THE OTARU LAWSUIT
REPORT: THE WHOS, WHATS, WHYS, AND RIPPLES
(made public to several mailing lists Feb 5, 2001)
As you may have read in the press already, on February 1, 2001, three people filed
papers in the Sapporo District Court announcing their intention to sue Otaru's Yunohana
Onsen, a family bathhouse which until recently unconditionally refused entry to all
foreign-looking people, and the City of Otaru, which has let this sort of thing happen
within its jurisdiction since 1994, on the grounds of racial discrimination (jinshu
sabetsu) and violation of the UN Convention against
Racial Discrimination. Our papers were accepted by the authorities and the
case is on. The first hearing will probably be in about six weeks. I'll keep you
posted.
Meanwhile, this report is to tell you about the case, why we are doing all this,
and reactions to it so far. Organized thusly:
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WHAT ARE WE DOING?
WHY ARE WE DOING THIS?
REACTIONS SO FAR
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WHAT ARE WE DOING?
First, who are "we"? The abovementioned three plaintiffs, suing as individuals,
are Olaf Karthaus, of German nationality, who
was refused entry at Yunohana on Sept 19, 1999; Ken
Sutherland, American, refused entry in July 1999 and again at Yunohana Dec 23,
2001; and yours truly, Arudou Debito, naturalized
Japanese, refused as an American at Yunohana Sept 19, 1999 and as a Japanese citizen
on Oct 31, 2000. Our lawyer is Itou Hideko, former elected politician to the Japanese
Diet and practicing lawyer for 23 years, who is famous for taking on court cases
involving underdogs (most recently, that of a woman accused of murder under circumstantial
evidence by police trying to do some quick Sherlocking). She is one of the most prominent
lawyers in Hokkaido and we are very fortunate to have her.
We are suing Yunohana for 1) violation of Article 14 of the Japanese Constitution
(which says that all people/citizens are equal before the law; a pedantic judge may
try to split hairs about foreigners' rights, but denying entry to a Japanese citizen
expressly for foreign features is incontrovertibly illegal), 2) violation of the
UN Convention on the Elimination of All Forms of Racial Disrcrimination (CERD, which
applies here, according to a Shizuoka District Court ruling on the Ana Bortz Case
of 1999, because international law applies when there is no domestic law covering
the situation; Japan happens to be the only OECD country without a domestic law against
racial discrimination). Although claims may be made that nationality, not race, is
the factor here (ergo the signs saying "Japanese Only"), in practice, even
setting aside my documented refusal as a Japanese citizen, Yunohana's permitting
entry to a Chinese member of our group on Sept 19, 1999, and indicating during the
same visit that they would refuse my more Causasian-looking Japanese daughter once
she got older, demonstrates that phenotypical appearance, particularly if the customer
happens to look racially non-Japanese, is the actual basis for permission. Full background
at http://www.debito.org/lawsuitbackground.html
and http://www.debito.org/photosubstantiation.html
Now for the bit that people may chafe about: financial restitution. We are suing
for emotional distress (seishin kutsuu--I know this sounds hokey, but under Japanese
Civil Court law we can only sue for two types of damages--emotional and property;
since we did not have any concrete property damage (Yunohana refunded our money)
this is the only alternative). We are asking for 2,000,000 yen times three plaintiffs
total 6,000,000 yen damages (this is not an inordinate amount of money, since a woman tripped up by a dog was awarded 19,000,000 yen
for facial paralysis in a 2002 court decision) plus court costs. We are also asking
for a public apology for racial discrimination from Yunohana, to be published in
a morning edition of Hokkaido Shinbun. And all three of us have firmly agreed that
we shall not settle this case out of court--as we all feel it is necessary to establish
a judicial precedent a la the Ana Bortz case of 1999; we shall take this all the
way to a judicial decision (hanketsu).
We are also including the City of Otaru as a defendant in this lawsuit. This may
raise questions as to their responsibility in this case, but aim and intention will
become clear as we look at motivation.
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WHY ARE WE DOING THIS?
From the above statements and after a quick read of information links, I think it
will become pretty clear why we are suing Yunohana: They are the onsen which from
day one has unconditionally refused people by appearance, not behavior, and have
always refused to attend any negotiation to reach a resolution. So let's move on
to the City's responsibility, since that is the more complicated case we must make:
Our case is that Otaru's negligence towards Yunohana and other cases of foreign exclusionary
practices within its confines is in violation of the CERD (which may be found in
its entirety at http://www.issho.org/BENCI/intlconvention.html). I hate to quote
snippets of treaty in an essay, but the clarity of its pronouncements matters:
PERTINENT BITS OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION:
(Ratified (hijun) by Japan Nov 1995, Officially inaugurated (hakkou) Jan 14, 1996)
Article 1
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour, descent,
or national or ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field
of public life.
Article 2
1. States Parties condemn racial discrimination and undertake to pursue BY ALL APPROPRIATE
MEANS AND WITHOUT DELAY [all block caps here and hereinafter are my emphasis added]
a policy of eliminating racial discrimination in all its forms and promoting understanding
among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination
against persons, groups of persons or institutions and to ensure that all public
authorities and public institutions, NATIONAL AND LOCAL, shall act in conformity
with this obligation;
(d) Each State Party shall prohibit and bring to an end, BY ALL APPROPRIATE MEANS,
INCLUDING LEGISLATION AS REQUIRED BY CIRCUMSTANCES, racial discrimination by any
persons, group or organization;
2. States Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, SPECIAL AND CONCRETE MEASURES to ensure the
adequate development and protection of certain racial groups or individuals belonging
to them, for the purpose of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms.
Article 5
In compliance with the fundamental obligations laid down in Article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all
its forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights:
(f) The right of access to any place or service intended for use by the general public,
such as transport, hotels, restaurants, cafes, theatres and parks. [NB: This includes
private-sector businesses.]
Article 6
States Parties shall assure to EVERYONE WITHIN THEIR JURISDICTION EFFECTIVE PROTECTION
AND REMEDIES, through the competent national tribunals AND OTHER STATE INSTITUTIONS,
against any acts of racial discrimination which violate his human rights and fundamental
freedoms contrary to this Convention, as well as the right to seek from such tribunals
just and adequate reparation or satisfaction for any damage suffered as a result
of such discrimination.
CERD EXCERPT ENDS
Once our lawyer read it and saw what Otaru as the local public authority has not
been doing, she said we had a case.
But hasn't Otaru been taking measures against exclusionary establishments? Yes, but
insufficiently, if you look closely. As I said above, Otaru has had a bathhouse (Osupa)
which excluded all foreigners from 1994, and other onsens followed suit (Panorama
of and on until 1999, Yunohana from 1998). When we heard about a number of exclusions
in the summer of 1999, we sent letters to the City asking for some resolution. Their
answer? In general: "They're a private-sector facility, so it's difficult...
so please wait a little longer" ("aite ga minkan shisetsu de aru tame muzukashii
mono ga arimasu...mou sukoshi omachi itadakitai to omoimasu": Takeuchi Kazuho,
Otaru Kokusai Kouryuu Tantou, in an email made public with permission to Issho Kikaku
dated Sept 10, 1999). This after essentially a wait of several years already. This
administrative delay is one reason why we came to confirm things in September 1999.
The point is that despite five years of clear and spreading Otaru exclusions, only
when the Japanese press were brought into it were any City-level measures taken,
including a list of bathing rules in Russian, Japanese, and English, photocopies
of multilingual warning notices to explain, "you are causing a disturbance",
"please leave" etc in case of communication breakdowns, and a bathing-rules
pamphlet distributed to Russian ships at dockside. They also launched a 24-hour "hotline"
in case of problems.
However, the CERD calls for "effective protection", using "all appropriate
means, including legislation as required by circumstances". This is where Otaru
City becomes culpable.
First, the effectiveness of the City's actions is questionable. Certainly in terms
of follow-through. Two of the exclusionary onsens in 1999 (Yunohana and Osupa) refused
to display the city's multilingual rules, or to comply with city suggestions on how
to run a less exclusionary business. End of discussion. Also, as was noted in Hokkaido
Shinbun on Oct 27, 2000 (http://www.debito.org/doshin102700one.jpg)
and (http://www.debito.org/doshin102700two.jpg)
the city only made 4000 of those Russian dockside pamphlets (hardly enough for a
city which receives 30,000 Russian visitors per year) and distributed them on only
one occasion, in Nov 1999.
Most ineffective of all, I found out when I called Takeuchi Kazuho, head of the City's
International Relations Division, on January 29, 2001 (the day before we decided
to sue the City as well), the "hotline" is Potemkin indeed. When I asked
for the hotline number, I learned that there is no one phone number and it is not
public access. If there is a problem during working hours, the aggrieved are to call
City Hall, same as usual. If there is an off-hours problem, the aggrieved have been
given individual cellphone numbers of the International Relations Division. And who
are deemed the aggreived? Former full-excluders Onsen Osupa and Panorama (Yunohana
refused to participate as they would continue refusing foreigners anyway) were the
only ones to receive the cellphone numbers. Hence there is no 24-hour system in place
for other situations where problems might arise, such as with taxi driving companies,
restaurants, or with customers excluded, because, as I was told by the City, "we
are a very small staff and would not be able to deal with all the calls". So
this system is in place for a very select group of businesses, i.e. those with a
history of discrimination, and it is limited by its own anticipation of being ineffective.
Second, the more incriminating evidence comes under "all appropriate means...".
Our case is that the City of Otaru has not done enough to resolve the problem.
Initial signs of this came in Oct and Nov 1999,
when the city indicated that it would sponsor three meetings of international groups
(Kokusai Kouryuu Kanren Dantai Renraku Kaigi) to come up with solutions, on Oct 26
and Nov 5, 1999. When we (Olaf and I) were working within human rights group Issho
Kikaku, we asked a few days before each of the first two meetings if we could
attend (Oct 23 and Nov 2, respectively). In both circumstances, we were refused entry
by Mr Miura of the International Relations Division (although the discriminatory
onsens were invited to the second meeting). Consequently at both meetings not a single
non-Japanese was present (ironic, since they would be deliberating on policy which
would affect non-Japanese residents as well). Although we were promised entry to
the third meeting, that meeting was abruptly cancelled as "unnecessary"
(: Mr Miura). We heard of no more meetings after that, and it wasn't until March
1, 2000, when we were invited (with less than 24 hours' notice) to a different deliberatory
meeting by city groups. Olaf and I made some suggestions, but to this day we have
neither heard any feedback nor have been invited back to any more meetings. How an
appropriate means of resolution can be achieved without sufficient input of those
being discriminated against is beyond my understanding.
But let's be more objective. Since 1999, the City has consistently refused to sponsor
any citywide forum, open to the general public, to deliberate on and discuss solutions
to this problem (the Otaru University of Commerce had to sponsor a public forum which
we attended on Jan 31, 2000, and Hokkaido Shinbun also sponsored a city-onsens-foreigners
roundtable which I attended on Feb 21, 2000; at both events Onsen Yunohana refused
to attend). As Hokkaido Shinbun reported on Oct 27, 2000, the City proposed a regular
human-rights forum (jinken mondai konwakai) for Aug 2000 and then dropped it (tana
age no mama). The City has also refused to even *draft* any local anti-discrimination
ordinance (jourei), which it is within its powers to do. (That was left up to us
at Issho Kikaku when we, with the cooperation of other human rights activists and
grouips, submitted a petition (chinjou) on Jan 13, 2000. From April 2000 it has been
stuck in "deliberation mode" (keizoku shinsa) in committee. According to
sources within City Hall, it will become null and void if left unpassed by the next
city election.)
In my individual opinion, once the press's attention grew lighter, the City tried
to let sleeping dogs lie and hope the situation would resolve itself with as little
proaction on their part as possible. And with that precedent, similar anti-discrimination
petitions, submitted by Issho Kikaku in Aug 2000, to other Hokkaido cities with clear
exclusionary businesses (Monbetsu City and Wakkanai) were *rejected* for even consideration
by city committees (see http://www.issho.org/exclusion-cerdreport.html).
As Otaru is the epicenter with the longest-running clear-and-present exclusionary
policies, is held up in Hokkaido as an exemplary tourist area and international port,
and has been used as justification by exclusionary businesses defending their discriminatory
practices, we decided to hold the City of Otaru responsible for negligence and nonconformity
with international treaty. Over the course of seven years (five, since Japan ratified
the CERD, and about a year and four months since we took this to the press), Otaru's
inactivity is in particular in violation of the CERD clause of "by all appropriate
means and without delay."
Consequently, our case is unprecedented in Hokkaido--the first of a Japanese government
organ being sued by individuals for racial discrimination under international treaty.
Our case will make clear whether Japan is willing to keep its international treaty
promises and is ready for a seat on the UN Security Council.
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REACTIONS SO FAR
Speaking from the news angle, coverage has been quite comprehensive. So far, we have
been covered by all the local TV networks (to wit: HBC, STV, UHB, TVH, HTB, and NHK,
and by extension TV Asahi, BBC, and others filtering in over time), print (interviews
and articles with Hokkaido Shinbun, Asahi and its Evening News, Yomiuri and its English
branch, Mainichi and its Daily News, Jiji, Kyodo, Reuters, Sydney Morning Herald,
NY Times, Playboy (Japanese weekly), Shukan Bunshun, and more), as well as a live
broadcast interview with Tokyo Bunka Housou. Our Feb 1 press conference was quite
enjoyable, and the articles and editorials which came out have been really quite
positive.
Interpersonally, it has also been remarkably positive, believe it or not. At my university,
almost all the teachers who've felt the need to bring this up with me expressed regrets
that it had to be taken to court, but understood that there is no other alternative--given
all the legwork both we with many human rights activists and group have done to raise
public awareness, and to appeal to every other division of the administrative and
legislative branches (activities our sensei know about because of the hitherto assiduous
vernacular press coverage). My friends in town even said, "What took you so
long to sue?". At Olaf's university the reaction was much the same as at mine,
with the president being unconditionally supportive. Two of our wives initially expressed
some reservation, but now have thrown their full support behind our case, even including
the City as defendant. Even my father-in-law, who as a former Imperial Army soldier
is one of the most conservative people and deferent to authority I've ever met, said
to my fence-sitting mother-in-law, "Hey, shaddappa you face. We're doing this
for Anna-chan (my more Western-looking daughter). You should be suing for even more
money!"
Of course, not all is roses. I personally get around three calls a day on private
phone lines from people who want to vent their anger, lecturing me in how Japanese
people do not sue (utter tosh), how Japanese follow the rules when they are overseas
(we defendants are not tourists), how if Yunohana loses their case then their businesses
will have to open their doors to Russians and yakuza (even though these restaurateurs
who called admitted when asked that they don't refuse those people anyway). One veternarian
even sent me a letter--I'm not making this up--describing how Japanese as kangun
have a long history of washing their asses before they get in the bath and therefore,
er, foreigners don't (great use of the scientific method--good thing his medical
licence doesn't enable him to practice on me). When I gather that they are not in
listening mode, I ask them to send their opinions via my lawyer (hardly any of them
do). But then some are not out to listen anyway. Last Friday night, as I was recovering
from a very nasty stomach flu, a man called me specially to say he was going to come
find me (anta no iru basho ni zettai ni iku yo). Sigh. If the camel doesn't get you
then the driver must. (Addendum: I got a death threat
against my children on Feb 6, 2001.) Such is the life of the social activist.
The most mixed signals have come from the non-Japanese community. Although there
is much support for our drive out there, some sharp criticisms have emerged: Some
members of internet mailing lists have argued that this is a step too far (but I
would hope that some research at our sources will demonstrate that we have tried
all the other steps), that it's only an onsen (just like Rosa Parks' complaint was
only about the location of a seat on a bus), that we could have just taken our business
elsewhere (but ignoring the problem doesn't make it go away or make it any better--quite
the opposite, the record shows), that we should work to change the hearts of the
xenophobic customers rather than force legislation on them (and if everyone followed
that logic, most social maladies, including sexual discrimination, ijime bullying,
Ainu/Ryukyuan/Burakumin/ethnic Korean/Chinese discrimination, sexual harassment,
stalking, etc. would have had to wait until the perpetrators saw the light before
prohibition ensued; fortunately few activists abide by this, and as legal precedent
shows even in Japan, it is increasingly the needs of the discriminated against receiving
precedence), that we are only out for our own personal promotion (yeah, more like
that of our families, our friends, and others who live here, and who wish to live
here enjoying the full rights of every other resident as guaranteed under the Japanese
Constitution). Such is pluralism.
And from the defendants themselves? They seem, in a word, oblivious. Otaru's Mayor,
Yamada Katsumaro, was reported in Feb 2's Hokkaido Shinbun as saying, "I
don't see where we've made any legal mistakes." (doko ni mo houritsuteki na
machigai wa nai to omou)
Yunohana, as I wrote about previously, left their exclusionary policy unchanged for
years (just exchanging their photogenic red-lettered "JAPANESE ONLY" sign
for one in Japanese only on Jan 1, 2000). That is, until our intention to sue leaked
to the press on Jan 16. Then their sign was down within 24 hours, saying that they
were just about to do it unilaterally themselves (in honor of what? Martin Luther
King Jr.'s birthday?). They replaced it with Otaru City-provided bathing rules written
only in Japanese and four conditions for future foreigner entry (one years' stay
in Japan, understanding of Japanese, understanding of bathing customs, the will to
follow them and not cause a nuisance, such as by smelling funny (ishuu)), applied
only of course to foreign-looking peoples. My Permanent-Resident American friend,
who went down on Jan 21, was let in, but he had to show his Gaijin Card, sign a register
with his name, address, and phone number, and indicate that he knew how to bathe.
Yunohana's claim is that essentially they are the innocents in this case, victims
of their xenophobic customers. They told our lawyer that they had offered their previous
establishment, Green Sauna (which went bankrupt in 1998 allegedly due to too much
Russian patronage), for the City of Otaru's use. It would be run by City tax monies
and train foreigners how to take a Japanese bath (the exclusionary signs, meanwhile,
would apparently remain at Yunohana). The City refused this offer, saying that they
had no budget for it.
When I heard all this, I realized that some people really just don't get it. Putting
human rights in terms of economics makes some people feel exonerated from using common
sense--that foreigners and foreign-looking peoples are people with rights and feelings
too.
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In conclusion, let me say this: We do not take this step of litigation lightly--for
we know that in almost every case, especially in Japan, you really cannot fight City
Hall. According to my graduate studies of Japanese law, almost all cases brought
against The State here are ruled in favor of The State. But that is the risk we are
taking because the administrations of places like Otaru City, which collect taxes
yet often do not protect people effectively against social injustices, is bound by
international treaty and by the domestic Constitution to change its do-nothing stance.
However, historically speaking, this situation is not terribly unusual. Time and
time again, the textbooks show that rights are not granted unilaterally. People have
had to fight for them. Hence it is not only our right, but our obligation as residents
of Japan, to take the stance of doing something--for ultimately it is a historical
inevitability.
It's got to be done. We are willing to do it. We hope you will support us.
Arudou Debito, one Plaintiff
Sapporo
February 5, 2001
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