Japan v Mitsuyo Kono and Takao Kono

• Jurisdiction: Japón
• Date: 30 March 1971
• Court: High Court (Japan)

Japan, Tokyo High Court.

State of Japan

and

Mitsuyo Kono and Takao Kono

INTERNATIONAL LAW IN GENERAL

International law in general Sources Evolution of a new rule of customary international law Widespread State practice States generally refraining from extraditing political offenders Whether giving rise to a rule that political offenders may not be extradited or returned by way of deportation The law of Japan

The individual in international law Extradition Political crimes Whether rule of customary international law that political offenders may not be extradited Municipal law provision that political offenders are not to be extradited Whether applicable to deportation of alien on informal request from other State The law of Japan

Summary: The facts:The respondents brought this action complaining of the deportation to the Republic of China on Taiwan of Liu Wen Chin. Liu, a Chinese national had been a member of a movement which had campaigned for the independence of Formosa and had fled from China to Japan, where he had lived with the first respondent; the second respondent was their child. On 26 March 1968 the Japanese Immigration authorities had issued an order for Liu's deportation to Taiwan. The order had been executed the following day. The respondents contended that Liu was a political offender and that the deportation, allegedly at the request of the Government of the Republic of China on Taiwan, had been in violation of a rule of customary international law forbidding the extradition of political offenders, and of the similar prohibition in the Japanese Law for the Extradition of Fugitives from Justice. The Tokyo District Court found in their favour, the State appealed.

Held:(1) Although there was a widespread practice amongst States of declining to return political offenders, there was no rule of customary international law which actually forbade their return.

(2) The prohibition in the Law for the Extradition of Fugitives from Justice did not apply to the deportation of an alien which was not the result of a formal request for extradition, even if there had been an informal request for the alien's return.

The following is the text of the relevant part of the judgment of the Tokyo High Court:

Text of Judgment

The original judgment shall be nullified. Dismiss all demands of the Respondents. The cost of litigation, including that of the original instance, shall be borne by the Respondents.

Reasons

I. According to the facts that were made clear in the principal examination of the Respondent Mitsuyo Kono in the original hearing, the Respondent became acquainted in the Spring of 1963, with Liu Wen Chin, who was in Japan from the Republic of China to study and was a student of the Tokyo University of Education. They lived together without being legally married from about the Autumn of 1964 with the consent of her parents. On 20 December 1967 the Respondent Takao Kono was born to them and, although he was not legally acknowledged, the Respondents and Liu Wen Chin lived a loving and peaceful family life till 30 March 1968 when Liu Wen Chin was forcibly deported to the Republic of China. And there is no evidence contrary thereto.

Both parties agree that Liu Wen Chin was born in Formosa on 18 January 1935; that after graduating from Taiwan Teacher's College, he entered Japan with a valid passport in 1962 to study...