1 | P a g e
The CEDAW Committee: Signs of
disguised Uniformity?
Master thesis of
Student: Comfort Williams
Master track: European and International Law track: Public International Law Supervisor: Professor Yvonne Donders
2 | P a g e Abstract
The aim of this thesis is to explore to what extent it can be said that the Committee for the Convention on the Elimination of Discrimination against Women (CEDAW) has taken a uniform approach in the implementation of the CEDAW in regard to finding Article 733 and 750 Japanese Civil Code incompatible with the CEDAW.
The CEDAW is a United Nations (UN) treaty that was adopted in by the UN General Assembly in 1979. The CEDAW treaty contains human rights for women, and also requires states that ratify the Convention to take positive steps to end discrimination aimed at women. The first stage of the thesis will discuss the concept of cultural relativism, and the specific arguments of Asian values, universalism, the Universalist stance of CEDAW, and uniformity. A discussion will take place as to their relevance to human rights and why they are so heavily debated and the criticisms that they receive the middle ground between cultural relativism and universalism.
The thesis will then go on to discuss the family law system in Japan including how it operates as a system. After this discussion takes place the thesis will go on to examine how Article 733 and 750 are incompatible with CEDAW because the CEDAW Committee do not explain why the two laws are incompatible with the Convention. The thesis will look at both Article 733 and 750 Japanese Civil Code de jure and then the law in practice in order to determine the extent to any incompatibility, in doing so the thesis will use CEDAW provisions to determine whether or not the laws are incompatible.
The thesis will then go on to establish that there are cultural values that exist and could be taken into account by the CEDAW Committee. In doing this the historical background behind Article 733 and 750 Japanese Civil Code will be assessed. The historical background will give an insight into the cultural values that are within the Japanese Civil Code. The thesis will then go on to examine whether the CEDAW Committee took these cultural values into account when coming to a decision concerning Article 733 and 750. This assessment will take place in order to determine whether the CEDAW Committee has taken a uniform
approach to the implementation of the treaty.
In conclusion the thesis argues Japan has a vast range of cultural values that has a huge impact on the Civil Code and Japanese society. Additionally, the thesis will argue that the CEDAW Committee can be said to have taken a uniform approach to the implementation of the Convention because of its disregard of Japanese cultural values.
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Contents
CHAPTER I Introduction... 4
Chapter II The Conflict Between Cultural Relativism and Universalism ... 9
II.2.0 Cultural Relativism ... 9
II.2.1 The Asian Values Argument ... 10
II.2.2 Universalism and Uniformity ... 11
II.2.3 The Universalism of the CEDAW Committee ... 13
II.2.4 Criticism of Cultural Relativism, Asian values and Universalism ... 14
II.2.5 The Middle Ground Between Cultural Relativism and Universalism ... 16
CHAPTER III The Koseki Rules and CEDAW ... 18
III.3.0 The Japanese Koseki System ... 18
III.4.2 Article 733 Japanese Civil Code ... 19
III.4.2 Article 733 Japanese Civil Code and CEDAW ... 20
III.5.0 Article 750 Japanese Civil Code ... 22
III.5.1 Article 750 Japanese Civil Code and CEDAW ... 25
III.5.2 The Japanese House System ... 26
CHAPTER VI Cultural Values and CEDAW ... 31
VI.6.0 Article 733’s Cultural Values ... 31
VI.7.0 Article 750’s Cultural Values ... 34
VI.8.0 The CEDAW Committee signs of Uniformity? ... 35
CHAPTER V Conclusion... 39
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CHAPTER I Introduction
The aim of this thesis is to explore to what extent it can be said that the CEDAW Committee has taken a uniform approach in the implementation of the CEDAW in regard to finding Article 733 and 750 Japanese Civil Code incompatible with the CEDAW treaty.
Universalism and cultural relativism are two theoretical conceptions of the nature of human rights, the content of human rights differ according to each theory.1 Whether and how human rights should apply in all the different parts of the world is a hugely discussed topic. Cultural relativism is seen as a "safeguard" to the different cultures in the world. It is the belief that human rights should apply according to the cultural values of specific cultural groups and not to the whole world. The argument is strongly held in East Asia, as there is an 'Asian Values' argument, the claim that "the Asian society comes from a culture which contains an
exceptional set of values."2 Universalism is the opposite of cultural relativism and the Asian values argument it is the belief that human rights are a fundamental truth. As well as that human rights are ‘inalienable self-evident and applicable to all human beings’3 and they should apply throughout the world irrespective of cultural preferences. Uniformity is to assert that “views of human rights transcend all possible philosophical, cultural, or religious
differences.4
As opposite as universalism and cultural relativism are to each other, there is a possibility for a middle ground. Universalism does not need to be viewed as uniformity.5 If space is
explicitly made to accommodate economic, cultural and legal diversity, human rights can still be universal and hopefully satisfy cultural relativists too.6
1Charters, Claire. "Universalism and Cultural Relativism in the Context of Indigenous Women’s Rights." Human Rights Research: 1 PG 9
2Steiner, Niklaus, Mark Gibney, and Gil Loescher. Problems of protection: The UNHCR, refugees, and human
rights. Psychology Press, 2003. Chap. Defining Persecution and Protection PG 65
3MATTHEW LOWER, Can and Should Human Rights Be Universal? DEC 1 2013PG 1 HTTP://WWW.E -IR.INFO/2013/12/01/C AN-AND-SHOULD -HUMAN -RIGHTS-BE-UNIVERSAL/
4Tharoor, Shashi. "Are human rights universal?." World Policy Journal 16.4 (1999): 1-6 PG 6
5Damon, William, and Anne Colby. The power of ideals: The real story of moral choice. Oxford University Press, USA, 2015. Chapter The Power of Ideal PG 196
6
Advisory Council on International Affairs, Universality of Human Rights. Principles, Practice and Prospects, Advice No. 63, The Hague, November 2008 PG 19 ACIA
5 | P a g e The Vienna Declaration on Human Rights adopted in 1993 tries to reconcile cultural
relativism and universalism, under Article 5 of this Declaration human rights are declared to be universal.7 The negotiation phase of the Vienna Declaration on Human Rights was very long and intense as many Asian states did not agree with the idea of human rights being universal.8 During the negotiation stages of the Vienna Declaration the Asian values argument was at its most prominent (early 1990s). 9 Likewise, in 1993 the Bangkok Declaration was signed by a number of Asian states, in preparation for the Vienna
Conference. This declaration is the biggest expression of the Asian values argument as it is a prolonged criticism of universalism and the Western world.10 This is partly why Asian states were opposed to the idea of universal human rights. However, due to the fact that Article 5 Vienna Declaration recognised particularities and diversities in the discourse of human rights, preserving the role of sovereign states, no Asian states opposed the declaration.11 Among the Asian states that signed the Bangkok Declaration as a sign of opposition to universalism is Japan, which supports the Asian values argument.12
Japan is a particularly interesting case because after World War II, the United States as a part of the coalition forces occupying Japan, ordered Japan to become less isolated, and more democratic and enshrine the principle of equality.13 Consequently, in 1980 Japan ratified the CEDAW14 after pressure from international actors to continue their democratic process.15 At the time Japan ratified the CEDAW; there was opposition by women’s rights groups because the Japanese government did not revise the family law system. The reason why this was so contentious is because the Japanese Koseki System (family law system) is seen as
7
Vienna Declaration and Programme of Action Adopted by the World Conference on Human Rights in Vienna on 25 June 1993 Article 5
8 Tae-Ung Baik, Emerging Regional Human Rights Systems in Asia Cambridge University Press 1 Nov 2012
Chapter Human Rights Norms in Asia PG 146
9
ACIA, 17
10 FINAL DECLARATION OF THE REGIONAL MEETING FOR ASIA OF THE WORLD CONFERENCE
ON HUMAN RIGHTS The Ministers and representatives of Asian States, meeting at Bangkok from 29 March to 2 April 1993, pursuant to General Assembly resolution 46/116 of 17 December 1991 in the context of preparations for the World Conference on Human rights, adopt this Declaration, to be known as "The Bangkok Declaration"
11 Tae-Ung Baik 146 12 ACIA, 17
13
Dean, Meryll, ed. Japanese legal system. Routledge, 2002. PG 70-71
14 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in
1979
15Flowers, Petrice. Refugees, women, and weapons: international norm adoption and compliance in Japan. Stanford University Press, 2009.Chapter Gender Equality and Women’s Employment PG 74
6 | P a g e fundamentally discriminatory against women, and contrary to the CEDAW. 16 However, in response to this criticism the Japanese government has continually reiterated that the Koseki system enshrines equal rights for men and women; therefore, there is no need to revise the system.17
The Koseki system in Japan is controversial because it is seen as a tool of discrimination against minority groups, including women.18 There are two highly contentious laws within the Koseki system that the CEDAW Committee has constantly found to be incompatible with the CEDAW. The first law is Article 733 Japanese Civil Code, which prohibits a woman from remarrying within six months of a divorce.19 The second law is Article 750 Japanese Civil Code, which requires a married couple to have the same surname.20 The controversy surrounding Article 733 stems from the fact it only applies to women. Article 750 does not make explicit reference to women but it is still considered discriminatory against women because 96% of the time women will change their name upon marriage not men. The CEDAW Committee have repeatedly asked Japan to repeal both laws whilst condemning them.21 The Japanese government and the Courts have consistently defended both laws, saying that they are not discriminatory towards women.22
These two laws become relevant in light of the universalism and cultural relativism debate because the Japanese Supreme Court has mentioned that they protect essential cultural values such as the ‘family unit’.23
The family or the household is important in Japan; the emphasis that Japan puts on the family unit is represented in the Koseki system. The Civil Code that existed before the Koseki system represented a Japan that valued the family unit but also made the male a dominant figure in the family. A part of the family law system under the former Japanese code was called the ‘House System’. This system concerned how the
16
Hayashi Yoko, Ampojapan-Asia Quarterly Review. Voices from the Japanese Women's Movement. Taylor & Francis, 2015 Chp. 6 Policies of the Japanese Government Toward Women PG 102
17 Hayashi Yoko, 102 18
The Georgetown Journal of Gender and the Law, Volume 7 Georgetown University law Center 2006 PG 193
19 Civil Code Japanese Law Translation by the Ministry of Justice on April 1, 2009. Law number: Act No. 89 of
1896 Civil Code Part IV and Part V Article 733
20 Civil Code Japan,Article 750
21
CEDAW/C/JPN/CO/7-8 Distr.: General 7 March 2016 Original: English ADVANCE UNEDITED VERSION Committee on the Elimination of Discrimination against Women Concluding observations on the combined seventh and eighth periodic reports of Japan para 13 (a)
22 Supreme Court, 3rd Petty Bench, 5 December 1995, 1563 Hanreijibou 81 Library of Congress Website 23 Japan: Supreme Court States Family Name System Constitutional Case No. 2014 (o) 1023 (Dec. 16,
7 | P a g e household operated including making the male the head of the household.24 Before Japan was forced to change their previous Civil Code after World War II, Japan had very strong
perspectives of gender specific roles, hence why the male was the head of the house.25 Although the house system may not be in the law now it still has a significant influence in Japan today as it is still a part of Japanese culture, it may be a factor contributing to 96% of women changing their surname upon marriage.
The CEDAW Committee is deemed universalist because the Committee does not usually allow for cultural arguments as a defence to treaty violations.26 Though, the universal stance that the CEDAW Committee has undertaken could be interpreted as an expectation for uniform implementation of the CEDAW. This is because the CEDAW Committee does not mention the terms ‘culture or cultural values’ when communicating to Japan about Article 733 and 750. The failure of the CEDAW Committee to mention terms such as culture is an indication of uniformity, because completely disregarding culture and the CEDAW
Committee not taking the Japanese cultural values into account can be uniformity the thesis will investigate this.
This thesis is structured in three Chapters, plus a conclusion. The first chapter will discuss cultural relativism, the Asian values argument, universalism, uniformity and the CEDAW Committee’s universalism. This will involve establishing what they are, stating why they as arguments exist, stating their criticisms and establishing the middle ground between the arguments. The second chapter assesses Article 733 and 750 Japanese Civil Code in light of relevant CEDAW provisions, as it important to understand how the laws conflict with the CEDAW since the CEDAW Committee does not say how they do. In doing this the Koseki system will be explained, then the two laws will be looked first at de jure, and the laws will be looked at de facto, as what happens in practice is relevant for understanding how the laws are incompatible. The third chapter explores the cultural values that surround Article 733 and 750 will be explored, so as to establish that there are cultural values present that could have
24 Dean, Meryll, 118
25 Anne E. lmamura The Japanese Family For Video Letter from Japan II: A Young Family. Asia Society
(1990): 7-17. PG 1 http://www.columbia.edu/cu/weai/exeas/resources/pdf/japanese-family-imamura.pdf
26 Machiko Kanetake, Andre Nollkaemper The Rule of Law at the National and International
Levels:Contestations and Deference Bloomsbury Publishing, 21 Apr 2016 Chapter 13 Universality, Diversity, and Legal Certainty: Cultural Diversity in the Dialogue Between the CEDAW and States Parties Yvonne Donders and Vincent Vleugel PG 333
8 | P a g e been considered by CEDAW Committee. Then an assessment of The CEDAW Committee will take place, consisting of a determination on whether the Committee expects uniformity in the implementation of the treaty. In establishing the cultural values that surround Article 733 and 750 the historical background, the reason for their existence and the effect that they have in Japanese society will be discussed. In conducting stage two and three of this thesis, relevant CEDAW provisions, the CEDAW Committee State Reports, List of Issues (LOI’s), Concluding Observations, Japanese laws, Japanese case law (translated by the Japanese Supreme Court or be the Library of Congress), Japanese literature and English literature will be taken into account.
Finally, the conclusion will draw together evidence from the three Chapters to argue that the CEDAW Committee can be deemed to have taken a uniform approach in its judgement towards Article 733 and 750 Japanese Civil Code.
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Chapter II The Conflict Between Cultural Relativism and Universalism II.2.0 Cultural Relativism
Radical cultural relativism would hold that culture is the sole source of the validity of a moral right or rule.27 Cultural relativists argue the fact is that different cultures simply have
different moralities so there cannot be an absolute standard of moral truth.28 Cultural relativists are committed to one or both of the following premises:
“That knowledge and truth are culturally contingent, creating a barrier to cross cultural understanding; And that all cultures are equally valued. Combined with the empirical observation of cultural diversity worldwide, these two premises lead to the conclusion that human rights norms do not transcend cultural location and cannot be readily
translated across cultures.”29
Cultural relativism can be seen as a reaction to western culture because when speaking of cultural relativism often the phrase ‘Western culture’ (Europe, North America and
Australia)30 is used. Cultural relativists believe that international human rights are a Western concept, and by that they mean that human rights were made in the Western but should be applied to the whole word.31 The dominance and power of the Western world in international relations has often been interpreted as leading to an uneven Western influence in the shaping of human rights. Non-western countries could not fail to react to such an evolution,
subsequently, human rights have been deemed too Western.32 In the view of cultural
relativists there cannot be an absolute truth as to what is right and what is wrong because of the different influences of cultures in the world.
27Donnelly, Jack. "Cultural relativism and universal human rights." Human Rights Quarterly 6.4 (1984): 400-419.
28 Melville J. Herskovits Louis P. Pojman, Is Morality Relative to Culture? Issue 1 PG 3
http://www.westminster.edu/staff/nak/courses/Herskovits%20&%20Pojman%20on%20moral%20relativity.pdf
29Higgins, Tracy E. "Anti-essentialism, relativism, and human rights." Harv. Women's LJ 19 (1996): 89. PG 95 30Vincent, Raymond John. Human rights and international relations. Cambridge University Press, 1986. Chapter 3 Human Rights and Cultural Relativism Pg 36
31Brems, Eva. "Reconciling universality and diversity in international human rights: A theoretical and
methodological framework and its application in the context of Islam." Human Rights Review 5.3 (2004): 5-21. PG 7
32
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II.2.1 The Asian Values Argument
The Asian values argument which predominantly applies in East Asia33 is partly a criticism of Western culture but also is used as an example by cultural relativists to support the cultural relativism theory.34 This criticism developed largely in the 1990’s at that time some of the leaders in Eastern Asia started speaking about ‘Asia’s own’ values juxtaposing them with ‘alien’ ideals, such as democracy, human rights and freedom. There were assertions that the future belonged to Asia because Asia was the most rapidly developing region in the world in the end of the 20th Century. 35 The main supporters of the Asian values argument are
Singapore and Malaysia and Japan has embraced the same position.36
The Asian values argument contains certain key concepts, such as the assertion of the uniqueness of the Asian culture, claims of Western interference, hypocrisy and cultural decay.37 In the view of those that support the Asian values argument Asian values stem from Confucianism. Instead of rights based morality of human rights it is virtue based centred on becoming a person of excellence. The concept of becoming a person of excellence discreetly plays a significant role on living with harmony with other members of the community.38 The Asian values argument says that (Eastern) Asian culture is built upon ‘group orientation’; this means that the interests of the community as a whole are put before the individual.39
Asian values can be seen as being in conflict with human rights because international human rights are mostly individual rights but Asia is a culture that is identified as consisting of “obedience to authority, intense allegiance to groups, and submergence of individual identity in collective identity.”40
Trying to mould concept of individual rights into Asia which is more of a group orientated culture has been called inappropriate.41
33Sen, Amartya. Human rights and Asian values. New York: Carnegie Council on Ethics and International Affairs, 1997. PG 13
34
The Bangkok Declaration 1993
35Furuoka, Fumitaka, Beatrice Lim Fui Yee, and Roslinah Mahmud. "Japan and Asian Values: A Challenge for Japan's East Asian Policy in theNew Century." Journal of Contemporary Eastern Asia 5.1 (2006): 1-8. PG 4 http://eastasia.yu.ac.kr/documents/Fumitaka_5_1.pdf
36 ACIA, 17
37Furuoka, Fumitaka, Beatrice Lim Fui Yee, and Roslinah Mahmud, 17 38 ACIA, 17
39Inoguchi, Takashi, and Edward Newman. "Introduction:‘ Asian values’ and democracy in Asia’." Asian
Values’ and Democracy in Asia 27 (1997). Para 2
40 Englehart, Neil A., "Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucian Ethics
in Singapore"(2000). Political Science Faculty Publications. Paper41 PG 561 http://scholarworks.bgsu.edu/poli_sci_pub/41
41
11 | P a g e Because the Asian values argument does not have one set definition (despite it being
embedded in the Bangkok Declaration) it seems that when it is used in discussions of human rights it is usually bent to the will or the needs of the person who states the definition or idea, whether they are from within or outside Asia.
To summarize, the Asian Values argument states that the individual accepts that the stability of society and government is more important than their individual self, and from that they accept the idea of hierarchy and conformity.42 Asian values involve wide cultural, religious and economic diversity, and the supporters of the argument believe this must be taken in account when international human rights law is being further developed.43
II.2.2 Universalism and Uniformity
Radical universalists would argue that “culture is irrelevant to the validity of moral rights or rules, which are universally valid.”44
Additionally, Article 5 of The Vienna Declaration on Human Rights1993 states:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis…The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.45
The area of human rights was very conspicuous during the negotiations of the Vienna
Declaration, which made the negotiations very long. Some Asian states were not in favour of the idea of universal human rights, however, from Article 5 of the Declaration it can be seen that the nations agreed that human rights are universal. Due to the prolonged negotiations, no Asian states proposed amendments or opposed the Vienna Declaration when it was adopted.46
42
Inoguchi, Takashi, and Edward Newman. Para 2 43 ACIA, 17
44Donnelly, Jack, 401 45
Vienna Declaration, Article 5 46
12 | P a g e International human rights instruments designate a universally recognized standard of
accomplishment, that being in the sense of worldwide and overall applicability to all human beings.47 International human rights can be considered as the accepted standard of
international morality in the view of some universalists.48
In the view of some universalists human rights should be understood to be the rights one has just because one is a human being, hence the name human rights. 49 This is what makes human rights inalienable, self-evident and applicable to all human beings.50 They cannot be appointed to a human being, nor can they be surrendered, nor can they be altered. Where human rights exist they are held equally by all human beings.51 Universalism also prioritises individual rather than groups rights because, human beings as individuals are the only possible holders of rights in the view of some universalists.52
Uniformity is to assert that human rights should be applied in a uniform standard by every state in the world at all times.53 “Views of human rights transcend all possible philosophical, cultural, or religious differences or represent a magical aggregation of the world's ethical and philosophical systems.”54 Considerations of cultural, traditional and historical backgrounds in the application of human rights are invalid.55 The difference between universalism and uniformity is that universalism says one of the primary obligations of states is to protect human rights as a central tenet of its political and social organisation.56 Universalism
acknowledges that human rights can be applied in conjunction with the political structure of a state. Uniformity does not recognise the political and social organisation of a state, and expects human right to apply the same globally in any political structure.57
47 Brems, Eva. 7 48 ACIA, 10-15 49Donnelly, Jack, 401 50 MATTHEW LOWER, 1 51 ibid 52Charters, Claire. 10
53DeLaet, Debra L. The Global Struggle for Human Rights. Cengage Learning, 2014. Chapter 3 Are Human Rights Universal PG 45 54 Tharoor, Shashi, 6 55 DeLaet, Debra L, 45 56
Viljoen, Frans. International human rights law in Africa. Oxford University Press on Demand, 2012. Chapter An Introduction to International Human Rights PG 8
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II.2.3 The Universalism of the CEDAW Committee
As the CEDAW treaty was being drafted, it was known that culture can impede the realization of women’s full equality.58
The CEDAW Committee has a goal to ensure that there is a minimal modicum of human dignity that should be adhered to in all societies so that culture cannot impede the realization of women’s right. The CEDAW Committee aspires to be universalist, the Committee strives for modernism and rationalises that discrimination cannot be vindicated through culture.59 The realisation of women’s rights is important to the CEDAW Committee because women’s rights are inalienable in the Committee’s view.60
In Article 2(f) and 5(a) CEDAW, the convention takes a very firm universalist approach, as the two articles explicitly oblige states to modify customs that discriminate against women.61
Article 2(f) reads as:
States undertake to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute
discrimination against women.62
Article 5(a) reads as:
States Parties shall take all appropriate measures: To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.63
58Mizzi, Marcella. "How Does The Convention on the Elimination of Discrimination Against Women Address The Problem Of Culture And Tradition?." PG 18
59Gouws, Amanda, and Daiva Stasiulis, eds. Gender and Multiculturalism: North-South Perspectives. Routledge, 2015. Chapter Muslim Women and Human Rights: Does Political Transformation Equal Social Transformation y Wendy Isaacs – PG 118-119
60 UN Committee on the Elimination of Discrimination Against Women (CEDAW),CEDAW General
Recommendation No. 21: Equality in Marriage and Family Relations, 1994, available at: http://www.refworld.org/docid/48abd52c0.html [accessed 7 July 2016] Paragraph 3
61Charters, Claire, 6 62
CEDAW Article 2 (f)
63
14 | P a g e The two Articles are a reflection of CEDAW’s prioritisation of freedom from discrimination over culture.64Article 5 is a recognition by the Committee that abuses to women’s human rights are largely confined within the private sphere because it obliges States to modify social and cultural patterns of the conduct of men and women. Therefore, states can be made liable if they do not punish the perpetrators or if they promote a culture, that justifies these
traditions.65 In addition to Article 2 and 5 the general recommendations of the CEDAW Committee have been quite bold by the willingness to battle culture.66 General
Recommendation 21 emphasises the CEDAW Committee’s distinctive approach in
recognising that culture and tradition shape the behaviour of men and women and in effect limit the exercise of the women’s basic rights. 67
General Recommendation 19 acknowledges culture and tradition perpetuate practices that are harmful to women.68 One can see the universalist approach of the CEDAW Committee, and the critical nature towards cultural arguments that undermine the working of the treaty. Therefore, one could conclude that the CEDAW Committee leaves very little room for cultural variation in the implementation of the Convention.69 The fact the Committee leaves little room for culture is a slight indication that they leave some type room for cultural preferences; therefore, the Committee can be deemed universalist not as uniform.
II.2.4 Criticism of Cultural Relativism, Asian values and Universalism
Cultural relativism criticises universalism for not respecting cultural preferences and not understanding that there are different moralities throughout the world and that it would be inappropriate to apply human rights everywhere.
“Additionally, moral rules, including human rights, function within a moral community. Radical universalism requires a rigid hierarchical ordering of multiple moral communities to which individuals and groups belong. In order to preserve complete universality for basic rights, the radical universalist must give absolute priority to the demands of the cosmopolitan
64
Charters, Claire, 9 65Mizzi, Marcella, 19 66
Lan Cao. Culture in Law and Development: Nurturing Positive Change Oxford University Press, 2 May 2016 PG 226
67 CEDAW General Recommendation 21 Paragraph 3 68
UN Committee on the Elimination of Discrimination Against Women (CEDAW),CEDAW General Recommendation No. 19: Violence against women , 1992, available at:
http://www.refworld.org/docid/52d920c54.html [accessed 7 July 2016] paragraph 20
69
15 | P a g e moral community over all other lower moral communities. The complete denial of national and subnational ethical autonomy and self-determination is dubious at best.”70
Cultural relativists would say that, the ideology that universalism is based upon does not provide for other perceptions. This would translate to the lack of recognition that, “essential aspects of human dignity are ensured through membership in the community rather than through inherent rights that attach to the individual.”71
Uniformity is criticised because relativist’s believe that merely stating that human rights transcend everything is not enough, diversity should be recognised. Uniformity overlooks that culture is a widespread
phenomenon.72 If people are not convinced of the importance of human rights and of the link
between human rights and some of their most cherished values, then they will not change their cultural practices.73 Uniformity is not the way to convince people to change their cultural practices because it can threaten certain parts of certain cultures without offering a proper explanation as to why the cultural practice needs to change and the disregard of cultural practices is seen as disrespectful.74
Universalism criticises both cultural relativism and the Asian values argument for ‘approving human right violations’.75 Additionally, particularly in regard to women, cultural relativism does not take into account that norms of justice are often constructed under principles of gender inequality. The views of relativists can tend to be more favourable to the powerful members of the group, subsequently; they tend to mask the role of gender in shaping interests, ideologies and practices of the group.76 Moreover, as previously stated the Asian values argument is not immune to being bent to the will of the person that is stating it at the time. Similarly, those who use the argument of preserving culture can also use it to justify harmful practices to women or promote inequality in order for their own political or personal gain.77
70Donnelly, Jack, 401 71
Charters, Claire,12
72Spagnoli, Filip. Homo Democraticus: On the Universal Desirability and the Not So Universal Possibility of
Democracy and Human Rights. Cambridge Scholars Press, 2003. Chapter Six: Culture (Non-Universality
because of Inequality) Section Thirteen: Real Diversity PG 219 73
Spagnoli, Filip, 219 74Spagnoli, Filip, 233
75Bottigliero, Ilaria. Redress for victims of crimes under international law. Springer, 2013. Chapter V PG 162 76Charters, Claire,11-12
77
Hollenbach, David. Driven from home: protecting the rights of forced migrants. Georgetown University Press, 2010. Chapter No Easy Road to Freedom PG 83 M Briton Lykes
16 | P a g e Furthermore, universalists ask how can an Asian values argument exist when in Asia there are many different cultures, and at times across just one country? How is it possible that there is an argument that can accurately represent Asian values and then go on to operate
properly?78 Though, the Bangkok Declaration was signed by those Asian states that support the Asian values argument, and in turn agree that it represents them.
II.2.5 The Middle Ground Between Cultural Relativism and Universalism
According to some, cultural relativism should not be seen as being in conflict with
universalism, also cultural specifics should not automatically be deemed incompatible with human rights.79 Universalism and cultural relativism are both inflexible, though a middle ground between the two doctrines can be found. That middle ground may not be completely satisfying to the extremes of each doctrine, but it should be an acceptable representation of a compromise for all cultures in involved. The middle ground in this sense means identifying a general guideline that all can agree on.80
Universalists should not be quick to make moral judgements about customary practices that are little-known to others; likewise, cultural relativist should not subvert the whole procedure of moral debate by denying the existence of moral truth.81 If universalism is viewed as human rights being applied everywhere in the world, but not as uniformity of human rights, then a sensible middle ground between culturally oblivious universalists and extreme relativists could be found.82 If cultural variation is acknowledged and human rights norms leave space for culturally specific implementations, then it should be appealing for cultural relativists to embrace the framework of international human rights.83 Alternatively, an unforced
international consensus on human rights could be reached with different cultural groups reaching an agreement on the norms that should govern human behaviour.84 Each cultural group could have its own method of justifying the norms that it believes should govern
78
Sen, Amartya Kumar. "Democracy as a universal value." Journal of democracy 10.3 (1999): 3-17. PG 14 79 ACIA, 19
80Billet, B. Cultural relativism in the face of the West: the plight of women and female children. Springer, 2008. Chapter Conclusion: Toward Cross-Cultural Universals PG 184
81
Shweder, Richard A. "and Universalism." A companion to moral anthropology(2012): 85. PG 88 82Damon, William, and Anne Colby 196
83 ACIA, 19
84Fielder, Lauren. Transnational Legal Processes and Human Rights. Routledge, 2016. Chapter Universal Human Rights and Cultural Relativity PG 30
17 | P a g e human behaviour from their individual background conceptions. The reasons why each cultural group has chosen each norm as the right norms to be content to live in this consensus, undisturbed by the differences of profound underlying belief could be agreed and disagreed on. Effectively, human rights norms would be justified in very different underlying cultural outlooks.85
85
18 | P a g e
CHAPTER III The Koseki Rules and CEDAW III.3.0 The Japanese Koseki System
An examination of how Article 733 and 750 are incompatible with the CEDAW will take place. This is because the CEDAW Committee does not explain why the two laws are incompatible with the Convention and also to bring some context to the cultural values that lay behind the laws which will be discussed in Chapter VI. The Koseki system is an elaborate system of family registration that penetrates into the life of each Japanese household and controls it in a fundamental way it is relevant for both Article 733 and 750 Japanese Civil Code. The Koseki system is what lies behind Japan’s gender relations.86 The Koseki system is the Japanese family law and registration system within the Japanese Civil Code it records anything to do with the family, including name change and divorce.87 The Koseki system was put into effect in 1898, however, when the United States as the part of the Allied Occupation told Japan to adopt laws of equality the Koseki system had to change. 88 The Supreme Commander for the Allied Powers (SCAP) prepared a new Constitution for Japan, which included provisions that placed importance on individuals such as equality for all (Article 14 Japanese Constitution) and individual dignity (Article 24 Japanese Constitution). The
Constitution was approved by the Japan’s Diet Assembly however, as SCAP was involved in the drafting process of the Constitution, it was not entirely acceptable to the Japanese.89
The 1947 Japanese Constitution is still in effect in present day and because of the
Constitution many revisions were made to the Koseki system. This included allowing women to become the head of the household, whereas previously only men could be the head of the household. Japan is not a country that puts focus on the individual, this means that their family law system does not properly protect the rights of individuals as that would be too difficult to introduce in Japan.90 The Koseki system is controversial because many believe that it has not properly incorporated the principle of equality.
86
Yoshio Sugimoto, . An Introduction to Japanese Society. Cambridge: Cambridge University Press. 1997 PG 157
87Andō, Nisuke, ed. Japan and International Law: Past, Present and Future: International Symposium to Mark
the Centennial of the Japanese Association of International Law. Vol. 5. Martinus Nijhoff Publishers, 1999. Chp International Human Rights Law and The Japanese Law Concerning Family Relations – Junko Torii PG 258
88Dean, Meryll 70-71
89Brune, Lester H. The Korean War: Handbook of the Literature and Research. Greenwood Publishing Group, 1996. Chapter Japan and the Korean War PG 137
90
19 | P a g e The Koseki system requires the family to choose a head of the household, which is typically the male member of the family.91 When a head of the household is chosen that means that everyone else in the family must adopt the surname of the household head.92 Registration in the Koseki system also means that a child born within 300 days after a couple gets divorced will be regarded as the child of the ex-husband.93 This means that women have to wait six months before they can remarry after a divorce.94
III.4.2 Article 733 Japanese Civil Code
Article 733 Japanese Civil Code reads as follows:
(1) A woman may not remarry unless six months have passed since the day of dissolution or rescission of her previous marriage.95
The controversy surrounding Article 733 is that it only applies to women, and there is no such equivalent provision for men in Japanese law. The law exists so as to avoid paternity issues, as the law presumes a child born within 300 days after the date of a divorce is the child of the mother’s ex-husband. Allowing a woman to remarry shortly after divorce and her giving birth would mean that these presumptions would conflict. That is why an issue
between the father and child’s relations may arise.96
What is Japanese reasoning for Article 733 Japanese Civil Code? In 1995 a case was brought before the Japanese Supreme concerning Article 733 by a couple who had their marriage registration rejected because of Article 733 in 1988. The woman had children from her previous marriage, and she wanted her new husband to adopt her children from that marriage but because of the 6 month rule they would have to wait until 1989 for their marriage to be legally recognized, meaning that the children could not be formally adopted until then. The couple tried to rely on Article 14 of the Japanese Constitution which states, “all of the people are equal under the law and there shall be no discrimination in political, economic or social
91 Yoshio Sugimoto 156 92 Civil Code Japan Article 750 93
Civil Code JapanArticle 772-773
94 Civil Code JapanArticle 733 95 Civil Code Japan Article 733 96
Matsui, Shigenori. The Constitution of Japan: a contextual analysis. Bloomsbury Publishing, 2010. Chp: The Protection of Fundamental Human Rights: Specific Rights PG 179-180
20 | P a g e relations because of race, creed, sex, social status, or family origin.”97 The Supreme Court disagreed that the six month waiting period for women to remarry was a violation of the Constitution, and thus upheld the constitutionality of Article 733. The Court said that only women are capable of becoming pregnant. If only a woman can get pregnant then the law should apply to women only because the issue only concerns women. The law remained in force as the court did not establish any violation with the Constitution.98
III.4.2 Article 733 Japanese Civil Code and CEDAW
In 1995 the Japanese Supreme Court did not see any violation between Article 733 Japanese Civil Code and Article 14 of the Constitution which dictates that all people are equal under the law. However, the CEDAW Committee has always opposed Article 733 they believe the law is “explicitly discriminatory against women and the Japanese government need to repeal it.”99 There are two provisions under the CEDAW which could be used to assess the
compatibility between Article 733 and the CEDAW which are Article 1 and 2 which read as:
Article 1
For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women of human rights.100
Article 2
States Parties undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and
97 The Constitution of Japan 1947 Chapter III Rights and Duties of the People Article 14 98 Supreme Court, 3rd Petty Bench, 5 December 1995, 1563 Hanreijibou 81
99
United Nations Convention on the Elimination of Discrimination Against Women CEDAW/C/JPN/CO/6 Distr.: General 7 August 2009 Original: English ADVANCE UNEDITED VERSION Forty-fourth session 20 July-7 August 2009 Concluding observations of the Committee on the Elimination of Discrimination against Women
100
21 | P a g e to ensure, through law and other appropriate means, the practical realization of this principle.101
Article 733 makes a distinction on the basis of sex, and this law does not aid in the practical realization of Japan condemning discrimination against women.
Japan says the main reason behind the 1947 law is because of paternity disputes. The law was established in order to determine the legal father of a child. If a prohibition period of
remarriage exists, then a situation where a question arises as to whether the father of a child born after a woman’s remarriage comes from her current husband or her ex-husband can be determined. In 1947 DNA tests did not exist so it may have been an acceptable principle at the time.102 As there was no way to determine the legal father of a child, Article 733 was enacted to help if confusion were to arise. The Japanese have said in their State Report’s that determining the paternity of the child at an early stage is necessary, thus, giving the law reasonable grounds.103 However, modern technology has given us DNA tests. If the reason to the law is related to a paternity dispute to establish the father of the child the Japanese
government could use this method, making this argument illegitimate.104 Moreover, it is not impossible that a wife has committed adultery during the marriage, solving paternal disputes in this manner will not always be right to prove the correct father of a child.105
Japan tried to put a legitimate aim behind the law by saying it is necessary to in order to establish the legally presumed father of the child early on in the child’s life. However, the CEDAW Committee has shown no indication that this is a legitimate argument for a differentiation made between men and women. The CEDAW Committee continually expresses in the LOIs, that it is concerned about the law as it is discriminatory without
elaborating on why they believe this, and ask Japan to repeal it. 106 One can conclude that the
101 CEDAW Article 2 102
J. Sean Curtin (Professor Cross university , Social Trends: Series #12 Inequality in Japanese Marriage and Divorce Laws in 2002.) Global Communication Platform Japan PG 1 http://www.glocom.org 10/21/2002
103 UN Committee on the Elimination of Discrimination Against Women (CEDAW),Consideration of reports
submitted by States parties under article 18 of the Convention, Seventh and eighth periodic reports of States parties due in 2014 : Japan, 16 September 2014, CEDAW/C/JPN/7-8, available at:
http://www.refworld.org/docid/56a885564.html [accessed 8 July 2016] para 385
104 J. Sean Curtin, 1
105 The Library of Congress Website(Heisei 25 (Ju) 233 (S. Ct., July 17, 2014) & Heisei 24 (Ju) 1402 (S. Ct.,
July 17, 2014)
106
United Nations CEDAW/C/JPN/Q/6 Convention on the Elimination of All Forms of Discrimination against Women Distr.: General 1 December 2008 Original: English Committee on the Elimination of Discrimination against Women Pre-session working group Forty-fourth session 20 July-7 August 2009 List of issues and questions with regard to the consideration of periodic reports Japan para 28
22 | P a g e Committee believes the law makes an unjustifiable distinction between men and women. State Parties cannot do this under the CEDAW; this is what gives rise to an incompatibility between Article 733 and the CEDAW.
In 2015 the Japanese Supreme Court came to a decision on a case that was launched in 2011 regarding Article 733. In the ruling the Supreme Court stated, that there is no confusion related to paternity 100 days after a divorce because if a child is born after 200 days of marriage, the husband is presumed to be the father under the same article 772. There is no overlapping presumption of paternity of a child whose mother remarries 100 days after a divorce. The Supreme Court held that the six-month waiting period for remarriage is too long but not discriminatory.107 The waiting period was shortened to 100 days by the Japanese government on 01/06/2016.108 Since Article 733 still makes a distinction between men and women the CEDAW Committee still wants it repealed.109
Article 733 is incompatible with the CEDAW de jure, but there are two interesting points to be made de facto about Article 733. After the introduction of the Constitution the Civil Code was changed in order to encompass equality. However, Article 733 demonstrates that equality of the sexes does not exist, as the law continues to recognise sexual differences and places greater authority in the hands of the male member of the family unit.110 Moreover, Article 772 requires a baby born within 300 days of a divorce to be entered into the Koseki of the head of the household which is usually the ex-husband regardless as to whether he is the biological father. Consequently, the Koseki system has the practical effect of deterring women from divorce, and preserves the male advantages of patriarchal order and protects the household system in a fundamental way.111
III.5.0 Article 750 Japanese Civil Code
Article 750 Japanese Civil Code reads as follows:
107(2013 (o) No. 1079 (Dec. 16, 2015), COURTS.GO.JP Library of Congress Website
108 Global legal Monitor Japan: New Instructions Allow Women to Remarry 100 Days After Divorce Sayuri
Umeda February 26 2016 http://www.loc.gov/law/foreign-news/article/japan-new-instructions-allow-women-to-remarry-100-days-after-divorce/
109 CEDAW/C/JPN/CO/7-8 para 13 (a) 110
Goodman, Carl F. The rule of law in Japan: a comparative analysis. Kluwer law international, 2008. PG 129
111
23 | P a g e A husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage.112
The CEDAW Committee has repeatedly called for Japan to allow for the choice of surnames for married couples. 113 Japan is only one of few industrialised nations where it remains illegal for married couples to have different surnames. The law is highly contended because 96% of the time a woman will change her premarital surname to her husband’s upon
marriage, even though they are not obliged to. This is why the CEDAW Committee has deemed the law discriminatory, and has asked for its repeal.114 The problem with the law is de facto because de jure the law does not oblige women to change their name.
The issue of changing ones family name to that of to their spouse’s family name upon
marriage has a significant impact on everyday life in Japan. In Japan one’s surname is used in work situations and public life, the family name is used almost exclusively. Only when in the presence of close friends and family the first name of the spouse that changes their name will be used. When outside the presence of such people the surname of that person will be used. If the married couples decide to follow tradition then it will usually be the woman that changes her name.115
In 1988 a law suit came before the Tokyo District Court concerning Article 750, the plaintiff was a female professor at a Japanese national university who had been using her premarital name. The university authority required her to use her martial surname as taken under Article 750 Japanese Civil Code. The professor relied on Article 12 (protection of privacy) of the Universal Declaration of Human Rights, Article 1 (the right of self-determination) of the International Covenant on Civil and Political Rights (ICCPR), Articles 13 (the right to pursue happiness), and 21 (freedom of expression) of the Japanese Constitution. The female
professor argued that she had the right to use her professionally established premarital surname, based on those provisions. The Tokyo District Court disagreed with the professor; they held that it was indispensable for the Government to identify its employees by their name that is registered under the Koseki system. Article 750 was constitutional and it was
112
Civil Code JapanArticle 750
113 CEDAW/C/JPN/CO/7-8 para 13 (a) 114 CEDAW/C/JPN/CO/7-8
115
Beauchamp, Edward R. Japanese society since 1945. Vol. 2. Taylor & Francis, 1998. Chp. By any other name: marriage and names in contemporary Japan – Tessa Carroll 1996 PG 132
24 | P a g e practical in reinforcing the sense of unity between husband and wife.116 Additionally, the Court stated, the law was not incompatible with the Universal Declaration of the Human rights or the Civil Rights Convention, the Court did not elaborate on this.117 This is true because the law does not expressly stipulate that women have to change their surname to that of their husband upon marriage. The issue with the law is one of practice, which is the
practice of gender specific roles in Japan.118
In 2015 the Japanese Supreme Court came to another decision concerning Article 750. People still believe that the law amounts to gender discrimination even if the law does not expressly oblige a woman to change her name, because “being forced to choose a single surname infringes on personal dignity and the freedom to marry.”119
In the 1988 case concerning Article 750 the professor did not use Article 14 Japanese Constitution (equality for all under the law) as a ground for the rights she believed she was owed. In the 2015 case Article 14 was used and the Japanese Supreme Court said that it is up to the marrying couple to decide which family name will be adopted; therefore, there was no inequality or discrimination. However, when the Court discussed Article 24 of the Constitution they seemed to accept Article 750 has disadvantages. Articles 24 (2) of the Constitution reads as:
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.120
The Court accepted that under this provision it was not enough that the language of the law does not violate the principle of gender equality. The Court stated, that the law must respect the dignity of the person, and take into account the provisions of substantial equality between the genders, and effectively seek not to place undue constraints on the formation of
marriages. The Court found that the same-name system has been well established and
116 (The Tokyo District Court, Showa 63 (WA)No. 16648/ The judgment of the Tokyo District Court, 19
November 1993 (Hanreijho, No. 1486 p.21)
117 Junko Torii, 264 118 Anne E. lmamura . 1 119
Tomohiro Osaki. Japan's top court upholds same-name rule for married couples, overturns remarriage moratorium for women by The Japan Times News December 16 2015
http://www.japantimes.co.jp/news/2015/12/16/national/crime-legal/japans-top-court-strikes-rules-divorcee-remarriage/
120
25 | P a g e accepted by Japanese society and that there is merit in the adoption of such a system. The Court, however, found a problem with the system in that one member of a couple must change his or her surname.
There are disadvantages for the one who changes the name, e.g. a feeling of a loss of identity and loss of a reputation that has been earned under a different name. Also, given that 96% of married couples in the last 40 years have chosen the husbands’ family name, women almost always are the ones who deal with those disadvantages. In some cases, the Court found that couples avoid legal marriage just to sidestep such problems. However, the Court did not find the provision unconstitutional and noted that it is a widespread practice in society in recent years for women to keep using their maiden names in certain professional or social situations. This practice has eased the disadvantages of the same-name-system. Therefore, overall, the system does not violate the Constitution, the Court held.121
The Court acknowledged the disadvantage for the female spouse that has to change her name upon marriage. Though, this did not mean that it was enough for the Court to conclude that the law was unconstitutional, and the law is still applicable in Japan.
III.5.1 Article 750 Japanese Civil Code and CEDAW
As previously established the issue that exists between the CEDAW and Article 750 is of practice, it is not a problem that exists de jure in the law. The law does not make an express distinction in the law between women and men putting women at a disadvantage to men, the requirement of the law is that married couples have to adopt the same surname.122
Previously it has been mentioned that upon marriage 96% of women will change their surname to their husbands surname upon marriage. This figure does not, however,
automatically render article 750 incompatible with the CEDAW, it is not impossible that the 96% of women who do change their surname want to change their surname. However, if that were to be the case the law would not be so contentious among women’s human rights
121 Case No. 2014 (o) 1023 (Dec. 16, 2015) Heisei 26 years Event to claim damages Dafa Ting judgment (Japan:
Supreme Court States Family Name System Constitutional Library of Congress Website
122
26 | P a g e activists in Japan and the CEDAW Committee. It is possible that among the 96% of the women that change their surname, a certain percentage of them do want to change their surname to their husbands surname upon marriage. However, the remaining percentage that does not want to change their surname but still has changed their surname could be ‘victims’ of the traditional beliefs of the Japanese ‘House System.’ If in reality women in Japanese society are still bound by the traditions of the House System this would create a conflict with Article 5 (a) (see above 2.5) and 16 (1) (g) CEDAW, which states:
Article 16(1) (g)
(1) States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation.123
The ‘House System’ needs to be understood, as the system can be held responsible for the stereotypical gender roles in Japan. It is also capable of having the effect of denying women the practical right to choose a family name as they should be guaranteed under the CEDAW.
III.5.2 The Japanese House System
The House system first came to life in the Tokugawa period (1603-1868) the house was defined as having a head of house, which was the male member of the family; this male lived with his spouse and other certain other relatives and the family was never formally registered under Japanese law during the Tokugawa period. That changed during the Meiji period (1868-1912) which is considered the beginning of a modern and less isolated Japan, the ‘House’ was registered for the first time, this became known as ‘Household Register Law’ in 1871. In order for a house to be given legal recognition it had to be registered under the Household Register. This included obtaining information such as, the number of households in one district, the number of house members, including date of birth and date of deaths.124
123 CEDAW Article 16 (1) (g) 124
27 | P a g e The household was the basis of information on the household, the Household Register
required each household to choose a head of the house; this person had a variety of duties and rights. During the Meiji period only a male could be the head of the household because the house was perpetrated in the paternal line.125 What this meant for the rest of the members of the family was that the head of the house controlled all the household assets and they were only allowed to use the assets with the permission of the head. Additionally, the rest of the members of the house had to change their surname to that of the household head if they were registered as a member of the family under the Household Register. This meant if the head changed their surname then the rest of the members would have to change it too.126
The family or household has long been the basic unit of Japanese society. Marriage was not a case of individuals deciding to spend their lives together, but rather of family alliances, hence the prevalence of arranged marriages. A woman getting married was not a case of her
becoming a possession of her husband, but rather that she exchanged her identity as part of one family for that of another.127
The House system had a strict hierarchical structure, which was a male dominated as the head of the family was meant to be the eldest son of the family. The reason why the structure is described as male dominated is because it was only men who could be the head of the house. Being the head was more than controlling the assets and having the rest of the members change their surname to their own. It also meant the other members of the family were unified spiritually under the absolute head of the family. Under the Household Register the head was greatly admired, and sacrifice made for him and other superior members of the family was an exceedingly admired virtue.128 The head of the household was like a great being, an authoritative figure that every other member of the house was subject to.
With the introduction of the Japanese Constitution in 1947 which guarantees equality for all people the House system was removed from Japanese law. There is no longer a requirement for a male to be appointed as the head of the household as the whole Family Registration Law
125Röhl, Wilhelm, 269. 126 Yoshio Sugimoto, 157 127 Beauchamp, Edward R, 122 128 Junko Torii, 258
28 | P a g e in Japan went under great reform in 1947.129 The Koseki system still requires each household to appoint a head of house the difference now is that it can either be the female of the male.130
In present day Japan women have a lot more freedom to make decisions concerning their own future, and the role of husband and wife or father and mother are no longer dictated by law.131 However, with all the reforms that Japanese family law went through, Article 750 is seen as not as certifying true equality for women, and it is believed that Article 750 serves for the survival of the old house system because of the fact that 96% of women do not keep their premarital surname. In Japan gender based division is still prevalent and although the husband and wife roles are no longer dictated by law, in general society husbands are still seen as the principal wage earners and women as housewives. As the perceived ‘principal wage earner’ men will generally be deemed the head of the household.132
This means when the Koseki system requires a head of the household it is already effectively going to be the male because he will be seen as the person who can look after the household which is the job of the head of the household. In effect meaning even though Article 750 gives the husband and wife choice of who will give up their premarital name, the reality is that the choice is limited. Japanese culture still holds onto the beliefs of male dominance from the House system from the Meiji period meaning a woman is compelled rather than willing to change her surname upon marriage.133
In Japanese society for majority of women getting married would mean entering the family of the husband, this view or this kind of dialect is deeply cemented in Japanese society. The Japanese Supreme Court would like to reassert that there is a choice of which spouses surname will be adopted the truth is that the law greatly contributes to the kind of cultural understanding of what the family is meant to be like and why in Japan marriage is seen as the husbands family receiving a bride.134 The Supreme Court in the 2015 case concerning Article 750 said that in certain professional or social situations then the premarital surname may be
129
Bestor, Victoria, Theodore C. Bestor, and Akiko Yamagata, eds. Routledge handbook of Japanese culture
and society. Taylor & Francis, 2011. Chapter Social Foundatior PG 86
130 Yoshio Sugimoto 156
131 Japan home – Japan Communication Within Family Context Section: Contemporary Japanese Families (post-
World War II) para 1
http://acad.depauw.edu/~mkfinney/teaching/Com227/culturalportfolios/japan/familycontexts.htm
132 Anne E. lmamura. 1 133 Junko Torii, 260 134
Shin, Ki-young. "Personal is the Political: Women's Surname Change in Japan, The." J. Korean L. 8 (2008): 161. Pg 170
29 | P a g e used.135 This seems untrue, because in the 1995 case where the professor wanted to use her premarital surname at her work place this was not allowed.136
If a woman wants to keep her premarital surname after formally taking her husband’s surname upon marriage she would either have to have two separate names and decide what occasions she would use the names for, or she would just avoid marriage and cohabit.137 If a woman were to use two separate names it could have negative implications. In these
situations a woman may be subject to harassment from her employer, she may have her documents denied by passport officials and she will only be able to access her health insurance through her surname registered under the Koseki register. 138 In regard to option two a couple should not have to opt for cohabiting or an unregistered marriage just to avoid a legal rule. Also, if the couple were to have children this would create trouble for the child because of discrimination against illegitimate children in Japan.139
Article 5 (a) and 16 (1) (g) CEDAW will be considered again in light of the influences of the House system in Japan. Previously it was mentioned that the House system could be capable of denying women the practical right that they are owed under Article 16 (1) (g) CEDAW. After now understanding what the House system is and knowing the gender roles that it enforced, it can be said that because Japan is still a society where gender roles are ever present. Japan still has strong cultural beliefs that women should not be the head of a
household because they are not the wage earners like men. In addition women face a struggle if they try to have two different surnames upon marriage for example discrimination, or they have to resort to having an unregistered marriage. Therefore, it can be concluded that in practice women do not have the practical right to retain their surname upon marriage under Article this is contrary to Article 16(1) (g) CEDAW.
In relation to Article 5, the CEDAW Committee repeatedly state that they are, “concerned about the persistence of deeply rooted and rigid stereotypes in Japan regarding the role and
135 Case No. 2014 (o) 1023 (Dec. 16, 2015) Heisei 26 years Event to claim damages Dafa Ting judgment
Library of Congress Website
136 (The Tokyo District Court, Showa 63 (WA)No. 16648/ The judgment of the Tokyo District Court, 19
November 1993 (Hanreijho, No. 1486 p.21) Library of Congress Website
137Shin, Ki-young, 171
138White, Merry I. Perfectly Japanese: Making families in an era of upheaval. Vol. 14. Uniy of California Press, 2002. pg 92-93
139
30 | P a g e responsibilities of women and men in the family and in society.”140
The Committee has never mentioned the House system, though, it can be concluded that the House system contributes to the ‘deeply rooted’ gender roles in Japan. The Japanese government have tried to erase these gender perspectives from the general public via public awareness. Additionally, they have also tried to eliminate career obstacles that women face if they try to keep their surname after marriage.141 However, the public awareness campaign has not done enough to eradicate the gender specific roles nor has it done enough to convince the CEDAW Committee that Article 750 is not incompatible with the CEDAW.
To summarize, Article 733 and 750 Japanese Civil are both incompatible with the CEDAW. Article 733 is incompatible because the Japanese Government has made an unjustifiable distinction between men and women. Article 750 is incompatible with the CEDAW because the gender stereotypes that the Japanese House system left behind it has the effect of denying women the right to choose their family name upon marriage which is contrary to the
CEDAW.
140 UN Committee on the Elimination of Discrimination Against Women (CEDAW),Report of the UN
Committee on the Elimination of Discrimination against Women, Twenty-eighth Session (13-31 January 2003), Twenty-ninth Session (30 June-18 July 2003), 18 August 2003, A/58/38, available at:
http://www.refworld.org/docid/4176705e4.html [accessed 8 July 2016] para 359
141 UN Committee on the Elimination of Discrimination Against Women (CEDAW),Consideration of reports
submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women : 6th periodic report of States Parties : Japan, 8 September 2008, CEDAW/C/JPN/6, available at: http://www.refworld.org/docid/491aaf462.html [accessed 8 July 2016] para 393
