Although the principle of Non-discrimination is enshrined in the International Bill of Rights, the Convention on the Rights of the Child and all other key human rights instruments, children born out of wedlock are still being discriminated against in many different ways. Japanese-Filipino children are particularly affected by discriminatory laws governing the acquisition of nationality.
Explanation of Japanese Laws that discriminate on the basis of birth status
Article 900(4) of the Civil Code
If the father of the child dies without a will, under this law, the inheritance of a child born out of wedlock is held to be ?that of a legitimate child. This law was challenged in the Supreme Court in 1995, but the court held that it is not inconsistent with the Constitution and principle of equality (note that 5 judges dissented).
Articles 13(4) and 49-2(1) of the Family Registration Law
On the birth registration form, a check box indicates whether child is born within a marriage or not. On the family registration form, the child’s relationship with the biological parents is indicated differently also.
In Japan, copies of the family register are often required to be submitted on socially important transitions, such as employment applications. This can lead to discrimination against persons born out of wedlock.
Articles 2 and 3 of the Nationality Law
The father’s recognition is necessary for the child to have Japanese nationality. However, there is no retroactive recognition for a child born out of wedlock. That is, even if the father recognizes his child after birth, the child can only acquire nationality if the parents marry. A 1996 case (Osaka District Court) held that this was not inconsistent with Constitution and not discriminatory.
This law has tremendous impact on the situation of Japanese-Filipino children because it means that a child cannot become a Japanese national, even if entitled to because of parentage, because of the sole reason that he/she was born out of wedlock. Unless the parents of the child marry (to ‘legitimate?the child), the child will not have the same privileges as the offspring of Japanese couples.
Principles embodied in International Treaties:
The Convention on the Rights of the Child Article 2
The general principle of Non-discrimination: All rights apply to all children without exception, and the State has an obligation to protect children from any form of discrimination. This includes discrimination based on birth status.
The International Convention on Civil and Political Rights Articles 2, 24, 26
Articles 2 and 24 prevent discrimination by birth, and Article 26 guarantees equality under the law.
The International Convention on Economic, Social and Cultural Rights Articles 2 and 10
Article 2 prevents discrimination by birth. Article 10 requires the State Party to protect all children without any discrimination for reasons of parentage or other conditions.
Guidelines from Treaty-based Monitoring Bodies:
Human Rights Committee General Comment 17
"Reports by State parties should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field, including inheritance, particularly as between?legitimate children and children born out of wedlock."
Human Rights Committee’s response to Japans?Third Periodic Report
The Committee recommended that Japan amend its legislation to bring it into line with the ICCPR: "The Committee is particularly concerned at the discriminatory legal provisions concerning children born out of wedlock. In particular, provisions and practices regarding the birth registration forms and family register are contrary to the ICCPR. The discrimination in their right to inherit is not consistent with Article 26."
Committee on the Rights of the Child’s response to Japan’s Initial Report
In June 1998, the Committee on the Rights of the Child expressed the same concern as the Human Rights Committee and recommended that legislative measures be introduced to correct this discrimination:
"The Committee is concerned that the general principles of non-discrimination, the best interests of the child?are not being fully integrated into the legislative policies and programmes relevant to children, in particular in relation to children from vulnerable categories such as ?children born out of wedlock. The Committee is concerned that legislation does not protect children from discrimination on all grounds defined by the Convention, especially in relation to birth, language and disability."
Committee on Economic, Social and Cultural Rights' response to Japan's Second Periodic Report
In September 2001, the Committee on Economic, Social and Cultural Rights expressed concern about the persisting legal, social and institutional discrimination against children born out of wedlock, in particular as regards the curtailment of their inheritance and nationality rights. The Committee urged that Japan "remove the concept of "illegitimate children", which is unacceptable in a modern society, from legislation and practice, urgently to take legislative and administrative measures to eliminate all forms of discrimination against children born out of wedlock, and further to restore the Covenant rights of persons so affected (Arts. 2 (2) and 10)."
It is worth noting that most countries in the West have removed all distinctions in their laws between children born within and out of wedlock. Legal reforms directed at equalizing the birth status of children have taken place in New Zealand (1969 Status of Children Act), Ireland (1987 Status of Children Act), many states of the United States (legislation patterned on the Uniform Parentage Act), Britain (The Family Law Reform Act of 1987), and Scotland (1986 Law Reform (Parent and Child) (Scotland) Act. Norway achieved substantial legal equality for children born outside of marriage as early as 1915. The process of reform in these countries has been stimulated by recognition of the rights of children born outside of marriage under the European Convention on the Legal Status of Children Born Out of Wedlock. It provides, in its preamble, that efforts have been or are being made in a large number of member states of the Council of Europe to improve the legal status of children born outside of marriage by reducing the differences between them and children born within marriage that are to their legal or social disadvantage.
Questions for Discussion:
1. Are children born out of wedlock treated differently by the law in your country?
2. Discuss the following quote:
"In so far as the system of marriage by law is adopted, in a way it is a logical outcome of this system that a difference in the share of inheritance emerges between legitimate and illegitimate children." (Supreme Court of Japan, 1995)