What Human Rights Do Foreign Nationals, Including Employees of Multinational Corporations, Have in Japan?

Japanese Attorney at Law - Bengoshi L.L.

• 11 min read

As globalization accelerates the movement of people across borders for work, business, and various other reasons, understanding the scope of human rights afforded to foreign nationals in their host countries becomes increasingly vital. Japan, a major economic force and a country with a growing foreign resident population, including many employees of multinational corporations, has its own legal framework addressing this issue. This article examines the human rights guarantees available to foreign nationals in Japan under its Constitution and its international human rights obligations.

The Constitutional Framework: Human Rights in Japan

Chapter III of the Constitution of Japan, promulgated in 1946, is dedicated to the "Rights and Duties of the People" (kokumin no kenri oyobi gimu). A fundamental question that has been subject to extensive legal interpretation is whether these constitutionally enshrined rights apply equally to foreign nationals residing in Japan, or if they are exclusively for Japanese citizens.

The Prevailing "Nature of the Right" Theory (Seishitsu-setsu)

The dominant view in Japanese legal scholarship and judicial practice is the "nature of the right" theory (seishitsu-setsu). According to this theory, fundamental human rights guaranteed by the Constitution are, in principle, also extended to foreign nationals present in Japan. However, this extension is not absolute; rights that, due to their inherent nature, are considered applicable only to Japanese citizens are excluded.

  • Rights Generally Guaranteed to Foreign Nationals: Based on this theory, a wide range of civil and political liberties are typically considered applicable to foreign nationals. These include:
    • Freedom of thought and conscience (Constitution, Art. 19).
    • Freedom of religion (Art. 20).
    • The right to life, liberty, and the pursuit of happiness, to the extent it does not interfere with public welfare (Art. 13).
    • Equality under the law, without discrimination based on race, creed, sex, social status, or family origin (Art. 14).
    • Academic freedom (Art. 23).
    • The right to due process of law (Art. 31).
    • The right of access to the courts (Art. 32).
    • Protections against arbitrary arrest and detention, and rights of criminal defendants (Art. 33-39).
    • The right to own or hold property (Art. 29), subject to laws enacted for the public welfare.
  • Rights Traditionally Limited to Japanese Citizens: Conversely, certain rights are generally understood to be reserved for Japanese citizens due to their intrinsic connection to national sovereignty and the composition of the political community. These typically include:
    • The right to vote in national and local elections (suffrage) (Art. 15).
    • The right to stand for public office at the national level.
    • The right to hold public office that directly involves the exercise of state sovereignty or participation in core governmental decision-making.
    • The right to renounce Japanese nationality (Art. 22, Para. 2).

The Landmark McLean v. Minister of Justice Case

A pivotal Supreme Court of Japan judgment that significantly shaped the understanding of foreign nationals' rights is the McLean v. Minister of Justice case, decided on October 4, 1978. The case involved a U.S. citizen whose application for an extension of his period of stay was denied by the Minister of Justice, allegedly due to his political activities in Japan related to the anti-Vietnam War movement.

The Supreme Court, while affirming the "nature of the right" theory and stating that constitutional human rights guarantees generally extend to foreign nationals, also ruled that:

  1. The guarantee of political activities for foreign nationals, even if falling under freedom of expression, is not identical to that for Japanese nationals. It is subject to restrictions deemed necessary from the perspective of maintaining Japan's political order and interests as the host state.
  2. Decisions regarding the residency of foreign nationals, including the renewal of their period of stay, fall under the broad discretion of the state (specifically, the Minister of Justice).
  3. The Minister of Justice's refusal to renew a foreign national's period of stay, even if based on their political activities, does not necessarily violate the Constitution, provided the activities were not legitimate or were deemed detrimental to Japan's interests. The Court noted that the Constitution's human rights guarantees for foreign nationals are provided "within the framework of the system concerning the stay of foreign nationals."

The McLean judgment has been subject to criticism for potentially granting excessive discretion to immigration authorities and for creating uncertainty regarding the scope of political freedoms for foreign residents. However, it remains a foundational precedent in this area of Japanese law.

Japan is a party to several key international human rights treaties, which impose obligations to respect, protect, and fulfill the human rights of individuals within its jurisdiction.

Key Treaty Obligations

Among the most significant treaties are:

  • The International Covenant on Civil and Political Rights (ICCPR), ratified by Japan in 1979.
  • The International Covenant on Economic, Social and Cultural Rights (ICESCR), also ratified by Japan in 1979.
  • The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
  • The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
  • The Convention on the Rights of the Child (CRC).
  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

These treaties generally require states parties to guarantee the enumerated rights to "all individuals within its territory and subject to its jurisdiction" (ICCPR, Art. 2(1)) without discrimination of any kind, including on the basis of nationality.

Domestic Status of International Treaties

Article 98, Paragraph 2 of the Constitution of Japan stipulates: "The treaties concluded by Japan and established laws of nations shall be faithfully observed." This provision is generally interpreted to mean that duly ratified treaties form part of Japan's domestic law. While the precise hierarchical relationship between treaties and domestic statutes, and even the Constitution, can be a subject of academic debate, the prevailing view is that treaties are superior to ordinary statutes but subordinate to the Constitution. In practice, Japanese courts often endeavor to interpret domestic laws in a manner consistent with Japan's treaty obligations (a form of indirect application or harmonious interpretation). The direct applicability of specific treaty provisions in domestic courts can vary depending on the nature of the provision and judicial interpretation.

A Closer Look at Specific Rights for Foreign Nationals

The practical enjoyment of human rights by foreign nationals in Japan, including employees of multinational corporations, often depends on the specific right in question and their residency status.

A. Civil and Political Rights

  • Fundamental Freedoms:
    • Freedom of Thought, Conscience, and Religion (Constitution, Art. 19, 20; ICCPR Art. 18): These freedoms are generally considered to be fully guaranteed to foreign nationals, reflecting their universal nature.
    • Freedom of Expression, Assembly, and Association (Constitution, Art. 21; ICCPR Art. 19, 21, 22): While these rights are recognized, the McLean judgment suggests that political expression and activities by foreign nationals may be subject to greater restrictions than those applicable to Japanese citizens, particularly if they are deemed to impact Japan's national interests or public order, or if they influence immigration decisions. However, ordinary expression on non-political matters generally enjoys strong protection.
    • Right to Privacy (Constitution, Art. 13, 21(2), 35; ICCPR Art. 17): The right to privacy in one's private life, family, home, and communications is generally guaranteed. Issues surrounding fingerprinting of foreign residents in the past (now largely abolished for most residents) raised concerns under this right and ICCPR Art. 7 (prohibition of cruel, inhuman or degrading treatment).
  • Liberty and Security of Person:
    • Foreign nationals are protected against arbitrary arrest and detention and are entitled to due process rights if accused of a crime (Constitution, Art. 31-39; ICCPR Art. 9, 14). This includes the right to be informed of charges, access to counsel, and a prompt and fair trial.
    • The humane treatment of all persons deprived of their liberty is mandated by ICCPR Art. 10. Japan's daiyo kangoku system (using police detention facilities as substitute prisons for pre-indictment detention) has drawn criticism from the UN Human Rights Committee regarding its compatibility with these standards, affecting both Japanese nationals and foreigners.
    • The prohibition of torture and cruel, inhuman, or degrading treatment (Constitution, Art. 36; ICCPR Art. 7) is absolute and applies to all individuals.
  • Equality and Non-Discrimination:
    • The Constitution (Art. 14) and ICCPR (Art. 2(1), 26) prohibit discrimination. While Article 14 primarily addresses equality under the law, its application to private actors is less direct. However, specific laws address discrimination in certain areas (e.g., employment).
  • Freedom of Movement and Residence:
    • The right to choose and change one's residence (Constitution, Art. 22(1)) is guaranteed "to the extent that it does not interfere with the public welfare." For foreign nationals, this right is fundamentally conditioned by their visa status and the provisions of the Immigration Control and Refugee Recognition Act.
    • ICCPR Art. 12 guarantees the right to liberty of movement and freedom to choose one's residence to everyone lawfully within the territory of a State, and the right to leave any country. The right to enter "one's own country" (ICCPR Art. 12(4)) has been interpreted by the UN Human Rights Committee to potentially include certain long-term foreign residents who have strong ties to the host country, although Japanese court interpretations have been more restrictive.
    • Expulsion of foreign nationals lawfully in the territory can only occur pursuant to a decision reached in accordance with law and, except where compelling reasons of national security otherwise require, they must be allowed to submit reasons against their expulsion and to have their case reviewed (ICCPR Art. 13).

B. Economic, Social, and Cultural Rights

The application of economic, social, and cultural rights to foreign nationals has historically been more contentious, often linked to arguments about state resources, contributions (taxation, social security premiums), and the primary responsibility of the individual's home state. However, there's a growing international consensus, reflected in ICESCR and general comments by its monitoring body, that many of these rights should apply to all individuals without discrimination based on nationality, particularly for legally residing foreign nationals.

  • Right to Work and Favorable Conditions of Work (ICESCR Art. 6, 7): This is intrinsically linked to a foreign national's visa status and work authorization in Japan. Those with valid work permits are entitled to protections under Japanese labor laws, including minimum wages, working hours, occupational safety and health, and protection against unfair dismissal, on par with Japanese workers.
  • Right to Social Security (ICESCR Art. 9):
    • Historically, foreign nationals faced exclusions from certain social security schemes in Japan. For example, prior to 1982 (with full inclusion from 1986 for some), many foreign residents were not eligible for the National Pension scheme.
    • Currently, legally residing foreign nationals who meet the eligibility criteria are generally included in Japan's main social security systems:
      • Health Insurance: Mandatory enrollment for all residents, including foreigners staying for three months or longer (with some exceptions).
      • Pension Insurance: Mandatory for residents aged 20-59. Japan has concluded bilateral social security agreements with several countries (including the U.S.) to address issues like dual coverage and to allow for the totalization of pension periods.
      • Unemployment Insurance and Workers' Accident Compensation Insurance: Generally applicable to foreign employees under the same conditions as Japanese employees.
    • Public Assistance (Livelihood Protection - Seikatsu Hogo): The Livelihood Protection Act is, by its terms, applicable to "citizens" (kokumin). While administrative practice has often extended benefits to certain categories of legally residing foreign nationals (particularly permanent residents and refugees) on a de facto basis, court rulings have been mixed regarding a legally enforceable right for foreigners. A Tokyo High Court judgment on April 24, 1997, acknowledged that emergency aid should be provided to illegally staying foreigners facing an immediate crisis, but denied a right to ongoing livelihood protection benefits.
  • Right to Education (ICESCR Art. 13, 14):
    • Japan ensures that children of foreign nationals residing in Japan have access to public elementary and lower secondary education, generally under the same conditions as Japanese children, although enrollment for foreign children is not legally compulsory as it is for Japanese children. The quality and content of education, including support for non-Japanese speaking children, remain important considerations.
  • Right to an Adequate Standard of Living (ICESCR Art. 11): This includes the right to adequate food, clothing, and housing. Access to public housing for foreign nationals can be subject to specific municipal regulations and availability.

C. Political Rights

As indicated by the "nature of the right" theory and the McLean decision, political rights are the area where foreign nationals face the most significant limitations.

  • Suffrage (Right to Vote and Stand for Election): The right to vote in national Diet elections and local elections, as well as the right to stand for these offices, is restricted to Japanese citizens under the Public Offices Election Act.
    • There has been a long-standing debate in Japan regarding the granting of local suffrage (voting rights in prefectural and municipal elections) to permanent foreign residents. The Supreme Court, in a judgment on February 28, 1995, stated that the Constitution does not prohibit the Diet from enacting legislation to grant local suffrage to permanent foreign residents. However, no such national legislation has been passed to date. Some municipalities have independently established ordinances allowing foreign residents with certain qualifications to participate in local referendums on specific issues, but these are not equivalent to formal suffrage.
  • Right to Hold Public Office: The right to be appointed to public office, especially positions that involve the direct exercise of public authority or participation in the formulation of state policy, is generally limited to Japanese citizens. The Supreme Court judgment of January 26, 2005, concerning a foreign national's eligibility for a managerial position in the Tokyo Metropolitan Government, affirmed that the principle of Japanese nationality is generally required for such public service positions.

Specific Considerations for Foreign Employees of Multinational Corporations

Foreign nationals employed by multinational corporations (MNCs) in Japan are subject to this general framework. Key considerations include:

  • Visa and Immigration Status: The type and scope of rights are fundamentally tied to the employee's specific visa category (e.g., "Engineer/Specialist in Humanities/International Services," "Intra-company Transferee," "Highly Skilled Professional," "Spouse or Child of Japanese National"). Maintaining valid status is paramount.
  • Labor Law Protections: As mentioned, Japanese labor laws (Labor Standards Act, Labor Union Act, Industrial Safety and Health Act, etc.) apply to all employees in Japan, ensuring protections regarding minimum wages, working hours, overtime pay, paid leave, workplace safety, and procedures for dismissal. Foreign employees can join labor unions.
  • Social Insurance Obligations and Benefits: MNC employees and their employers are typically required to contribute to Japan's social insurance schemes (health, pension, unemployment, workers' compensation). Understanding the implications of bilateral social security agreements is crucial for expatriate employees to avoid double contributions and ensure the portability of benefits.
  • Taxation: Foreign employees are subject to Japanese income tax on their earnings in Japan. Tax treaties between Japan and the employee's home country (e.g., the U.S.-Japan Tax Treaty) play a vital role in preventing double taxation and determining taxing rights.
  • Non-Discrimination in Employment: While the Constitution's Article 14 provides a general principle against discrimination, its direct enforcement in private employment can be complex. However, specific labor laws prohibit certain forms of discrimination (e.g., based on sex, union membership). Discrimination based purely on nationality in terms of basic working conditions for legally employed foreign nationals would likely be challenged.
  • Cultural and Language Integration: While not strictly legal rights, practical challenges related to language and cultural differences can significantly impact a foreign employee's work experience and ability to effectively exercise their rights. Employers often play a role in providing support in these areas.

Ongoing Issues and Debates

Several issues concerning the human rights of foreign nationals in Japan continue to be subjects of discussion and legal development:

  • The precise scope of "public welfare" (kōkyō no fukushi) as a justification for limiting the rights of foreign nationals remains an area of judicial interpretation.
  • The rights and treatment of foreign nationals in irregular situations (e.g., undocumented workers, overstayers) are particularly vulnerable, especially concerning access to essential services and protection from exploitation. The 1985 UN Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live distinguishes between rights guaranteed to all non-nationals and those specifically for lawfully present non-nationals.
  • The effectiveness of domestic remedies for foreign nationals who have experienced human rights violations.
  • Japan has not ratified the First Optional Protocol to the ICCPR, which would allow individuals to submit complaints to the UN Human Rights Committee. This limits an avenue for international recourse.

Conclusion

Foreign nationals in Japan, including the many employees of multinational corporations, are afforded a significant range of fundamental human rights under the Japanese Constitution, as interpreted through the "nature of the right" theory, and by virtue of Japan's commitments under international human rights treaties. Core civil liberties, protections within the criminal justice system, and many economic and social rights are generally applicable.

However, the enjoyment of these rights is not always identical to that of Japanese citizens. Political participation rights are substantially restricted, and access to certain social security benefits or the scope of freedom of movement can be contingent upon an individual's specific visa and residency status. The broad discretion vested in immigration authorities, as underscored by the McLean precedent, also remains a significant factor influencing the lived experience of foreign nationals.

For businesses employing foreign nationals in Japan, or for individuals contemplating work or residency, a clear understanding of this nuanced legal landscape is essential for ensuring compliance, protecting rights, and fostering a fair and inclusive environment.