Found this special contribution by Shane Clarke on wordpress.com, 9-2-09 : http://leejaywalker.wordpress.com/2009/09/02/international-community-sits-back-as-japan-steals-children/ Lee Jay Walker INTERNATIONAL COMMUNITY sits back as JAPAN steals children International Community Sits Back as Japan Steals ChildrenSpecial ContributionBy Shane Clarke - THE SEOUL TIMES
According to the Childrens’ Rights Council of Japan (http://www.crcjapan.com
) more than 20,000 children have been abducted to Japan under its policy of state-sanctioned kidnapping. By all accounts, the majority of these children are denied any kind of access whatsoever to their left-behind, non-Japanese parent.
This denial is a direct violation of their human rights as established by the UN Convention on the Rights of the Child. Article 8.1 of the Convention states that parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
Article 8.2 states, “Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
Article 9.3 states, “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
Article 11.1 states, “States Parties shall take measures to combat the illicit transfer and non-return of children abroad.”
Finally, Article 11.2 states, “To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.”
Japan ratified this convention in 1994, bringing upon itself a legal obligation to uphold childrens’ rights as prescribed in the aforementioned Articles. In April 2008, the Japanese Ministry of Foreign Affairs released their third report on the Convention, boasting how they had altered their civil and criminal laws to bring them into line with the Convention. However, that is, unfortunately, where the story ends, as far as Japan is concerned.
To date, Japan has consistently violated the Articles in this Convention, and refused to enforce the laws established by its ratification in favour of foreign nationals. It protects and supports those who violate childrens’ human rights, in direct violation of the Convention, hiding behind false smiles and ludicrous claims of doing what’s best for the children concerned. How can denying a child access to one of its parents ever be in his or her best interest, unless that parent is Joseph Fritzl?
So, where is the UN in all of this? Where is that organisation established to maintain peace and security and to protect human rights throughout the world?
The UN are fully aware of the situation regarding Japan and international parental child abduction. They are fully aware of Japan’s consistent abuse of childrens’ human rights, in direct contravention of their Convention. So, why are they not stamping their feet and demanding that Japan fulfil its obligations? Why are they not bringing Japan before the UN Court of Human Rights to try to explain themselves?
Then there is the International Court of Justice. This is supposedly a place where one state can bring an action against another if it feels this other state has committed a crime under international law. So, why has no state brought an action against Japan on the child abduction and human rights violation issues? Again, answers on a postcard to the address above, please.
The International Law Commission has produced guidelines for establishing state responsibility, and Japan falls into a number of the prescribed categories.
Article 1 of the ILC Draft Articles states that “every internationally wrongful act of a State entails the international responsibility of that State.”
Article 3 states that this responsibility cannot be avoided simply by reason of the fact that the act is lawful under internal law.
Obligations may be derived from treaties or Conventions, as shown in the case Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Responsibility can also arise from the ill-treatment of nationals from a foreign state. It can be argued that the abducted children whose rights are being abused by Japan are nationals from a foreign state. Their left-behind parents usually are, and Japan’s denial of a fair hearing for these parents must surely qualify as ill-treatment.
It certainly violates Article 9.2 of the UN Convention on the Rights of the Child, which states that in any proceedings pursuant to Article 9.1, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
The ILC’s Draft Article 4 makes the state responsible for the activities of all its organs, including its police and judiciary. An example of this is Paraguay v USA. It should also be noted that these organs’ acts are still attributable to the state even if they have exceeded their powers under national law.
Moving on to the abductors themselves, under normal circumstances, a state cannot be held responsible under international law for acts committed by private individuals. However, state responsibility can arise if the state fails to fulfil one of its own duties arising in connection with the non-attributable act, as illustrated in the case of the Janes Claim, where Mexico was held responsible not for the death of Janes, but for failing to apprehend and punish the individuals responsible.
Japanese individuals are committing crimes against foreign nationals across the globe. Japan has an obligation under the UNCRC to punish those individuals. By refusing to do so, they are incurring state responsibility. So, I invite those people we entrust with protecting our rights around the world to explain to the victims of parental child abduction – both parents and children – why they continue to allow it to happen.
Like the candy house in the Hansel and Gretel fairytale, Japan displays a façade of sweetness for all to see. However, inside lies a nasty, dirty secret waiting to entrap any innocent who has the misfortune to step inside: A witch, who will cage and then eat any who fall within her grasp. Isn’t it time an international Hansel came along and pushed this witch into the oven and destroyed her, or must we continue to watch as she consumes more innocent lives?
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