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Home > LAWREVS > WILJ > Vol. 16 > No. 3 (2007)

 

Washington International Law Journal

Timothy Webster

Roles

Timothy Webster translated the opinion into English.

Abstract

The Bortz case links a series of truly comparative moments. In the first, the unsuspecting foreigner crosses into another culture’s blind spot, and emerges a very different person. Ana Bortz was shopping for a necklace in a Japanese jewelry store when the owner asked her where she was from. A westerner in Japan, Bortz likely thought little of the question, having answered it many times. She answered first in Japanese, and then in English, “from Brazil.” Neither response pleased the storeowner. Foreigners, or perhaps just Brazilians, were not allowed in the store. Their ensuing argument revealed other comparative moments. Enraged by unapologetic discrimination and unsympathetic police, Bortz did what many westerners would: she threatened to sue. For the storeowner, Suzuki Takahisa, the threat seemed hyperbolic, or perhaps just odd. One does not sue over such things in Japan. But Bortz made good on her threat; she hired a lawyer, filed her claim, and eventually won damages of 1.5 million yen ($12,500) from the Suzuki family. The Japanese racial discrimination lawsuit was born. To be sure, other foreigners—Koreans, Chinese, Taiwanese, Filipinos—have experienced racism in Japan. But racism operates differently between the races. Phenotypically, Asian people experience subtler, perhaps more deeply-rooted, forms of discrimination in Japan. Resident Koreans, many of whom have lived in Japan for generations yet remain “foreigners” by law, routinely encounter discrimination in employment and education. When they sue, their claims are not framed in the language of race, but of nationality. Latin, African-American, and European-American foreigners, on the other hand, experience more overt forms of discrimination: ejection from a store, denial of entrance into a store, rejection on a housing application, being shooed away. These acts clash with notions of fundamental fairness that westerners expect in society. For the westerner, the lawsuit is the preferred method of restoring persons injured by such behavior. The challenge for Bortz was where to find relevant law. The Japanese Constitution prohibits discrimination based on race, but only for its own citizens. Bortz’s lawyer had the vision to invoke the U.N. Convention to End All Forms of Racial Discrimination (CERD), which Japan signed in 1996. Judge Soh Tetsuro likewise exhibited creativity in applying international law domestically, via tort law, to fashion a modest, but unprecedented, remedy for Bortz. The Bortz case shows that the Japanese judiciary takes human rights seriously. Though the subsequent judicial record on racial discrimination is not perfect, Bortz is a bold salvo toward the entrenchment of the international norm of racial equality into Japanese law. Subsequent lawsuits on racial discrimination—brought by foreigners such as Arudou Debito, and Steve McGowan—evince Japan’s support for international human rights.

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