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Otaru Onsen Lawsuit: Defendants' Testimony


25 Apr 2002
Otaru Onsen Lawsuit: Defendants' Testimony and Two Updates on Settlement Discussions

Otaru Onsens Lawsuit: Hearing Eight (April 15, 2002): Defendants' Oral Testimony and Cross-Examination

The two Defendants in the landmark Otaru Onsens Case, where a German, an American, and a naturalized Japanese brought suit against 1) an exclusionary bathing facility for racial discrimination, and 2) the City of Otaru, Japan, for doing too little to resolve it, appeared in Sapporo District Court on April 15, 2002, to give sworn oral testimony.

These testimonies are now available in Japanese and English at the above site. They are worth reading not only because they offer rare insights into the mindsets behind racial discrimination and Japanese bureaucratic stonewalling, but also because they present courtroom drama at its finest. For those who think that Japanese courts must be dry and boring, read in thrall as Plaintiffs' lawyer Itou Hideko dissects and utterly destroys Otaru City's arguments in particular.

(If you want to plunge into the drama, skip to
Otaru Onsen Lawsuit: Oral Testimony of Mr Takeuchi Kazuho, Head of Otaru City's International Desk)

Highlights of both testimonies below for those interested.
Thanks for reading.

Arudou Debito
One Plaintiff, on behalf of Plaintiffs Karthaus and Sutherland
(full background on the case at www.debito.org: THE OTARU LAWSUIT INFORMATION SITE, by the Plaintiffs)


Mr KOBAYASHI Katsuyuki, Manager, stated for the record the exclusionary measures taken, the reasons why, and the ways in which the City of Otaru in his view refused to help resolve the situation. Mr Kobayashi also made clear that he in fact supports the passage of a local anti-discrimination ordinance (jourei), which Otaru City has for years refused to do.

Link to JAPANESE ORIGINAL (26 jpegged pages)
小樽外国人排斥温泉訴訟 小樽温泉「湯の花」代表 小林勝幸氏 の尋問・反対尋問 2002年4月15日、札幌地裁

Otaru Onsens Lawsuit: Oral Testimony of Defendant Kobayashi Katsuyuki, Manager, Onsen Yunohana


Mr TAKEUCHI Kazuho, contemporary Head of the Otaru City International Relations Desk, made clear in both his examination and cross-examination what measures the Otaru City government refused to take (such as drafting an anti-discrimination ordinance), even consulting the Ministry of Justice's Bureau of Legal Affairs (Houmukyoku) to find out what it was NOT legally obligated to do. This even though Otaru City, he explicitly stated, was aware of the problem as a matter of racial discrimination from 1993 (!!) Thus Otaru for the record clearly took insufficient measures against the problem for the better part of a decade--in incontrovertible violation of Article Two of the UN Convention on Racial Discrimination (http://www.debito.org/intlconvention.html), which Japan ratified in 1996. Moreover, Plaintiff lawyer Itou Hideko rends asunder the City's arguments that it "legally had no power to do anything".

Link to JAPANESE ORIGINAL (36 jpegged pages)
小樽外国人排斥温泉訴訟 小樽市代表竹内氏の尋問・反対尋問 2002年4月15日、札幌地裁

Otaru Onsen Lawsuit: Oral Testimony of Mr Takeuchi Kazuho, Head of Otaru City's International Desk

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UPDATE--Otaru Onsen Hearings 1 & 2 (Two included)

UPDATE MAY 15, 2002

New development in the Otaru Onsens Lawsuit:
(www.debito.org: THE OTARU LAWSUIT INFORMATION SITE, by the Plaintiffs)

On May 14, 2002, Plaintiffs Karthaus, Sutherland, and Arudou met with
Defendants Otaru City and exclusionary hot spring Yunohana Onsen, to discuss
a possible settlement (wakai).

Following Head Judge Sakai's demand that all sides meet before going to the
trouble of writing up a court decision (hanketsu), Plaintiffs and Defendants
met in turn with all three judges behind closed-door sessions.

Otaru City was unclear in its requirements for a settlement. Yunohana was
willing to discuss details, but nothing in writing was presented from either
side to the Plaintiffs.

Head Judge Sakai was quite insistent on a settlement, walking us through
several possible outcomes. The Plaintiffs were indisposed in their

COURT'S ARGUMENT: A settlement would make a social statement similar in
force to a court decision. Look at the Hansen Disease Cases--which for many
plaintiffs was settled out of court with as much social impact.
PLAINTIFFS' RESPONSE: Arudou has studied many court cases, and whenever a
settlement was reached, instead of a decision setting judicial precedents,
the social impact was severely diminished. A settlement would simply mean
only we three benefit, but would do little for the rest of Japan's people of
color. Karthaus added that the Hansen Cases had elderly plaintiffs which
had gone through years of litigation, so it is not the same type of case.
And it wasn't until there was a court victory in the Ana Bortz Case that
Hamamatsu City took measures to improve the lot of its foreign residents.

COURT: A court decision will severely diminish your compensation (baishou),
if it even awards any.
PLAINTIFFS: We aren't in it for the money.

COURT: You have accomplished what you wanted. Awaredness has been raised.
The exclusionary signs are down. Otaru City could promise to hold forums
on the subject, could promise to pass an anti-discrimination ordinance.
PLAINTIFFS: These are measures that should have been taken before the
lawsuit, not in response to it. This isn't only about Otaru. This is about
Japan's will to follow international treaties and protect all of its
residents in the era of internationalization.

COURT: If you don't settle and we were to rule against you, you will in
fact be setting a bad legal precedent for foreigners everywhere.
PLAINTIFFS: Then we will appeal. After years of extralegal measures taken,
we want Japan's judicial system to make a clear statement on exactly how far
Japan's Constitution protects people, regardless of physical appearance or

After about an hour of discussions, Judge Sakai told us to consider once
more a court-brokered settlement. There would be a concrete proposal sent
to all sides by the end of the month, and a second meeting on June 11. If
no agreement is reached, a court decision would come down sometime around
September 2002.


In a related note:

"Otaru is known for its canals and old Western-style buildings. Its image as
a charming port city and romantic weekend retreat from Sapporo has made
Otaru a popular spot for domestic tourists; gaijin are usually less
impressed with what is essentially a commercial city in the shadow of
Hokkaido's capital. Otaru has also become infamous as the home of Yunohana
Onsen in Temiya, which tried to ban foreign bathers and subsequently got hit
with a lawsuit brought by local foreign residents. Nevertheless Otaru's
historical importance and peerless sushi make it worth a stop."

Fodor's Guide to Japan (16th edition), page 561
Courtesy of the author, Amanda Harlow.



JUNE 18, 2002
(full background at www.debito.org: THE OTARU LAWSUIT INFORMATION SITE, by the Plaintiffs)

Plaintiffs Karthaus, Sutherland, and Arudou met with Defendants Otaru City and Yunohana Onsen for the second court-brokered settlement kyougikai on June 11, 2002.

Both parties had received from the Court the settlement offer on May 31. I cannot reveal the exact details of the offers, but I can say:

DEFENDANT YUNOHANA was a) to offer each Plaintiff a substantial amount of money (which I cannot reveal), and b) to apologize for causing mental distress to foreigners (gaikokujin) and promise to never refuse entry to all foreigners again.

DEFENDANT OTARU CITY was a) to understand the degree of mental anguish caused to foreigners and their families, and b) to promise to make sure this never happens again through offering guidance (shidou) to offenders, tabling discussion groups which foreigners can participate in, and strive to carry out "enlightenment" (keihatsu) in order to raise awareness and eliminate discrimination by Otaru citizens.

Plaintiffs refused the settlement because:

a) A settlement made bilaterally with Onsen Yunohana is never what we wanted. We want a court decision binding throughout Japan;

b) the terms of Otaru's settlement have no force and can amount to empty promises;

c) (Arudou speaking) this does not deal with me at all. It apologizes and makes promises to "foreigners". I am not a foreigner. I was refused entry as a Japanese. All aspects of racial discrimination (jinshu sabetsu) have been completely bleached out of this offered settlement, indicating that Defendants have learned absolutely nothing over the sixteen months since this case has brought or over the nine years since Otaru businesses started excluding. These are the depths of the problem we face--Defendants keep forgetting I am citizen simply because I do not look like one.

Now for the surprise. The terms of the settlement offer were not drawn up by the Defendants (we had assumed by the language of the terms that Judge Sakai had asked each Defendant what they would settle for and then served them up to Plaintiffs).

No. The words were Judge Sakai's, drafted by him on his own recognizance. Which means even the judge has been blindsided on this issue.

I asked the judge when I would be recognized and treated like a Japanese. This is why we want a decision in black and white.


Fortunately, we weren't the only ones dissatisfied with the terms. Both Defendants also refused to settle. The court-sponsored discussion then drew to a permanent close, leaving the judges no choice but to issue a decision (hanketsu).


Thus there will be no out-of-court settlement.
Concluding arguments due on August 19, 2002.
The final court decision will come down on a date TBD after that.

All for now.

Arudou Debito
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