ is defined here as the number of refugees recognized in a particular period of time divided by the number of persons who applied for refugee status during that same period of time.

4

These numbers do not include those who were resettled to Japan from Myanmar (Arima, 2012: 82), nor do they include humanitarian status holders (as discussed in the following section).

5

Of the 598 refugees recognized between 1982 and 2011, slightly over half were from Myanmar (307), with the next most common countries of origin being Iran (69), Vietnam (59), Cambodia (50), and Laos (48) (Arima, 2012: 82).

6

There are exceptions, however. , for example, asserts that Japan has complied with its obligations under the Refugee Convention and Protocol.

7

Compliance is notoriously hard to define, and it is certainly true that all states are sometimes guilty of failing to implement the norms contained in the Refugee Convention. For the purposes of this article, however, I will follow : 104) in defining non-compliance as “actual behavior [which] departs significantly from prescribed behavior.”

8

This comparative approach can be meaningful, in part, because it is exceedingly rare for developed countries to grant refugee status more generously under their domestic laws than would be required under the Refugee Convention. Thus, all else being equal (and as discussed below, that is not always the case), it can be assumed that a wide disparity between refugee recognition rates in the developed world and the low rates in a particular country are much more likely to represent widespread violations by the outlying country rather than refugee policies that are more generous than required by the Refugee Convention on the part of other developed countries.

9

According to a representative of the Japanese Ministry of Justice, the small number of refugees in Japan may be because of Japan’s “uniqueness of language, culture and distance from their original countries” (Iwasaki, 2006).

10

While the Refugee Convention does require that refugees be provided with identity papers if they do not have a valid travel document (article 27), this provision would, on its face, be fulfilled by the provision of documents of humanitarian status.

11

This is based on the two-part framework that has been offered by Keohane (1997). offers a similar framework, dividing compliance theories into ‘rationalist’ and ‘constructivist’ types.

12

As asserted by , “barring an infrequent non-rational act, nations will observe international obligations unless violation promises an important balance of advantage over cost.”

13

It should be noted that refugees also can bring economic benefits that are often overlooked (Zetter, 2012).

14

It should be stressed, however, that while a reputation for being unwelcoming to refugees would presumably not be desired by parts of the Japanese government (including, most notably, the Japanese Ministry of Foreign Affairs), this might not be the case for the Ministry of Justice. On the contrary, the Ministry of Justice, which was a strong opponent of ratification of the Refugee Convention, could favor Japan developing a reputation for non-compliance, because that (and, as discussed earlier, arguably) would lead to fewer asylum seekers coming to Japan.

15

North Korea, Mongolia, Taiwan and Hong Kong are not subject to the Refugee Convention (Barbour, 2012). Hong Kong, nevertheless, established a refugee recognition procedure in March 2014, but as of November 2014, none of the 504 applicants screened under this new procedure were determined to be refugees (Ngo, 2014).

16

While there are few indications that these other jurisdictions are currently moving towards greater refugee recognition rates (and Taiwan, Hong Kong and Macau in particular face particular challenges because they are not members of the UN), in each jurisdiction there have been recent increases in refugee advocacy activity at the civil society level, which has the potential to lead to governmental policy change over time.

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