|Bibliographies and reviews|
Reviews of publications on nationality and naturalization
By William Wetherall
First posted 22 August 2007
Last updated 20 May 2014
Works with green links are reviewed in independent articles
Chapman and Krogness 2014
SF CG of Japan 1925
Naturalization Asakawa 2003 Asakawa 2007 Kobayashi 2011 LeMay and Barkan 1999 Udell 1972
Materials about "nationality" -- or about "citizenship" in the sense of "nationality" -- are grouped here. However, materials about naturalization are grouped under "Naturalization".
|T. Alexander Aleinikoff and Douglas Klusmeyer (editors)|
Citizenship Today: Global Perspectives and Practices
This book is a collection of twelve essays commissioned by the International Migration Policy Program, of the Carnegie Endowment for International Peace, for a conference held in Lisbon, Portugal in June 1999. Like most conference books, the quality of the contributions is mixed, but the breadth of issues covered in the essays makes the book essential reading for any student of nationality theory and practice.
There are only a few passing references to Japan. One comes in comes in T. Alexander Aleinicoff and Douglass Klusmeyer, "Plural Nationality: Facing the Future in a Migratory World" (Chapter 3). Though the longest, it is too short -- and too general -- to be regarded as other than a cariacture based on misinformation (page 77).
In fact, Japan's nationality laws have never categorically forbidden dual nationality -- and dual nationality is now increasing. Moreover, there have never been any racioethnic constraints on naturalization in Japan -- and all manner of foreigners have taken advantage of the very straight-forward, easily satisfied provisions for naturalization in Japan.
Oddly, a table showing "Rules of Citizenship in Selected Countries" gives slightly different profiles for Austria and Japan (Table 3-1, pages 66-68, columns and rows inverted for convenience of presentation here, bold emphasis mine).
The "Yes, with registration" refers to the requirement that, to confirm Japanese nationality at birth -- anywhere, in Japan or abroad -- parents are required to file a notification of birth in a timely manner; and to the requirement, in the case of birth abroad in a jus soli state, a notification of intent to retain nationality also has to be filed
The "Yes" with reference to retention of nationality after naturalization is wrong -- because, under Japan's Nationality Law, a Japanese national who voluntarily acquires the nationality of another state will, in principle, lose Japanese nationality.
The above over-generalization and errors are common in reports on Japan's Nationality Law -- because researchers in other countries are likely to read only a degraded translation of the general law, and do not read enforcement regulations or otherwise gain insight into the background and workings of the law. And, alas, they are likely to buy into the usual stereotypes about Japan as an "ethnocentric" or "closed" society.
Taken the above (common) flaws, however, the contributions in this book cover most of the issues that are vital to an understanding of nationality today, in a world that is becoming increasing "trans" and "multi" national.
Japanese Law of Nationality
Bowles shows only extracts or summaries of a translation he attributed to J. E. D Becker in the Appendix of Annotated Civil Code of Japan, which I have not seen. De Becker's translation is generally accurate but its phrasing tends to be interpretive rather than structural.
Bowles makes this important observation (page 6).
My copy of Bowles 1915 is a rather faded copymachine repro of the original pamphlet, as preserved between boards in the Doe Library of the University of California at Berkeley. I made the copy sometime between 1972-1975. The library call number, as I wrote it on my copy, JQ / 1686 / A3 / 1915.
My discovery of this small pamphlet in the stacks at Doe was the start of my personal interest in Japanese nationality as a raceless civil status.
The copy was gifted to the UC Berkeley Library on 16 September 1915, the year it was published in Tokyo. Apparently it was privately published and distributed by the author, who was living in Tokyo at the time. Bowles also wrote and distributed a similar pamphlet called "Land Tenure by Foreigners in Japan", as reprint from the November 1914 issue of "The Japan Peace Movement" -- which may have been a Quaker publication, as Bowles was a Quaker missionary in Japan, and he was active in the peace movement that followed the Russo-Japanese war.
Gilbert Bowles (1869-1960) was an American. He served in the Friends Foreign Mission in Japan from 1901 to 1941. Apparently he is buried in the foreign section of the Aoyama Cemetery in Tokyo, though I have not dug into this question. His wife, Minnie P. Bowles, is said to have served in the same mission between 1893 and 1941.
This has nothing to do with Japan's Nationality Law. Rather it is about one individual who was sufficiently interested in Japan's Nationality Law at the time to publish a pamphlet and go to the trouble to cite De Becker's statement about there being no racial or national discrimination in the law.
Today Bowles would be regarded a publicist for human rights. Like many missionaries who knew Japan, he appears to have advocated an end to discrimination against Japanese immigrants in the United States, who were not allowed to naturalize because they were neither "white" nor of "African nativity" or "African descent". Their "ineligibility to citizenship" because of their putative "race" was legally specified in the guise of the highly racialized term "national origin".
I believe one of the reasons Bowles published this pamphlet was to show that Japan's Nationality Law -- unlike America's laws -- did not condify "racial or national discrimination". While this was clear from the law itself, Bowles stressed this point in his comments at the end of the pamphlet by citing De Becker, not only an authority on Japanese law, but an example of someone who had become a Japanese national through marriage -- which was unimaginable in the United States.
|Candice Lewis Bredbenner|
A Nationality of Her Own
Bredbenner focuses on gender issues in nationality and citizenship law in the United States, during the early decades of the 19th century, before and after suffrage was extended to women in 1920.
Giving women the right to vote changed the political character of their "citizenship" -- hence their nationality could no longer be regarded as derived from the nationality of their husband should they marry an alien. Revisions in laws concerning loss and gain of US citizenship in marriages between US citizens and aliens, however, created all manner of problems because of constraints on the immigration status of alien spouses ineligible to citizenship.
This book is essential reading for any student of nationality theory and practice. It has nothing to do with nationality in Japan, and indeed "Japan" does not even appear in the index. But understanding the history of gender and nationality in the United States, in the context of private international law, is crucial for understanding the revisions made in Japan's Nationality Law after World War II.
Citizenship and Nationhood in France and Germany
This study of "citizenship" in France and German as states which base membership in their nations primarily on jus sanguinis is very useful when considering the approaches to national definition in East Asian states nations, particularly Japan, whose nationality law was heavily influenced by the nationality laws of both these European states.
I have flagged "citizenship" because Brubaker uses it in a somewhat generalized way (page 51, bold emphasis mine).
This statement is significant because the Japanese term 国籍 (kokuseki) appears to have evolved from the term 国民籍 (kokuminseki), which was coined in 1883 as a translation of "Staatsangehörigkeit" (Ninomiya 1983: 218, 220).
Brubaker, however, does not explain why he thinks "citizenship" captures the meaning of the German term better than "nationality". In a report called "Towards a European Nationality Law", Gerard-Rene de Groot, of Maastricht University, found that "Staatsangehörigkeit" was used to represent "nationality" in Germany's versions of European Union treaties concerning a European Constitution (Electronic Journal of Comparative Law, Volume 8.3, October 2004). See European nationality and citizenship for an overview of nationality and citizenship in the European Union, partly based on de Groot's report.
In the next paragraph, Brubaker links "Staatsangehörigkeit" with "Volkszugehörigkeitas" -- which he renders "nationality" (page 51).
Brubaker makes the following comparison of French and German, and even American, terms (page 50)
Brubaker's sweeping statements about "nationality" and "citizenship" being roughly synonymous and interchangeable gives the impression that he has "nationality" and "citizenship" laws as law. He conflates the two to the point that "citizenship" is the longest entry in the Index, and there is no entry at all for "nationality". "Nationality" appears only twice: under "Citizenship:" in an item called "and ethnic nationality" (numerous references), and in an entry called "Principle of nationality" (two references).
Sociological rather than legal terminology
Brubaker's conflation of "citizenship" and "nationality" facilitates his historical comparisons of France and Germany, and at times other countries, like the United States and Canada. However, it has no foundation in law.
"Citizenship" has legal standing only in the municipal laws of states that use it. Moreover, the meaning of "citizenship" varies among the states that use it. The laws of some states, including Japan, do not use terms that are metaphorical equivalents of "citizen" or "citizenship".
"Nationality", though, has universal currency in international law, where it means affiliation with a state regardless of attributions or qualities of municipal (domestic) citizenship. All states are equal as states -- despite Brubaker's remark in Note 2 above -- and the nationalities of all states are of a uniform quality.
"US nationality" means only affiliation with the United States, as a state, regardless of one's citizenship status. In fact, US municipal law (but not international law) differentiates "US citizens" (who have federal political rights) from "US nationals" (who do not have federal political rights).
"Principle of nationality"
Brubaker observes that while the French word "nationalité" was increasingly used after 1830 to mean an "ethnocultural community" (page 98), the term "was not synonymous with "nation", which he says meant "autonomous political organization" and not necessarily "ethnocultural community" (pages 98-99).
According to Brubaker, the "principle of nationality" was first expressed, and became current, after mid 19th century, to conceptually differentiate "nationality" and "state" (page 99). He argues that "ethnocultural" sympathies may have fostered the tendency to view "nationals" of the state in ethnocultural terms (page 99, bold emphasis mine).
Assimilationist France, differentialist Germany
Brubaker, a sociologist, views "nations" and everything related thereto through strongly anthropological and political -- rather than legal or civic -- lenses. Consequently, he sees "nations" as essentially "ethnocultural" entities. He does not insist that "ethnic groups" are natural, but argues that institutionalized cultural forces have created different forms of nationalism, some more ethnic (Germany) and some more civic (France).
Brubaker summarizes the basic thesis of his book in the Introduction (page 1).
Brubaker, a professor of sociology at UCLA, is best known for his analyses of nationalism in Europe.
In Nationalism Reframed: Nationhood and the National Question in the New Europe (Cambridge University Press, 1996) he looks at nationalism in post-Soviet Europe and Eurasia in terms of the triad of nationalisms "linking national minorities, the newly nationalizing states in which they live, and the external national 'homelands' to which they belong, or can be construed as belonging, by ethnocultural affinity though not by legal citizenship" (as Brubaker describes his own book on "The Nationalism Project" website, bold emphasis mine).
In Ethnicity without Groups (Harvard University Press, 2004), Brubaker and co-authors examine the real "groupism" of imaginary "groups" and other issues involving ethnicity, identity, nationalism, and assimilation. The publisher's blurb characterizes the climate in which "groups" are invented in the name of "ethnicity" as follows (HUP website).
|Chang Hyo Sang|
Nationality in Divided Countries: a Korean Perspective
Chang's article dwells on ROK's laws, though DPRK ("North Korea") figures more in his discussion of the politics of unrecognized entities. His conclusion reflects the somewhat nationalistic and ethnonationalist tones of his "pro ROK" and "ethnic Korean" stance (page 293).
|Edward I-te Chen|
Edward I-te Chen
Chen 1984 is reviewed in conjuction with Chen 1968 on an independent page as Edward Chen on "Attempt to Integrate Empire".
Nationality and International Law in Chinese Perspective
Chiu's article on China is limited to the Republic of China up to about half a century ago. While it virtually ignores the People's Republic of China, and more recent developments in ROC nationality, it does discuss, at some length, how ROC dealt with the legacies of Japanese rule in Taiwan.
|[Cho Kyongje] 趙慶済 [チョ キョンジェ Cho Kyonje] [조 경제 Cho Kyŏngje]|
Cho 2007 is reviewed on an independent page as Cho Kyongje on "Personal law of Koreans in Japan".
|Erin Aeran Chung|
Immigration and Citizenship in Japan
New York: Cambridge University Press, 2010
Chung 2010 purports to be about "immigration" and "citizenship" in Japan but it is so heavily skewed toward "Korean residents in Japan" that I have placed under "Koreans" on the "Minorities" page of the "Bibliography and reviews" section, where it is reviwed on an independent page as Erin Chung on "Immigration and Citizenship in Japan".
|Irene R. Cortes and Raphael Perpetuo M. Lotilla|
Nationality and International Law From the Philippine Perspective
The Philippines had the legal misfortune of becoming a territory of the United States. It inherited all the convolutions, and even the racism, of American citizenship and nationality law while adding its own wrinkles. This article is a solid attempt to reduce the multi-dimensional legal maze of Philippine nationality law to the three dimensions of 88 pages -- the longest chapter in the book.
|Doi Takako (editor) 土井たか子 (編)|
This book is particularly important to me because its main object was to publicly air deliberations in the Diet concerning how to revise Japan's Nationality Law. The revisions were necessary to bring the law into compliance with a UN convention in which Japan agreed to eliminate sexual discrimination from its laws by 1985.
Parts of the book discussed contemporary lawsuits against the government of Japan, alleging sexual discrimination in the Nationality Law. Two pages are given to my daughter's case, though by then the case included my son. The principal plaintiffs in the cases were the children and their mother, and yet I am given half the attention. The subhead says "Saori -- The event [case] of child of American nationality" -- which seriously misrepresents the circumstances and contentions of her lawsuit. Predictably, other information, including parts of my profile, are incorrect.
It's editor, Doi Takako, was a prominent leader of the Japan Socialist party and, as a member of the House of Representatives, also a leader of the movement in the Diet to revise the law to enable the children of Japanese women married to aliens to acquire Japanese nationality at birth under the same conditions that the children of Japanese men married to aliens were able to become Japanese.
The book is divided into four parts (my structural translations).
Among the contributors to the book, Doi Takako, its nominal editor, was by far the most recognized name. Given her prominence in the Diet as a leader of the Japan Socialist Party, the book naturally reflects JSP's fairly radical view of past and present nationality issues in Japan. While the book explores nationality as a legal artifact, it leaves no stone unturned on the ideological terrain. Consequently, some of the contributions are more about racioethnic sentiments than about nationality as a civil status.
The principal contributors, as described in the back of the book, are as follows (page 250).
Ishida Reiko on my daughter's case
Ishida Reiko, not a polititican but a researcher and publicist, was closely associated with JSP's advocacy for legal reform of not only the Nationality Law but also the Alien Registration Law and so-called Immigration Control Law.
An article in the book by Ishida Reiko gives two pages to my daughter Saori's case, mentions my son Tsuyoshi's case, and profiles me and Sugiyama Etsuko who, as their mother, was the principal plaintiff. Ishida came to several court hearings and both Sugiyama and I had occassional out-of-court contact with her.
Ishida thus knew more than most people about nationality issues, and she knew Saori's case fairly well. Yet her characterization of the case, and some of the biographical information, are incorrect. By this I mean only to say that collecting facts about nationality, and piecing them together into an accurate picture, are not easy.
|Endō Masataka 遠藤正敬|
Kindai Nihon no shokuminchi tōchi ni okeru kokuseki to koseki
Endo 2010 is reviewed on an independent page as Endo on "nationality and family registers".
|Richard W. Flournoy, Jr. and Manley O. Hudson|
A Collection of Nationality Laws of Various Countries as Contained in Consitutions, Statutes and Treaties
This was the bible of nationality handbooks in English at the time of its publication. Is is still the most valuable single volume reference for pre-World War II purposes. It's analytical index is especially valuable.
Judging from the English translations of the laws and ordinances in the Japanese section, however, the quality of the English versions of the laws from countries where English was not an official language cannot be taken for granted.
My copy of the book contains a purple stamp which reads "Surplus - 4, Library of Congress, Duplicate" under the library seal. The black fountain-pen signature of a "Warren Kelchner" appears on the free endpaper.
Warren H. Kelchner worked for the Department of State. The United States Government Manual, 1945, lists him as Chief, Division of International Conferences, in the Office of Departmental Administration. He wrote several articles for political science and diplomacy journals. At one time he was an instructor in political science at the University of Pennsylvania.
A photograph in the Truman Library shows Kelchner on a stage with Dean Acheson (1893-1971) and Earl Warren (1891-1974), clapping while standing around Harry S. Truman (1884-1972), who is speaking at a podium, smiling, his hands spread. Across the back of the stage is a row of national flags.
The date is 4 September 1951. The men are more fully described as "Dr. Warren Kelchner, Temporary Chairperson of the Japanese Peace Treaty Conference, Governor Earl Warren of California, President Harry S. Truman, and Secretary of State Dean Acheson standing on stage. President Truman is addressing the Japanese Peace Treaty Conference in San Francisco, California."
For what it's worth.
|Randall Hansen and Patrick Weil (editors)|
Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe
This book is a collection of thirteen articles based on papers presented at a June 1998 conference, held in Paris and supported by the German Marshall Fund of the United States and the French Ministry of Social Affairs, on nationality law, immigration and integration in Europe and the United States. It is mainly concerned with problems related to dual nationality and plural citizenships in Germany and the United States, with reference to other European countries and, in the American hemisphere Mexico, Brazil, and the Dominican Republic.
The issues raised in this book are particularly important because both Germany and the United States have had to cope with large numbers of immigrants whose children may be dual nationals with plural citizenships.
One of the most interesting contributions is Peter H. Schuck's "Plural Citizenships" (Chapter 3), which begins this the absolutely wonderful observation (page 61).
|Hiraga Kenta 平賀健太|
This publication, which appeared on the heels of the 1950 Nationality Law, is in many respects the bible of early postwar Japanese nationality law studies. Though superseded by Tashiro 1974 as a guide to the workings of the 1950 law, it remains more valuable for certain historical content not found in Tashiro.
Hiraga 1950-1951 straddled the signing of the San Francisco Peace Treaty on 8 September 1951. Hiraga's commentary on the applicability of the 1899 to Taiwan, Karafuto, and Chosen, and the postwar treatment of former imperial subjects of these territories under both the 1899 and 1950 nationality laws, has a freshness not evident in less contemporary sources (1:132-133, 140).
"Special problems concerning the efficacy of the Nationality Law" (Chapter 2, Section 1, Part 3) is divided into "The scope of the State of Japan" (日本国の範囲 Nihonkoku no han'i) and "The scope of Nationals of Japan" (日本国民の範囲 Nihon kokumin no han'i). The issues covered here are mostly those that by 1950 were already affecting the status in Japan of people still formally affiliated with Taiwan, Karafuto, and Chosen (1: 153-170).
Hiraga begins his discussion of the historical development of the 1899 Nationality Law with the text of, and some commentary on, the 1873 Great Council of State Proclamation No. 103 concerning alliances of marriage and adoption between Japanese and aliens (1:122-125). More importantly, though, he includes (unlike Tashiro 1974 and most others) the full text of, and extensive commentary on, the "national status" articles of the 1890 Civil Code that was promulgated but never enforced (1:125-131).
Hiraga participated in the writing of the 1950 Nationality Law and published a long overview of the new law in the June 1950 issue of Hōsō jihō (法曹時報), the journal of the Jurists Association [Lawyers Association, Association of Juridical Officers] (法曹会 Hōsōkai).
Hiraga Kenta (1912-2004) came up through the ranks of the the Ministry of Justice as a legalist and prosecution counsel before leaving the ministry for a series of judgeships. Circa 1960-1966, he was Director-General of the Civil Affairs Bureau of the Ministry of Justice (法務省民事局長). Circa 1958 he was acting director-general (心得). Circa 1956 he was an administrative representative (事務代理) and a councilor (参事官) of this office.
As a specialist in civil law, Hiraga appears to have been most interested in family law. In 1942, while affiliated with the Investigation Department of the Ministry of Justice (司法省調査課), he wrote a report called "Reconsidering the family system in our country" (我国家族制度の再検討). In 1995 he wrote an article "On different husband-wife family names" (夫婦別氏について) for a Civil Code information bulletin.
After World War II, with many other government and civilian specialists, he was involved in revising the Civil Code and Family Register Law, effective from 1948, which had to be brought into line with the principles of the 1947 Constitution. He became particularly experienced in nationality issues, participated in the in the drafting of the new 1950 Nationality Law, and wrote the earliest guides to the law, including the volumes reviewed here.
Hiraga appears to have been a bit of an "advocate" jurist and once was nearly impeached for violating the principle of judicial independence. In 1969, while serving as Chief Judge of the Sapporo District Court, he sent a memo to another judge in the same court, attempting to influence the decision in an administrative lawsuit over which the other judge was presiding. The lawsuit, filed by residents of Naganuma, in Hokkaido, sought a nullification of an order issued by the Minister of Agriculture and Forestry to release some protected forest land for a Nike missile base near the town.
Hiraga received a reprimand and was transferred to the Tokyo High Court. The following year, the other judge, Fukushima Shigeo, was also disciplined. In 1973, Fukushima, who stood on the opposite side of the political spectrum from Hiraga, and two other Sapporo District Court judges, nullified the order on the grounds that the Self Defense Forces were unconstitutional. In 1976, the Sapporo High Court overturned the lower court's ruling, and in 1982 the Supreme Court upheld the higher court's ruling but avoided its examination of the constitutionality question.
The publishing company, which specializes in legal texts and information guides for attorneys and scriveners, was founded in 1920 and recapitalized 1951. In 1977 it was established as a joint-stock company called simply テイハン (Teihan), its shorter name, leaving behind its "imperial precedents and laws" image.
Japanese nationality in international perspective
Hosokawa's contribution is arguably the clearest and most comprehensive overview of Japan's Nationality Law in any language. At the time he wrote it, he was the Director of the Third Division of the Civil Affairs Bureau of the Ministry of Justice, and had formerly been the Director of the Nationality Division of the same Bureau (according to his author profile). At the time of this writing (2008), he was the chief justice at the Nagoya High Court.
There are, inevitably in an article as complex as this one, probably edited by several hands without the benefit of total cross-checking, some errors and oversights. Fortunately, Hosokawa's prefatory comments -- on Shinto, racial and cultural homogeneity, and the Japanese language -- have no relevance to his generally sound and reliable legal treatise.
Given his status as a Ministry of Justice official with close ties to postwar nationality issues, he naturally articulates the Japanese government's stance on the nationalization and denationalization of "Koreans" -- meaning the population affiliated with Korea/Chosen.
Hosokawa Kiyoshi 細川清 (b1944) began his legal career in the late 1960s and early 1970s as a district court judge in Tokyo and Hakodate. In the late 1970s he joined the Civil Affairs Bureau of the Ministry of Justice. In the early 1980s he was active in discussions concerning the government movement to revise the 1950 Nationality Law by 1985. From the late 1990s he moved on to a series of judgeships, and at the time of this writing (2007) he was the chief justice of the Nagoya High Court.
|International Social Service of Japan 日本国際社会事業団|
Research on Children of U.S. Nationality in Japan:
This report -- about nationality issues in Japan as they concerned American children of mostly mixed American and Japanese parentage -- comes close to being a model for raceless description of such children in terms of the nationality of their parents. Parts of the report should have been required reading for journalists and pundits at the time my ex-wife and I filed nationality confirmation lawsuits on behalf of our daughter in 1978 and our son in 1982.
Our biggest battle was not with the courts -- which were merciful in their legalist rejection of our grounds for claiming that our children should legally have qualified for Japanese nationality. Our main "natural enemy" was mass media and even academia, which insisted on racializing cases that had nothing to do with race -- and could not have been about race, because Japan's laws have been raceless.
I say "cases" because -- while my daughter and son were able to acquire US nationality through me through the operation of the jus sanguinis (right of blood) principle in the US Immigration and Nationality Act -- in the docket a bit earlier than ours, but represented by the same attorneys, was another case which involved a child who had become stateless because she had fallen between provisions in the nationality laws of Japan and the US for acquiring their nationality at time of birth.
Table of contents
Many pages of the ISS report are given to relevant US and Japanese laws. Here is the table of contents (page numbers omitted).
Scope of ISS survey
The main object of the ISS report was to provide information about the population of children in Japan who were known to have US nationality, with a view toward counseling those who stood to lose their nationality and become stateless.
The report begins with an overview of the results of a survey which ISS conducted of 780 individuals, or about 20 percent, among the 3,913 individuals it attempted to reach based on a pre-survey collection of names and addresses of children in Japan who were thought to have U.S. nationality.
Ninety-two (92) percent of the surveyed individuals had been born in Japan. Eight (8) percent had been born in 46 other countries.
The five most representative countries of birth other than Japan, in rank order, were the Republic of China (Taiwan), the Federal Republic of Germany (W. Germany), the Republic of Korea, the Republic of Philippines, and the French Republic (France). All children in the survey had US nationality because they came under the US Immigration and Nationality Act.
Ninety-five-point-four (95.4) percent of the children surveyed had American fathers, and ninety-five (95) percent had Japanese mothers.
Holes between laws
The following passage shows both the qualities and faults with this generally high-caliber report (pages 16-17, figure omitted). The percentages are of the 780 subjects of the survey (see above).
People are described according to their nationality. The pie-chart figures list American, Japanese, Chinese, Korean, Canadian, Filipino, Thai, Israel, German, and Other nationalities. There are also categories for "Japanese, Americans Dual" and "Stateless).
There are, however, a few errors of commission and omission -- most of them common to descriptions of US-Japan nationality issues in media and academia.
1924 revisions to the 1899 Nationality Law required that Japanese parents residing in specified jus soli countries, including the United States, had to register the birth of a child born in the country within two weeks, at a Japanese consulate, to reserve Japanese nationality for the child later in life. The child did not formally become a dual national -- thus satisfying the demands of the United States and other jus soli states, which objected to dual nationality -- until which time they went to Japan and activated their residual nationality.
Since the 1950 Nationality Law, reservation of Japanese nationality by registration at a consulate has become mandatory regardless of where a child of Japanese parents is born overseas. However, even children born in Japan acquire Japanese nationality only through timely filing of a notification of birth and family registration (see below).
"a parent born overseas"
Given the precision of most of the legal description in this ISS report, the above description is conspicuously sloppy. The relevant law was not about the qualifications of "a parent born overseas", but about the qualifications of the parent of a child born overseas -- as follows (Udell 292).
Paragraph (7) of subsection (a) caused children to become stateless at birth.
Subsection (b) caused people who had become nationals and citizens of the US pursuant to paragraph (7) of subsection (a) to lose their US status. Persons who thus lost their US nationality became stateless if, as was usually the case, they had no other nationality.
The ISS report under review was primarily concerned with the provisions of subsection (b). However, the child in the nationality confirmation case that was also in the docket with my children's cases had become stateless because of Paragraph (7).
The father of the girl was born stateless, and remained stateless throughout his upbringing and education through college in Japan. As an adult, he lived for a few years in the United States, where he naturalized. He then returned to Japan as a US citizen.
His Japanese wife gave birth in Japan to a girl, but when the man filed her birth certificate at the US consulate in Tokyo, he learned that he she did not qualify for US citizenship by jus sanguinis (right-of-blood) because he had not resided in the US for five years after becoming a US citizen. And because Japan's law was then patrilineal for married couples, the girl became stateless.
"automatically acquiring . . . nationality"
Japanese nationality is never automatically acquired. The law operates "automatically" when a child's notification of birth is filed in a timely manner and, upon vetting the particulars entered on the notification, the child is found to qualify for enrollment in a family register, usually of its Japanese parent or parents. The timeliness of registration is vital.
"quite natural . . . many problems"
While this use of "natural" is idiomatically natural -- there is, in fact, nothing "natural" about legal problems. All such problems are the result of failures to enact laws that do what laws are supposed to do.
In principle, nationality laws are designed to minimize if not prevent statelessness. The problem is that most laws have not entirely prevented statelessness. However, the amendment histories of most laws reflect the efforts of lawmakers to plug one or another gap between the amended law and the laws of other states.
In any event, cases of statelessness at birth, and cases of becoming stateless later in life, not "many" but few and even rare.
The ISS report -- though better in this respect than most writing in English about nationality issues -- mixes its metaphors. Neither Japan nor the United States have a "citizenship law".
Nationality laws in the United States are about nationality. They define both "nationals and citizens" and "nationals". All citizens are nationals but not all nationals are citizens. Both have nationality but only citizens have citizenship.
Japan's Nationality Law does not make such distinctions. Moreover, neither "citizen" nor "citizenship" are defined in Japanese law.
The report contains one of the best summaries of social welfare services and their availability. The table contains detailed descriptions of the "Purpose of the Law" and the "Type of Assistance". Here I show only the names of the laws and the applicability of their provisions to children of US nationality -- who are the subjects of the ISS report (pages 20-21).
I have not vetted the information in the above table. In any case, all these laws have undergone revisions since the ISS report was compiled.
My purpose in showing the table is to underscore the fact that Japan has had many kinds of social welfare services. And at the time, these services were available to Japanese children of Japanese mothers -- meaning most children born to Japanese woman out of wedlock, regardless of her or the father's putative race -- as race has not been a factor in Japanese law.
Prejudice and discrimination
Here is the entire three-page section on "Prejudice" (pages 24-25, figures omitted). The percentages are of the 780 subjects of the survey (see above).
The expressions "racially similar group" and "'different' appearance and parentage" and "distinctive appearance" appear once each. The term "mixed parentage children" appears five times and "of mixed parentage" appears once.
While "mixed" refects the fact that the parents are of different nationalities, the characterization of the children as being "distinct" or "different" in appearance -- and the reference to another "racially similar group" -- suggest that "mixed parentage child" was ISS's code for "mixed blood child" (konketsuji). Whatever its intent, "mixed parentage" is a suitably ambiguous English avoidance of the "blood" metaphor of the Japanese term.
Given the impulse of so many writers to directly racialize nationality -- the ISS report is relatively free of racialist overtones.
Legal Treatment of Koreans in Japan
This widely distributed article on the human rights of Koreans in Japan is mostly useful as a collation and analysis of commentary in numerous legal sources related to its title. As a statement on the current status of Koreans in Japan, it is obviously dated.
The article begins with a thumbnail history of the origin of Japan's Korean population. As the purpose of the article is to explore the legal status of Koreans in Japan at the time of its writing, in the light of domestic and international law, particularly after World War II, its thumbnail sketch of the origins of the postwar Korean population in Japan is very brief and somewhat misleading -- though Iwasawa avoids making the sort of characterizations that mar the more victimhood versions of annexation history.
While Iwasawa is clearly sympathetic with the difficulties faced by some Koreans in Japan because of laws and policies that differentiate them as aliens, and thereby deny them some of the freedoms and opportunities reserved for Japanese, he tends to place more importance on "international" law than is warranted by its actual authority. In this he is much like Ōnuma Yasuaki, who he thanks fro providing him with may Japanese materials not available in the United States, where he wrote the article "as a report for the International Human Rights Law Group in Washington, D.C., in connection with the International Human Rights Law Clinic of the University of Virginia School of Law" (page 131).
Iwasawa is not especially reliable on detail. His description of changes in the Nationality Law in 1985 will create misunderstanding among readers not already familiar with the law. While his prediction that the revised law will result in a drop in the Korean population is true -- it is also true for other resident alien populations, in the sense that the ambilineal principle in the 1985 law means the more a settled alien population intermarries with Japanese, the less its natural increase.
Iwasawa's review of international conventions and "customary law" that should, he feels, moved the Japanese government to give residual Koreans a choice of nationality (he says nothing about other nationalities in a similar position) After reviewing a lot of "international" laws that turn out to have little authority in Japan (or anywhere, for that matter), he finally admits that both ROK and DPRK -- and most residual "Koreans" in Japan -- have no quibbles with Japan's unilateral denationalization -- since why would any self-respecting "Korean" want to be Japanese?
Iwasawa's discussion of "Loss of Nationality by the Peace Treaty of 1951" (pages 144-147) reflects the conventional position of scholars who criticize the ministerial circular which denationalized all former exterior subjects, from 28 April 1952 when the San Francisco Peace Treaty came into effect. "This step," he says, "seems to be contrary to Article 10 of the Constitution which provides: 'The conditions necessary for being a Japanese national shall be determined by hūritsu [statutes]" (page 147) -- citing the English version of the 1947 Constitution but substituting "hūritsu [statutes]" for "law".
To be continued.
On the surface, his argument would seem to be cut-and-dry -- of course Japan's action was illegal. However, why would the Ministry of Justice -- staffed as it was and still is by enough legal experts to run a country twice Japan's size -- have made such an elementary error?
Apart from the moral shortcomings of Japan's actions -- about which I totally agree -- I find no reason to believe that the Ministry of Justice went out of his way to violate Article 10 of the constitution.
Iwasawa seems to misunderstand the position of the Japanese government, as he describes it, that "nationality" falls under "national origin" in the sense of "national characteristics" (pages 138-140, and related notes). On the contrary, Japan has taken the view that "national origin" should mean only an original or previous nationality as an attribute of legal affiliation with a state -- particulary the state an alien came from, or the foreign nationality a person born in a country may have acquired at birth in lieu of the country's nationality.
Japan specifically objects to the use of "national origin" to mean "national characteristics" in the sense of "race" or "ethnicity" -- which is how the term is usually used and understood in the United States, and in United Nations language inspired by such racialization of "nation" and even "nationality" -- as when an American asks, "What is your nationality?" meaning "What is your national origin?" meaning "what is your race or ethnicity?"
|Consulate General of Japan, San Francisco (Compiler)|
Documental History of Law Cases affecting Japanese in the United States 1916-1924
The brown cardboard covers of both volumes has two stamps in purple ink, horizontally in the upper left corner the date "JUN 8 1925", and vertically in the lower left corner the graphs 米國 西北部 / 聯絡日本人會 (Beikoku Seikokubu / Renraku Nihonjin Kai) -- literally "America northwest division / Liaison Japanese association" -- which in English usually called itself "The Japanese Association of North America".
The first first page of both volumes also has two purple stamps, one in the upper right corner reading 寄贈 (kizō) or "Gift [of]", the other in the lower right corner reading 在米日本人會 (Zaibei Nihonjin Kai) -- literally "Association of Japanese in America" -- but usually styled "The Japanese Association of America".
The Japanese Association of America was formed on 4 February 1908, in San Francisco, at the encouragment of Japan's Consul General in the city, to replace a disbanded council which until then had been dealing with status issues involving Japanese immigrants and laborers.
The copies described here, purchased while I was at Berkeley and now part of Yosha Bunko, appear to have once had labels midway up their spine, suggesting they had been in a cataloged collection, although no library stamps appear in either volume.
I have no evidence but suspect that the manufacturing of the volumes was financed by the Japanese Consulate in San Francisco, which is also the stated copyright holder. I have no idea how many copies were printed or how and to whom they were distributed -- except that, judging from my copies, the Japanese Association appears to have gifted some.
The importance of these publications is seen less in their exhaustive treatment of cases involving naturalization and land ownership of Japanese in the United States, than in the fact that the Consulate General of Japan in San Francisco compiled them -- and probably also saw to their printing and primary distribution -- presumably with the approval and support of the Ministry of Foreign Affairs in Japan.
To be continued.
See 1899 Nationality Law for overview of how Japan revised its laws in 1916 and 1924 in response to US concerns about dual nationality.
The politics of legal status
This article is more about "politics" than "legal status". Kashiwazaki fails to develop a clear and objective understanding of "nationality" as a legal status in Japan. Her effort to show the impact of "ethnonational identity" on nationality is heavy with fashionable criticism but light on historical fact and concrete examples.
Nationality and citizenship
Kashiwazaki does, however, get some important things right. Her distinction between "nationality" and "citizenship" is one which all writers -- journalists and academics alike -- should make (page 14).
Having gone to the trouble to make the distinction between "nationality" and "citizenship" she violates it numerous times throughout her article. She also has problems with the meanings of "Korea" and "Japan" when "Korea" was actually "Chosen" and "Chosen" was actually part of "Japan" -- and "Koreans" were "Japanese" nationals of "Chosenese" subnationality.
"denizens" and "citizens"
The section beginning with the above distinction runs nearly three pages. Over two pages of theoretical web spinning -- in reference to some vague "Western Europe" -- end with the following two paragraphs, which set up rest of the article (page 16, bold emphasis mine).
Kashiwazaki romanticizes "European experiences" rather than clarify experiences in East Asia, including Japan. Like some other writers she favorably cites (e.g., Ōnuma), she is more interested in wishful thinking than legal and political reality.
It is easier to construct fictitious "contemporary international norms about preventing statelessness upon territorial transfers" (page 23) than to deal with the authority of law and the power of politics. The legacies of treaties and laws that facilitated Japan's gain and loss of Taiwan, Karafuto, and Korea continue to affect present relations between Japan and all affected states.
The states most affected by Japan's gain and loss of Korea are the Republic of Korea and the Democratic People's Republic of Korea -- but these two entities did not emerge until three years after Hirohito surrendered Japan, effectively abandoning the empire's sovereignty over Chosen, as Korea was called when part of Japan.
Kashiwazaki confuses "immigrants and sojourners" in Europe with "Korean migrants in Japan" -- when, in fact, the "Korean migrants" she speaks of were Japanese when they migrated within Japan -- from Chosen, one part of Japan, to the Interior, another part of Japan.
Kashiwazaki adopts all the dubious English conventions when talking about "Japan proper" and "Korea" -- speaking of the former as a "metropole" or "metropolis" and the later as a "colony". Such highly politicized terms fail to illuminate the nature of the legal distinction between Chosen and the prefectures under imperial law.
Kashiwazaki describes the origin of the Korean population in Japan today more accurately than most writers. However, she imputes the start of the mobilization of Chosenese and other imperial subjects to the wrong war (page 20, notes omitted, bold emphasis mine).
There are numerous passages like this in which Kashiwazaki gets things half right and half wrong. In fact, the mobilization of laborers from Chosen to the interior -- partly voluntary, partly forced -- began over three years before the beginning of the Pacific War and peaked before the attack on Pearl Harbor.
1938 State General Mobilization Act
The State General Mobilization Act (国家総動員法 Kokka sō dōin hō), which facilitated migration for labor and other reasons within the empire, was promulgated on 1 April and enforced from 5 May 1938 (Law No. 55). This act paved the way for numerous related measures, including the following ordinance.
1939 National [Labor] Conscription Ordinance
The National [Labor] Conscription Ordinance (国民徴用令 Kokumin chōyō rei), which authorized compulsory recruiting, was promulgated on 8 July 1939, enforced in the Interior from 15 July, and in Chosen, Taiwan, Karafuto, and the South Sea Islands from 1 October (Imperial Ordinance No. 451). Military personnel, military academy students, some civilian employees of the military, medical care personnel, veterinarians, seaman, and incarcerated persons.
By the time Japan attacked Pearl Harbor, over fifty (50) percent of the roughly 1.3 million Chosenese who migrated to the interior after mobilization began in 1939 -- when corporations were permitted to freely recruit Chosen subjects -- had already migrated.
Not only was the mobilization inspired mainly by the war in China that had started in 1937 and rapidly spread from 1938 -- but, after Pearl Harbor, there was a marked decrease in the rate of labor migration from Chosen to the interior.
While this does not change the fact that Chosen became a labor pool for the Interior, it changes our understanding of the causes of labor mobilization -- and of the origin of the population of exterior subjects who remained in the prefectures after World War II, which Kashiwazaki overlooks or distorts. For most of those who remained were those who had freely migrated to and settled in the prefectures.
Kashiwazaki finds concern about "ethnic homogeneity" under every stone of family and nationality law administration in the Empire of Japan. Here is a typical example of how she imputes sinister motives to normal legislative procedure (page 21, bold emphasis mine).
Mizuno 1996, Mizuno 1997
Kashiwazaki's "Mizuno 1996" and "Mizuno 1997" attributions are to printed versions. The following titles come from versions posted on Mizuno's website. She shows only the main title in Japanese, and incompletely translates it "The Stipulation of the Suspension of Voting Rights Held by Resident Koreans and Taiwanese" -- leaving out "formation" and reducing "political participation rights" or "rights of suffrage" to just "voting rights".
The Japanese name of research organization geographically stretches its English name. In fact, the organization is one of many in Japan which focuses on local human rights issues. This one focuses on research related to (1) structures for protecting international human rights, (2) dowa [former outcaste community] problems, (3) human rights problems of settled aliens (定住外国人 teijū gaikokujin), connoting Japan-resident Koreans, and (4) human rights problems of women.
"Japanese proper" and colonized subjects
As for her remarks made about the location of household registers, Kashiwazaki paints only part of the picture -- and paints it upside down. And she oversimplifies Mizuno's very meticulous but sometimes convoluted analysis.
The boundaries between the subnations of the Empire of Japan -- the Interior (prefectures), Taiwan, Karafuto, and Korea -- had existed before Japan gained Taiwan, Karafuto, and Korea. Japan did not create these boundaries but immediately began to dismantle them. Legal assimilation accelerated after the start of the war in China, and legal integration commenced during the Pacific War.
Phrases like "those subject to the application of the Family Register Law" (戸籍法ノ適用ヲ受クル者 Kosekihō no tekiyō o ukuru mono) and "those not subject to the application of the Family Register Law" (戸籍法ノ適用ヲ受ケザル者 Kosekihō no tekiyō o ukezaru mono) had been used in prewar laws (in this case, the 1927 Military Service Law) to stipulate the extent of the law's application within the empire. The first 1943 revision of this law extended its application to "those subject to the Family Register Law or to the provisions concerning family registers in the Chosen Civil Matters Decree" (戸籍法又ハ朝鮮民事令中戸籍ニ関スル規定ヲ受クル者). A second 1943 revision dropped this phrase, making the law applicable to all imperial subject males of ages 20 to 40.
"Japanese proper" is an improper, often racilialized Anglicization of 内地人 (naichijin) or "interior persons" -- imperial subjects whose family registers were affiliated with prefectural municipalities. "Colonized subjects" is a political term with no currency in Japanese law, past or present.
Legally, the Interior (内地 Naichi) continued to exist in Japanese law after Japan surrendered in 1945, and it continues to exist today in consideration of legacy matters. After Japan's surrender, the Allied Powers reduced the Empire of Japan to just "Japan" concisting of the Interior (which the Allied Powers had called "Japan proper") minus a number of its integral territories, including Karafuto and the Chishima islands, and the Ryukyus and a number of other islands. Korea (Chōsen) and Formosa (Taiwan) were also provisionally separated from Japan as a sovereign entity. Accordingly, for repatriation purposes, the Supreme Commander for the Allied Powers (SCAP) directed the Japanese government to treat "Koreans, Chinese, Ryukyuans and Formosans" were treated by Japanese" as "non-Japanese".
These new political and demographic "boundaries" were drawn by the Allied Powers, not by Japan. The provision to limit rights of suffrage to "those subject to the application of the Family Register Law" may have come from earlier laws. But it also reflected the definitions of "Japan" and "Japanese" that had come to prevail in Occupied Japan.
Mizuno, himself a scholar-publicist for the legal rights of Koreans in Japan, concludes that Taiwanese and Chosenese residents in the prefectures lost their rights of suffrage because of "political and security policy viewpoints" and not because of "legal logic" (Mizuno 1997, conclusion). However, Mizuno also relates legal arguments (though he does not think them "logical") for suspending the rights of suffrage of imperial subjects of lost territories, and otherwise treating them as aliens, until their status was clarified by treaties (Mizuno 1996, 1997).
The "legislation" Kashiwasaki refers to was a revision of the House of Representatives Election Law. The law was not revised on account of "Koreans" in Japan but to give women rights of suffrage and to lower the ages of eligibility to vote and hold office.
Naturally the revision had to address the question of eligibility of Japanese who were residing in prefectures but did not have prefectural registers. A 13 October draft had an article which provided that Taiwanese and Chosenese residents of the Interior -- meaning Japanese whose registers were in Taiwan or Chosen -- would also be eligible, as they had been. By the time the revision bill was passed by the Diet on 17 December 1945 (Law No. 42), however, this article had been dropped, and the stipulation cited by Kashiwazaki, from Mizuno, had been added in a supplementary provision.
The disfranchisement of Taiwanese and Chosenese residing in the prefectures can be criticized as a violation of their "human rights" in view of the fact that they were still Japanese nationals. However, the political milieu encouraged many lawmakers to regard their nationality status and rights of suffrage as things to be put on hold.
Afterall, Japan's sovereignty had been put on hold -- and SCAP, which exercised sovereignty over Japan in lieu of the emperor, was busy redrawing Japan's postwar geographic and demographic boundaries. While the election law was being revised, SCAP was excluding Taiwan, Chosen, and some other territories from "Japan" -- and was also excluding their affiliates from "Japanese" for Occupation purposes. Thanks to SCAP, "Formosan-Chinese" and "Koreans" were now "liberated peoples" of uncertain legal status.
The political logic of law
Kashiwazaki, like Mizuno and Ōnuma, fault the Japanese government for treating Taiwanese and Koreans as aliens while acknowledging that, until treaties decided otherwise, they were still nationals of Japan. Their own "legal logic" is derived from idealized "European experiences" and "contemporary international norms" -- but real-world law invariably has its own logic, as it did in the relationship between the United States and the Philippines.
When Japan began to alienate Taiwanese and Koreans from its nationality -- with SCAP's tacit approval, since SCAP had ordered Japan to exclude such "liberated peoples" from the category of "Japanese" for Occupation purposes -- the United States was treating Filipinos as "aliens for the purpose of immigration" -- even though, as citizens of the Republic of the Philippines, which was still under US protection, they were nationals of the United States.
In other words, legal status is a matter of actual law, not logic, much less human rights. And law is what authorities, for whatever political reasons, determine it should be.
Source: "Contributors" (Ryang 2000:viii).
Chikako Kashiwazaki received a Ph.D. in sociology from Brown University and teaches at Sophia University in Japan. Her dissertation examined stability and change in Japanese nationality and citizenship laws from a comparative-historical perspective. Her articles are published in Research in Political Sociology and International Journal of Comparative Sociology. She is currently conducting research on the historical dynamics of citizenship and nationality, immigration and ethnicity, and nationalism.
|Ko Swan Sik (editor)|
Nationality and International Law in Asian Perspective
The is the most valuable single source in English related to nationality in Asia with a focus on laws between the 1940s and 1980s. Some contributes are more dated than others, and their objectivity and quality is uneven. There are chapters on Bangladesh, China (Taipei), India, Indonesia, Japan, Korea, Malaysia, Philippines, Singapore, and Thailand -- which leaves a lot of Asian countries uncovered.
Mackie's discussion of "citizenship" as a term related to rights and duties of participation in society -- which is as it should be. Here I will address only her comments on "nationality" as related to the comments Mackie makes about "nationality". Her discussion of "citizenship" as a term related to civil status defined by Japan's Nationality Law. I will also comment on occasion remarks she makes about family registers.
Nationality Law revision
Mackie correctly attributes the revision of the Nationality Law in 1984, effective from 1985, to the need for Japan to revise laws that discriminated against women, in order to comply with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (Mackie 2003, pages 178-179. 190-192). As she says, Japan signed the convention in 1980, and would have to ratify it by 1985, and so had five years within which to comply. More specifically, the convention was adopted by the United Nations in December 1979, opened for signing in March 1980, signed by Japan on 17 July 1980, and ratified by Japan on 25 June 1985.
Nationality Law campaigns
Mackie is weaker in her description of the campaings to revise the Nationality Law. Under "Nationality and gender" in Chapter 8, Action, she writes this (Mackie 2003, page 191, underscoring mine).
the focus of campaigns by the Asian Women's Association, which had been formed in 1977The name of this group in Japanese was アジアの女たちの会 (Ajia no onna-tachi no kai) -- "Association of women of Asia". Most of its members were Japanese women with moderately to radically socialist leanings, and rescue fantasies -- Japanese women concerned with the plight of the women of "Ajia" (アジア) -- used in its typical contemporary sense to denote Asian countires other than Japan -- hence the groups early focus on women in Korea, Taiwan, and Southeast Asia -- and such women in Japan -- how such women had been victimized by Japanese imperialism, Japanese enterterprises, Japanese men, and even at times by Japanese women -- et cetera. The group had very little interest in "Japanese women" accept those its members regarded as contributors to discrimination against "Ajia no onna-tachi" -- and, of course, Japanese women who supported the "struggles" of their "Asian sisters".
Mackie details some of the activities of the Asian Women's Assocition (Mackie 2003, pages 201-203), but does not talk about its principal publicity organ -- "Asian Women's Liberation" (アジアと女性解放 Ajia to josei kaihō) -- to which yours truly subscribed to from the premier issue. The first six issues were devoted to the struggles of "Asian women" past and present. Issue 7 was uncharacteristically devoted to 女と国籍 (Onna to kokuseki) -- "Women and nationality". I say "uncharacteristic" because the issue centerned on nationality and women in Japan -- not women in "Ajia". The cover featured a map of Japan and an image of Articles 1 and 2 of the 1950 Nationality Law. 父が (chichi ga) -- "father" -- editorially crossed out in favor of 父または母が (chichi mata wa haha ga) -- "father or mother" in paragraph 1 of Article 2, implying an "ambilinal" rather than "patrilineal" principle for acquisition of Japanese nationality at time of birth.
Issue 7 was dated October 1979 -- a year after publicity had already been generated by two nationality law suits filed against the Japanese government, one by my family -- me, my then wife, and our unregistered daughter, who was born in November 1978. We filed our lawsuit the next month. Another couple and their stateless daughter had filed a slightly different nationality law suit in 1977. Their case was being litigated by the same group of attorneys, and we shared some common legal resoruces, but its plaintiffs discouraged publicity.
My point is that Mackie's account of the "campaigns" to revise the Nationality Law appears to be contrived around impressions based on what she gathered from her studies of feminist movements generally. She wasn't there, and she doesn't appear to have compensated for her lack of eyewitness credibility by investigating the complexities of the various late-1970s, early-1980s movements to revise the Nationality Law -- which would not have been easy to do.
Mackie is generally right about Doi's reputation as a politician closely associated with the parliamentary actions that led to the 1984 revisions effective from 1985. However, she gives no particulars, so who knows what she knows or doesn't about Doi's involvement.
Character of Nationality Law
Mackie -- like many writers -- doesn't quite understand the workings of Japan's Nationality Law past or present. This is what she writes about the law in the same "Nationality and gender" section (Mackie 2003, page 191, underscoring mine).
Nationality in Japan is based on the principle of jus sanguinis (bloodline), and the postwar Nationality Law only allowed for nationality to be passed from father to child. Thus, in the case of international marriage, if the father was Japanese, the children could obtain Japanese nationality. If the mother was Japanese, the child would be expected to take the nationality of the father.
Nationality in Japan is based on the principle of jus sanguinis (bloodline), and the postwar Nationality Law only allowed for nationality to be passed from father to child Japan's nationality laws -- both the 1899 Nationality Law (old law) and the postwar 1950 Nationality Law (current law) before 1985 -- also made provisions for acquiring nationality through the mother (matrilineal jus sanguinis) or through birth in Japan. Strictly speaking, nationality is not "passed" from a parent to a child, but "acquired" by a child who meets qualifications determined by the state. Qualifications vary from having a Japanese parent regardless of where one is born, to being born in Japan to unknown or stateless parents. Conditions are also placed on the whether the Japanese parent recognizes the child in a timely manner -- and the need to recognize is not limited to fathers.
Mackie continues in this vein (Mackie 2003, pages 191-192, underscoring mine).
This issue [of nationality through the father in cases of international marriage] was highlighted by cases of stateless children. Some children were stateless because their mother was unable to pass on Japanese nationality, and the father was unknown, refused to acknowledge the child or was unable to pass on his nationality. In the 1970s and early 1980s, this issue was most apparent in Okinawa, in relationships which developed around the US bases between local women and US military personnel. Such relationships occurred in any place where US tropps were stationed but were particularly apparent in Okinawa, which hosted a disproportionate number of the US facilities in Japan.
This issue was highlighted by cases of stateless children Not true -- if by "highlighting" Mackie means that cases of stateless children were statistically more prominent. Nor is it true if Mackie means that cases involving stateless children dominated the news. In fact, such cases were rare. Some got a certain amount of play in news coverage, mainly on account of activities by publicists in Okinawa. But most newspaper and television coverage -- when they weren't sidetracked by irrelevant issues of "race" and "ethnicity" -- focused on the fundamental legal issue -- which had nothing to do with statelesness. Statelessness was merely an artifact of the effect patrilineality as a primary criterion for nationality. The essential legal issue was the manner in which the Nationality Law discriminated between Japanese men and women -- and the discrimination between children fathered by Japanese men married to an alien and those of Japanese women married to an alien. The issue centered on the inability of the children of Japanese women married to an alien to acquire Japanese nationality through their mother -- on an equal footing with the children of Japanese men married to an alien, who were able to acquire Japanese nationality through their father.
stateless because their mother was unable to pass on Japanese nationality, and the father was unknown, refused to acknowledge the child or was unable to pass on his nationality Again, no one who possesses Japanese nationality "passes on" their nationality. Nationality as a legal status is acquired from the state, not from a parent. More importantly -- if the mother was married to the father, then the father could not have been unknown. A child's father is legally "unknown" only if the mother is single. Under Japan's Nationality Law, even before its revision, the child of an unmarried Japanese woman became Japanese, even if the biological father of the child was an alien. Matrilineality also applied in the case of a child of a Japanese woman married to a stateless alien.
this issue was most apparent in Okinawa, in relationships which developed around the US bases between local women and US military personnel The issue of statelessness was commonly described in mass media as an Okinawan problem, and as a problem related to the presence of US military bases and relationships between "local women" and US military personnel. Okinawan publicists for stateless "Amerasian" people never raised a law suit -- and would not have gotten very far with the sort of arguments that linked statelessness to military bases and relationships between "local women" and GIs. This position is a strictly political -- not a legal -- position. Statelessness occurs for many reasons. The stateless case that ran with our case involved an American man who was originally a stateless White Russian before he naturalized in the United States. He had never been in the military and had no connections with US forces in Japan. Yet his daughter did not qualify for Japanese natinoality on account that he himself had a nationality. Mackie appears to have bought into the same line of radical political advocacy that survives in a lot of writing today. The broader issues become lost in the fog of misinformation.
Mackie concludes her discussion under "Nationality and gender" by drawing attention to the need for the Japanese father of a child born to a non-Japanese mother to "give official acknowledgment (ninchi)" of the child for it to receive Japanese nationality (Mackie 2003, page 192). Contrary to what she writes -- that the need for paternal recognition had "become an issue in the 1990s, with increased numbers of immigrant workers living in Japan, forming relationships and bearing children" -- it had been a problem all along -- not only in Japan but overseas. Nor was the real problem actually an "ackowledgment" problem.
In the "Women's refuges" section of the next chapter -- Chapter 9. Difference -- Mackie returns to the so-called "acknowlegment issue like this (Mackie 2003, pages 208-209, underscoring mine).
immigrant women . . . Department of Immigration Australia has a "Department of Immigration " -- more fully now "Department of Immigration and Border Protection" -- but Japan has only an "Enter-country control bureau" (入国管理局 Nyūkoku kanri kyoku) whose mission is misrepresented by the usual English translation -- "Immigration Bureau". The bureau enforces the "Exit-enter-country control and refugee recognition law" -- misrepresented in standard English translations as the "Immigration Control and Refugee Recognition Law". It is essentionally a border control law that applies equally to Japanese and aliens leaving and entering the country. Neither the law nor the bureau recognize "immigrants". There is no such animal in Japan. The "immigrant women" in Mackie's drama are mostly women with non-permanent statuses of residence subject to periodic renewal. Except for those with a "long term" status (which also needs to be renewed), they have visas which limit their activities.
regularise the nationality status of their children Whatever this means.
In order for the child of a Japanese father and non-Japanese mother to receive Japanese nationality, it is necessary for the father to give official acknowledgment (ninchi) of the child If the father is married to the child's mother, Japanese law considers the child his. So long as the birth is notified -- at a municipal hall if born in Japan, at a Japanese consulate if born overseas -- the child will be registered in the father's family register, which will show that he is married to the child's mother, and therefore be Japanese. Mackie is probably referring to cases in which a Japanese man has fathered a child with an alien woman to whom he is not married. Or he has married her outside Japan and failed to notify the marriage to a Japanese consulate or, later, to a municipal hall in Japan.
Note 30 A typical note that tells us nothing -- except that Mackie has edited a book on feminism which includes the article by the women she cites as an authority on Japan's Nationality Law. But who would know this from the title of the article. The note also tells that Mackie has read a book in Japanese, the title of which means "The baggage of a long journey" -- which may or may not be about the Nationality Law. Since Mackie has made a statement about the operation of Japan's Nationality Law, my question would be -- why has she not cited the law?
Mackie cannot cannot resist talking about "Sisters in Okinawa" who continue to suffer the indignities of sexual attention on the part of US military personnel, and the "Militarized memories" of "military brothels and the rape of civilian women" that continue to feed the fires that burn between Japan the Republic of Korea and the People's Republic of China. And under "Degrees of diaspora" in the chapter on Difference, Mackie makes this statement about the conditions of "Korean and Taiwanese communities" in Japan (Mackie 2003, page 220, underscoring mine).
Korean and Taiwanese communities The use of "communities" defies the fact that Koreans and Taiwanese in Japan generally do not collect in actual or virtual "communities" -- and constitute "groups" only as "cohorts" of breakdowns of Japan's population by nationality.
descendants of those who migrated to Japan during the colonial period Not all are descendants -- some are those who migrated. And they didn't migrat to Japan but within Japan -- as "Japan" included Taiwan (which became part of Japan in 1895) and Chōsen (as "Korea" was called after it was annexed by Japan in 1910).
Note 69 (page 230) During the colonial period . . . although resident in Japan The facts are rather different.
Invisible Immigrants: Undocumented Migration and Border Controls in Early Postwar Japan
Revised and expanded version
Japan Focus <www.japanfocus.org>
The following review is based on both versions.
Citations were lifted from the Japan Focus version. I added text which had been deleted from the JSS version, marked the added text with
Morris-Suzuki attempts to fill in some of the "linguistic holes" that the words of "historians and social scientists" leave when they "weave words together like nets to catch the truth". She does in fact fill in some of the interstices left by "countless texts on Japan's economy and society" that have oversimplified the migration of labor to Japan from Korea after World War II.
She admits her own earlier assumptions that "immigration to Japan occurred in two distinct waves: one during the colonial period up to 1945, and the other beginning around 1980". She confesses that too "unquestionly accepted the notion that the years from 1945 to the last quarter of the twentieth century constituted a 'blank space' in the history of immigration to Japan" (JJS, page 120; Note 6: For example, Tesa Morris-Suzuki, Re-Inventing Japan: Time, Space, Nation (New York: M. E. Sharpe, 1998), pp. 175-76).
She tosses, shovels, and dumps all manner of material into the gap -- including stories related by illegal entrants, and facts and figures from a wide variety of sources, and original and borrowed opinions. Rich in detail and spiced with Morris-Suzuki's trademark analysis and critique of conditions in Japan for aliens and other minorities, this article is a valuable contribution -- despite a number of flaws that are common to her articles and others of their kind.
I have organized my comments under the following headings.
Migration from Korea
Morris-Suzuki focuses on migration to Japan from Korea. She delimits the scope of her observation like this (JJS, pages 121-123).
Most of the problems with the manner in which Morris-Suzuki has executed the above graphs are common to all her writing about what she calls "Japan" -- which is often a misrepresentation of Japan.
Morris-Suzuki mixes a lot of metaphors.
migrant workers, emigration, entry, rural-urban migration, emigrants, outflow of people, international migration, migration boom, immigration, migrants who entered Japan,migration from Korea, postwar immigrants, migratory flows, entry of Taiwanese and Chinese migrants, migration regime, Japan's immigration policy
from Japan, within Japan, to the colonial empire and beyond
"Koreans, Chinese and others"
Chinese and Taiwanese residents
repatriation of Japanese. repatriation of Taiwanese and Chinese residents
under US occupation until 1972
Occupation of Japan
Regarding "separate occupation regimes" Morris-Suzuki writes this (JJS, pages 126-127).
Many details in this description are simply out of focus.
The Allied Powers were under the command of General MacArthur. His title was Supreme Commander for the Allied Powers (SCAP). His General Headquarters were located in Tokyo.
SCAP's jurisdiction included "Japan" as defined for Occupation purposes, but also extended to Korea south of the 38th parallel until XXXX.exercised control throughout what was known as the but a position held by General MacArthur. SCAP's General Headquarters (GHQ) was in Tokyo.
The Nansei Islands including the Ryukyu islands (Okinawa) and some islands affiliated with Kagoshima prefecture, and also some island groups affiliated with Tokyo prefectures, were separated from "Japan" for Occupation purposes and placed under a United States Military Government. By December 1950, Okinawa was being administered under a civiliam arm of the USMG called United States Civil Administration of the Ryukyu Islands (USCAR).
The Allied Occupation of Japan, including Okinawa, ended on 28 April 1952. As a result of terms agreed to in the San Francisco Peace Treaty, the United States continued to oversee the administration of Okinawa and some other territories under a United Nations trusteeship while recognizing that Japan possessed residual sovereignty over these territories. This arrangement was not an "occupation".
"through a Japanese administration"
SCAP did not exercise control "through a Japanese administration". The Japanese government -- the emperor, the cabinet, the diet, the ministries and agencies -- continued to govern Japan pursuant to the 1890 Constitution and then the 1947 Constitution and all laws that continued to operate -- subject to SCAP's authority and direction.
"Japan was divided into two parts"
Since the sovereign territory of the Empire of Japan included Taiwan, Chosen, and the Interior -- which inlcuded Karafuto and the Kuriles -- and since Japan also had internationally recognized legal control and jurisdiction over the South Sea Islands and the Kwantung Leased Territory, Japan was divided into many parts.
The Interior of Japan -- the prefectures -- were divided into three territories. Karafuto, a prefecture, and the Kuriles, which were part of Hokkaido prefecture, were invaded and occupied by the Soviet Union.
A section titled "The Language of Invisibility" begins with these three graphs (JJS, pages 123-124).
Morris-Suzuki is in the habit, as seen here, of citing figures in secondary and tertiary sources to make her points -- rather than cite original statistics reports. Here she uses figures from two different sources to compute her own percents.
"foreigners in the Japanese population"
She speaks of "foreigners in the Japanese population" -- which is odd -- since foreigners are not Japanese. Demographic surveys in Japan generally yield three figures -- Japanese, aliens, and total. Two kinds of surveys are conducted: surveys of registration data, and census surveys of households.
I can reproduce Morris-Suzuki's figures only by calculating the percent of "total registered aliens" as a ratio to "total census population". Not only has she misrepresented "total population of Japan" as "total Japanese population" -- but she has mixed registration data with census data -- which are are not the same measures.
The following figures are my compilations of from national census and alien registration reports. The percentages reflect my calculations.
It is not my object here to explain the disparities and anomalies apparent in the above set of demographic data -- but they demand at least an attempt to explain them -- and any such attempt will greatly complicate Morris-Suzuki's expedient brushing off of official statistics.
"most immigration to Japan"
There has been no "immigration" to Japan -- legal or illegal -- because Japan has never granted "immigration" visas. There are only "entrants" -- a term which applies to both aliens and Japanese who enter Japan. One can speak of "migration" across borders in terms of entry and departure. That's about it.
However -- taking Morris-Suzuki at her word -- is it really true that most entry, sojourning, and settlement in Japan has been "undocumented 'illegal' entry?
Had she examined longitudinal changes in alien registration data by nationality, she would have observed the following trends -- which seriously disupute claims like -- "postwar Japan was characterized above all by its lack of international migration at least until the 1980s" . . . "Immigration during the years from 1945 to the late 1970s is wholly missing from this story" . . . "migration from Korea . . . was by far the largest source of postwar immigrants" (JSS, page 122, see fuller context above).
The following table allows comparision of growth rates of the alien registration figures for all aliens and for categorial Koreans and Chinese, from 1950 to 1980, plus 1985. The census population figures for Japanese only are shown for comparison. Japan carries out a national census every five years. Japanese resident registration and alien resident registration figures are reported annually.
The Japanese census population increases about 40 percent from 1950 to 1980. The total registered alien population increases by about 30 percent. The Kankoku/Chosen cohort increases by about 20 percent, but the Chugoku cohort increases by about 30 percent.
Had the Korean population of 1950 increased by 30 percent, it would have been about 708,000 in 1980 -- about 44,000 more than the received figure. But 708,000 is much too low to account for the negative population factors during the period.
102,455 Koreans were permitted to naturalize between 1952 and 1980. Not all were still alive at the time the 1980 census was taken, but assuming they had not naturalized, and that about 80 percent had survived, the 1980 Korean population would have been larger yet by perhaps 80,000. (The Chinese population would also have been somewhat higher had a guesstimated 20,000 Chinese not naturalized during the same three-decades.)
By the same reasoning, the Korean population would have been larger by perhaps another 60,000 had "the exodus of over 70,000 Koreans in the years 1959 to 1961" to the Democratic People's Republic of Korea not taken place.
This means the 1980 registered Korean population would have been larger than the received figure by around 150,000 -- which means the 1980 figure would have been roughly 815,000 or about 50 percent higher than the 1950 figure. This would be even higher if there had not been a natural decline or attrition resulting from the acquisition of Japanese nationality by the children of Korean women married to Japanese.
Something is obviously odd -- neither steady nor stable -- about the especially the Korean data -- whether examined in 1970 or 1980 in comparison with 1950.
While Morris-Suzuki is right to point out that some people slip through port-of-entry and municipal registration tallies, she needs to consider a much longer list of variables than she does -- in her rush to disparage the credibility of government data, apparently in order to justify her own haphazard and expedient use of statistics gleaned mostly from secondary sources.
The following table is a continuation of the above table, showing the growth of other nationalities of registered aliens in Japan between 1950 and 1985.
Japan usually ranks its alien registration stats in the order of the countries of nationality with higher numbers of nationals in Japan. Here I have ordered the countries according to their ranking as of 2006. From 2007 Chinese outranked Koreans. From the 1980s, the US is rapidly overtaken by the Philippines, and then Brazil and Peru, while Brazil overtakes the Philippines.
Once PRC nationals begin to migrant to Japan in growing numbers, they rapidly overtake everyone, including Koreans. The Korean figure represents a rapidly declining component of pre-end-of-war resideents and the their postwar offspring, and an increasing number of new Korean entrants.
The new-entrant components of the Korean and Chinese populations can be estimated by examining changes in status of residence statistics. Pre-end-of-war residents and their postwar offspring generally have different statuses -- now mostly Special Permanent Residence.
The table clearly shows an exponential increase in the numbers of aliens in the listed categories other than Koreans and Chinese. Very roughly speaking, the populations double from 1950 to 1960, double again from 1960 to 1970, and significantly increase though at a slower rate from 1970 to 1980 -- after which the inflow of new entrants accelerates for practically all nationalities.
The most conspicuous exception during the 1970s is the increase in Filipinos -- which jumps to 2,250 in 1972 largely because of the reversion of Okinawa to Japan -- then continues to dramatically increase.
The increase in the Filipino population is partly, but far from entirely, related to "the Japanese sex industry" -- no more than the concurrent increases in aliens of other nationalities were driven by the demand for alien sex workers in Japan -- though of course sex workers increase, more among some nationalities than others. Aliens of all nationalities come to Japan for many reasons, and the vast majority are not objects of exploitation.
The return of Okinawa to Japan's sovereign fold also accounts for the leap in stateless aliens in 1972 to 9,268. This figure quickly fell below the 3,000 plateau by 1975.
Morris-Suzuki -- referring to third-party sources rather than testifying from the standpoint of having examined and analyzied the statistics herself -- remarks that "the post-1980 migration boom was prefigured by an inflow of female workers to the Japanese sex industry which began in the second half of the 1970s" (JJS, page 122, see fuller context above). But clearly there is much more migration into Japan than she is aware of or wishes to acknowledge -- depending as she does on the work of other researchers who focus on the same "victim" cohorts as she does.
Morris-Suzuki correctly observes that "it is impossible to provide accurate statistics of migrants who entered Japan between 1946 and the late 1970s" -- then speculates -- "but it seems clear that they numbered at least in the tens of thousands, and possibly in the hundreds of thousands" (JJS, page 122).
The data and testimony she presents on detentions and arrests of illegal entrants and official estimates substantiates a guesstimate of 100,000 "invisible" illegal aliens plus or minus a few tens of thousands as of the late 1970s (JJS, page 135). But during the decades between 1950 and 1980, several times this number of aliens openly and legally entered Japan and sojourned or settled -- and were otherwise quite visible in both census and alien registration counts, flawed for all the reasons such statistics inevitably are.
"children born in Japan to foreign fathers"
Morris-Suzuki's statement is typical of the offhand remarks she makes about the operation of nationality laws in Japan. A child is born to its mother, not to its father. Under Japanese nationality laws past and present, the child of an unmarried Japanese woman has become Japanese regardless of the status of the father. Before 1985, only children born to a Japanese woman who was married to a foreigner would not have become Japanese.
"undocumented 'illegal' entry"
Morris-Suzuki habitually equivocates when it comes to the word "illegal". Apparently she cannot accept the legal fact that entry into Japan other than according to the law is illegal -- in addition to being undocumented.
However, she does not seem to recognize that, in addition to illegal "invisible" existence in Japan, there is also illegal "visible" existence in Japan. Illegal entry may end in illegal "visible" existence, and legal entry may end in illegal "invisible" existence.
Illegal entrants who are motivated to legitimize themselves will register using falsified documents. This is much more difficult to do today, given the computerization of both port-of-entry and alien registration records using passport numbers and related data as keys to link port-of-entry and alien register databases. But registration using forged documents was relative easy in before the computerization of records.
Legal entrants who are motivated to go underground will avoid registration. They, too, are likely to acquire forged documents to facilitate certain aspects of "legal" life short of registering as aliens or otherwise risking exposure of their illegality.
Agreement Permanent Residence
Morris-Suzuki says this about "treaty permanent residents" and Koreans she believes "remained stateless" (JJS, page 133).
Of course individuals had to apply because all legal actions involving changes of status require notification or application. And of course Agreement Permanent Residence was available only to qualified ROK nationals because the agreement was between Japan and ROK, and ROK has no standing in the legal status of non-ROK nationals.
"the only people eligible to apply"
More importantly -- Morris-Suzuki appears not to have read the "Agreement between Japan and the Republic of Korea concerning the legal status and treatment of nationals of the Republic of Korea residing in Japan" "Japanese Treaty No. 28 of 1965, ROK Treaty No. 164) -- signed in Tokyo on 22 June 1965 and effective from 17 January 1966. ROK and Japan signed many instruments in the process of normalizing their relationship in 1965. The most important, for most ROK nationals in Japan, were the normalization treaty and the status agreement.
"Agreement Permanent Residence" (not "Treaty Permanent Residence") was extended to ROK nationals residing in Japan from on or before 15 August 1945 -- and to their lineal descendants born on or after 16 August 1945 -- as follows (my translation).
That qualified ROK nationals were required to apply is a matter of course -- not only because personal particulars would have to be vetted, but also because any change of alien status of residence can be effected only upon receiving permission from the Ministry of Justice. Not only did qualified individuals have a choice to apply or not within five years, but the five-year window also allowed time for Chosenese who might otherwise have qualified to acquire ROK nationality and apply.
While normally permission for acquisition or change of alien status of residence is discretionary, the status agreement clearly mandates approval of an application from a qualified person. This mandate is more strongly stipulated in the "Special immigration law to implement Japan-ROK status agreement" (Law No. 146 of 1965) -- promulgated on 17 December 1965 and enforced from 17 January 1966.
Morris-Suzuki seems imply that Koreans who to be saying that Koreans who were affiliated "South Korea" or identified with "North Korea" were stateless. However, Japan has recognized only Republic of Korea, and hence only ROK nationality has legal standing in Japan. All who remain "Chosenese" as a legacy status are precisely and only that -- "Chosenese".
No Chosenese is recognized as a national of the Democratic People's Republic of Korea simply because they "identify" with DRPK. No Chosenese is "stateless" simply because they identify with neither ROK nor DPRK.
Morris-Suzuki is in the habit of citing faulty secondary and tertiary sources by way of unscoring her claims about legal status. Sonia Ryang makes makes these statements in the article cited by Morris-Suzuki (Sonia Ryang, "Resident Koreans in Japan", page 4, in Sonia Ryang, editor, Koreans in Japan, London: Routledge, 2000, pages 1-12).
Ryang's characterization is given to inaccuracy and exaggeration. The vast majority of Chosenese in "Japan" as defined by the prefectures -- except the few who have never registered as residents and have therefore been invisible to government bean counters -- have always had civil status in Japan. While their status changed during the Occupation, and again after they lost Japanese nationality in 1952, they have always had status and standing under Japanese law.
Loss of Japanese nationality did not render Chosenese "stateless". On the contrary, Japan has always viewed Chosenese as affiliates of "Chosen" -- the entity to which it abandoned all rights and claims in the San Francisco Peace Treaty. From Japan's viewpoint, Chosenese lost their Japanese nationality because Chosen ceased to be part of Japan's sovereign dominion, which meant that Chosenese were no longer affiliated with Japan's demographic territory or "nation" and therefore no longer qualified to possess Japan's nationality.
Morris-Suzuki added "citation from" to note 42 in the Japan Focus version. But Ryang makes no reference to "Korea as a whole" on page 4.
In the context of a divided Korean peninsula, however, "Korea as a whole" would be a suitable gloss for "Korea" as referred to in English versions of legal instruments related to the territorial status of what in all Japanese versions is called 朝鮮 (Chōsen). That Chosen became two states -- which were at war when the San Francisco Peace Treaty was signed in 1951, and were still at war when the treaty came into effect in 1952 -- created a host of problems that continue to leave Chosenese in Japan without a recognized nationality -- but this does not mean they are stateless.
Japan has never classified Chosenese, after their loss of Japanese nationality in 1952, as stateless. They have always been conflated with ROK nationals in alien registration statistics, since it is presumed they are either latent or potential nationals of the Republic of Korea, or are nationals of "Chosen" -- i.e., "Korea", i.e, "Korea as a whole" -- which, as an entity, exists only as a "ghost" or "legacy" of the territory of Chosen when part of Japan -- a phantom "state" that has no government.
It is possible to describe Chosenese as "de facto stateless" because their "Chosen nationality" is affiliated with an illusionary state. But they are not "de jure stateless". Japanese Supreme Court decisions have recognized that Chosenese have "Chosen nationality".
Immigration control functions
Morris-Suzuki writes this about the agencies which oversaw "immigration control functions" (JJS, page 137).
Morris-Suzuki's description of the origin, evolution, and migration of "immigration control" in Japan is extremely loose.
From 10 August 1949, matters related to border crossing, meaning the entry and departure of all persons into and from Japan, other than Allied Powers military and Occupation Forces personnel and their families, were placed under the Ministry of Foreign Affairs (MOFA). From 1 October 1950, alien registration was also placed under the foreign ministry.
From 1 August 1952, when the Attorney General's Office was reconfigured as the Ministry of Justice, procedures for entering and exiting the country for Japanese and aliens alike, and alien registration matters, were placed under the supervision of the justice ministry.
The bureaucratic shuffling of agencies between 10 August 1949 and 1 August 1952 was rather convoluted. Here is approximately what happened (see "Legal Terminology" in the "Resources" section for fuller details).
Immigration Control Order
Morris-Suzuki says this about the Immigration Control Order of 1951 (JJS, page 138).
This passage contains the sort of misinformation that mars a number of other parts of this article.
"Migration Control Ordinance"
Morris-Suzuki cannot seem to decide if she is talking about a "migration control" or "immigration control" ordinance or law. What she calls the "Migration Control Ordinance of October 1951" in the JJS version she parenthetically qualifies in the Japan Focus version as "renamed the Migration Control Law after the end of the occupation" -- which is not true.
She is referring to the "Immigration [exit-and-enter-country] Control Order (Cabinet Order No. 319 of 1951), enacted on 4 October 1951 and enforced from 1 November 1951. This ordinance was given the efficacy of law from 28 April 1952 by Law No. 126 of 1952, promulgated and effective from 28 April 1952.
However, the title of the law was not changed until 1 January 1982, when the "Immigration Control Order" became the "Immigration Control and Refugee Recognition Law". Still, the law continues to be indexed as "Cabinet Order No. 319 of 1951".
It is anyone's guess what Morris-Suzuki means by "citizenship policy" since neither "citizen" nor "citizenship" are defined in Japanese law -- and she does not explain what she means by the expression in her article.
"unilaterally defined . . . as 'foreigners'"
There are two problems here. One, Japan did not "unilaterally" define Taiwanese and Chosenese as foreigners. GHQ/SCAP, and both the Republic of China and the Republic of Korea, were in a position to insist that Japan offer Taiwanese and Chosenese who had been in the prefectures at the end of the war and remained the option of continuing to be Japanese.
GHQ/SCAP left post-Occupation nationality issues to Japan. On the very day the San Francisco Peace Treaty came into force, Japan and ROC concluded a peace treaty -- which had been fully negotiated in advance of 28 April 1952 -- in which Japan recognized ROC's legal standing over the nationality status of anyone in Japan who had been affiliated with Taiwan under Japanese rule. Japan had also entered into negotiation with ROK, and while these negotiations did not bear much fruit until 1965, ROK made no attempt to pressure Japan -- directly or through the United States -- to offer anyone it considered its nationals or potential nationals the option to remain Japanese.
GHQ/SCAP had begun treating Taiwanese (Formosans) and Chosenese (Koreans) in "Japan" as "aliens" from the beginning of the Occupation. By the end of 1945 such persons were categorically "non-Japanese" for "repatriation" purposes. By 1947 they were categorially "aliens" for alien registration purposes. In most other respects they remained Japanese, but status as aliens under all laws from 28 April 1952 originated in partial alienation from the beginning of the Occupation.
Migrants, Subjects, Citizens:
Tessa Morris-Suzuki approaches history and social issues broadly and dynamically but with a patently ideological edge. This article is no exception. What she gains by breadth and movement across time and place she loses in the way she distorts facts with radical opinion.
Judging from the various ways she renders keywords like "naichi" and "gaichi", often in the service of present-day academic fashions, she does not believe that Taiwan and Korea were really parts of Japan during the imperial years. She also describes people at the time in present-day racialist terms like "ethnic Japanese" and "ethnic Korean" -- which have no foundation in Japanese law then or now.
Judging from her confusion of legal terms like "subject" and "nationality" with "citizen" and "citizenship", and words like "migrant" and "immigrant", she does not grasp -- or does not wish to take seriously -- the metaphors of Japanese law.
Her favorite words are "colony" and "colonial" followed by "imperial". "Imperial subject" has linguistic standing in Japanese law -- but "colonial subject" appears to be a morph of "exterior subject" if not another such side effect of her "colonialism" critique
Taking her title at its word, however, let's look at what Morris-Suzuki says about migrants, subjects, citizens, nationality, and related subjects.
I have organized my comments under the following headings, followed by a biographical note. As the received article is an electronic file, I do not show page numbers.
Morris-Suzuki defines "imin" like this.
"ideas, rules and institutions . . . marking the boundaries of national populations"
This statement turns out to be empty -- as there have been no significant changes in the "ideas, rules and institutions" that mark the boundaries of national populations.
"new and unforeseen problems . . . definition of nationality"
This statement, too, proves to be empty -- as the definition of nationality has not changed.
Japan as a "state" may have begun in 1868. And Japan as a fully competent state -- in the eyes of the Euroamerican states that defined the world of law then as they do today -- may have begun in 1899. But in 1868, Japan was an old, seasoned country whose boundaries had changed many times over the centuries. And Japan had all the "ideals, rules and institutions" it needed to define affiliation within the territories it presumed to rule.
Affiliation with dominions and domains in Japan has been defined by enrollment in registers under the control and jurisdiction of the territorial sovereign -- since the earliest accounts of such actions, going back to the middle of the first millennium. Registration in a family register, under a nationwide system introduced in 1872, was the customary law of "nationality" during the Meiji period -- right up to the adoption of the first Nationality Law in 1899. And this statute firmly rested, not only on family register affiliation, but also on the family law that governed status in registers and migration between registers.
Family registers were essentially territorial, and their essential territoriality determined the manner in which Japan nationalized new territories like Taiwan, Karafuto, and Korea as Chosen.
Population enrollment had always been the principal instrument of affiliating the inhabitants of newly defined or newly incorporated territories, whether municipalities or prefectures, or whether lands and inhabitants ceded to Japan in treaties with other states. Territorial registers were the means by which Japan nationalized affiliates of Taiwan, Karafuto, and Korea. And loss of sovereignty over these registers was the pretext for Japan to denationalize Taiwanese and Chosenese when the San Francisco Peace Treaty came into effect on 28 April 1952.
Morris-Suzuki imposes a rather alien set of "immigration" metaphors on her analysis of Japan. In part this stems from her desire to compare Japan with states like the United States and Canada, where "immigration" and related English terms have long been codified in laws that accommodated the migration of people from other countries who wished to work or settle in these states. But her use of "immigration" metaphors also stems from her insistence on treating Taiwan and Korea -- when under Japanese rule -- as though they were not really part of Japan.
The term "imin" (移民) originally referred to people who moved from one village to another with the purpose of resettlement, or such a movement. Later it was used to refer to people who ventured overseas to work if not also to resettle, or such a movement.
However, "imin" never actually means "immigrant" or "emigrant" but only "migrant" or "migration" -- as in expressions like "international migration statistics" (国際移民統計 kokusai imin tōkei).
The International Labour Organization (ILO) was established as an agency of the League of Nations by the Treaty of Versailles in 1919. Japan was one of its original members.
In 1922, the General Conference of the International Labour Organisation adopted a recommendation concerning the reporting of information to ILO, which bore the following title in English. The title was translated into the following Japanese title, which I have structurally back translated to reflect the metaphors of the Japanese expression.
"Imin" is used to mean "immigrant" only when translating terms like "immigration law (移民法 iminhō) or "immigrant visa / immigration visa" (移民ビザ imin biza) in reference to the laws and policies of other countries, such as the United States and Canada. Such terms have never had standing in Japanese law, which does not codify "immigration" or "immigrants".
The Japanese agency and law dubbed the "Immigration Bureau" and the "Immigration Control Law" are impositions of non-Japanese metaphors on Japanese terms that mean "exit-the-country" and "enter-the-country" as a matter of border control -- and do not themselves connote "immigration" or "emigration" in the common sense of these English words.
When used by a Japanese government agency in materials concerning 南米移民 (South America migrants) or 日本人移民 (Japanese migrants), "imin" would imply "emigrant". When used to refer to current social and legal issues, an expression like 移民社会 (migrant society) would mean "immigrant society" -- if the focus is on the impact of migrants who come from other countries to settle in Japan.
"migrants" and "immigrants"
Here is typical example of a passage in which Morris-Suzuki gets some things right, some things odd, and some things wrong.
"migrants in Japan"
When moving within a territory or between territories of Japan -- the Interior, Taiwan, Karafuto, Chosen -- Taiwanese and Chosenese were migrating within their own country and could be described as migrants -- never "immigrants". After settling in a new locality within any territory of Japan, they would be residents.
Morris-Suzuki uses "colonial" over fifty times and "colony" about half that. She cannot just refer to Taiwan and Taiwanese, and Korea and Koreans -- which are better understood as Chosen and Chosenese -- without qualifying the territories as "colonies" and their affiliates as "colonial" this or that.
She seems to have programmed herself to avoid wondering why Taiwan and Chosen, if "colonies", were being systematically integrated into the prefectural order. The political and social history of the Empire of Japan -- and the legacy issues that still affect the legal status of some people today -- are better understood by recognizing the fact that "Japan" was the sum of its sovereign territories -- the Interior, Taiwan, and Korea, and Karafuto until 1943 when it became part of the Interior -- and that "Japanese" embraces all people who were nationals of Japan, namely, Interiorites, Taiwanese, and Chosenese, and Karafutoans until 1943 when they became Interiorites.
While generally Morris-Suzuki uses "migrants" when talking about Taiwanese and Koreans, she sometimes qualifies them as "immigrants" within their own country -- Japan.
Morris-Suzuki confuses "migrants" within Japan with "immigrants" to Japan -- because she limits "Japan" to the Interior and regards Taiwan and Chosen as foreign entities.
Morris-Suzuki attempts to pull off a sleight of hand with affiliation statistics concerning "migrants from the Japanese colony of Taiwan in Japan".
Morris-Suzuki's arithmetic is fine but her math is odd. She says there were 31,000 Chinese still in the Interior in 1945, apparently remnants of 42,000 laborers brought during the war, and 28,000 Taiwanese in the Interior at the end of war. These two figures add to nearly 60,000.
Apart from the problem of why Taiwanese should be conflated with Chinese -- were there no other Chinese in the Interior at the time?
Morris-Suzuki cites Andrea Vasishth as the source of her figures. But Vasishth says something very different (page 131 in my edition of the book; I have shown Vasishth's in-line references to sources but not their particulars).
Vasishth has turned over a lot of stones to uncover facts and figures in her article on "the Chinese community" in Japan. However, she is not the best role model for descriptive accuracy. And Morris-Suzuki does things with Vasishth's figures that don't make sense even according to Vasishth's math.
Morris-Suzuki's figures come from Vasishth's article -- and she follows Vasishth's example of conflating "Taiwanese" with "Chinese" -- but Vasishth uses different figures.
It would appear that Vasishth's arithmetic is as bad as her math, for none of her figures add up to 34,000 in 1948. However, she clearly understands that there were other Chinese in Japan, in addition to the wartime laborers. And she knows about how many. For previously she had stated that "In 1930, there had been 30,836 Chinese in Japan, by 1938 this had fallen to 17,043" (page 129).
So Vasishth's 34,000 figure suggests that there were about 20,000 Chinese in addition to the 14,000 Taiwanese she says were in Occupied Japan as of 1948. This compares with head counts reported for 1947.
Taiwanese and Chinese in the Interior, 1920-1940
The 1920 and 1930 figures in the following table are from Kokusei chōsa hōkoku (Shōwa 5-nen, Dai 1-kan, Naikaku Tōkei Kyoku, 1935, p. 135, Minseki kokuseki betsu jinkō, Zenkoku). The 1940 figures are from other sources.
The sense of "minseki kokuseki betsu" was "by minseki/kokuseki". In the 1930 figures, "minseki" is broken down by "Interiorites" (Naichijin) and "Exteriorites (Gaichijin). In the following table, "exteriorites" embraces both Japanese nationals (Chosenese, Taiwanese, and Karafutoans) but also Japanese subjects who were not nationals (South Sea Islanders). South Sea Islanders were not Aliens (Gaikokujin) because the South Sea Islands, though not part of Japan's sovereign dominion, were legally under Japan's control and jurisdiction.
Exteriorites and Aliens in the Interior 1920 1930 1940 Exteriorites 42,492 423,660 Chosenese 40,755 419,009 1,241,315 Taiwanese 1,703 4,611 22,499 Karafutoans 31 22 S Sea Islanders 3 18 Aliens 35,569 54,320 39,237 China 22,427 39,440 19,453 Compiled by William Wetherall
The descriptions of these populations in English yearbooks and other English sources typically deploy the more racialist terminology preferred by Vasishth and Morris-Suzuki, which excludes "Koreans/Chosenese" and "Formosans/Taiwanese" from "Japanese/Nipponese".
Taiwanese and Chinese in Occupied Japan, 1946-1949
However, The Japan Year Book for 1949-52, published by The Foreign Affairs Association of Japan around August 1952, reflects the true manner in which official Japanese statistics clearly separated people according to their objective legal status. I have shown the top five "foreign resident" statuses -- which include Formosans and Koreans because, though they were Japanese and treated as such under most domestic laws, they were "aliens" for purposes of registration under GHQ/SCAP directives and related laws.
FOREIGN RESIDENTS IN JAPAN AFTER 1946 1946 (Dec.) 1947 (Apr.) 1948 (Apr.) 1949 (Mar.) Korea 532,164 595,111 598,329 601,069 China 13,804 19,641 21,676 21,630 Formosa 13,155 13,513 16,126 16,080 U.S.A. 179 2323 3155 3158 Germany 2651 768 749 752
There are few Americans in Japan at the end of the war because most had been repatriated during the war. Most Germans in Japan at the end of the war were repatriated as enemy nationals, differentiated from United Nations nationals, meaning Allied nationals.
In any event, it was not the practice in Japan before the Occupation, or in Japan under GHQ/SCAP, to conflate Taiwanese (Formosans) with Chinese -- because Taiwanese and Chinese were entirely different statuses.
Conflation of "Taiwanese" with "Chinese"
From whose viewpoint is Morris-Suzuki, inspired by Vasishth, lumping "Taiwanese" together with "Chinese"?
Not from Japan's.
Not from that of the "American occupation authorities" (Vasishth).
Not from that of Taiwanese who objected to China's heavy-handed Sinification policies on Taiwan when Japan surrendered the territory in October 1945.
And most certainly not from that of Taiwanese nationalists in 1948, who were strongly protesting the arrival of the government of the Republic of China, which by the end of that year had fled to Taiwan at the height of the revolutionary war on the mainland.
By 1947, Taiwan was witnessing serious uprisings by Taiwanese who objected to the heavy-handed efforts of the ROC military government on Taiwan to Sinify the people who had been Japanese for half a century. Two days after the ROC government completed its move to the island on 8 December 1948, it ordered martial law in what little it still controlled on the mainland. On 20 May 1949 it extended the order to Taiwan and Penghu. The order was not entirely lifted until 1987 -- after which the Taiwanese nationalist movement again flared.
In "Japan" as defined by GHQ/SCAP, Chinese were nationals of China -- which did not yet formally include Taiwan. Formosans were erroneously called "Formosan-Chinese" in some early SCAP directives. Later, though, they were called simply "Formosans", reflecting the Japanese term "Taiwanjin" (Taiwanese). Under most domestic laws they continued to be treated as Japanese nationals. For purposes of demographic registration in Occupied "Japan", however, they were treated as "aliens".
Chinese in Japan by province of origin in 1959
Alien registration statistics report breakdowns of aliens affiliated with China (Chugoku) and Korea (Kankoku, Chosen) by province of origin. The following "mainland" figure is my computation of provinces in "China" other than Taiwan.
Keep in mind that, in 1959, Japan recognized the Republic of China, which then claimed to represent all provinces of the "China" it represented in the United Nations. At the time at least, practically all ROC nationals in Japan whose home provinces were on the mainland represented the "Chinese" population in Japan at the end of the war, while practically all ROC nationals whose home province was Taiwan represented former Japanese nationals and their descendents.
Nationals of "China" by province of origin (including Hongkong and Macao) 1959 Taiwan 20,993 [Most Taiwanese who became ROC nationals after World War II] Others 23,606 [Most pre-PRC mainland ROC nationals] Total 44,599 [All ROC nationals except Hongkong and Macao subjects] Compiled by William Wetherall
"Subject" in reference to status under pre postwar laws in Japan reflects 臣民 (shinmin) -- literally "loyal affiliate". "Imperial subject" reflects 帝国臣民 (teikoku shinmin) -- literally "subject of the empire".
While the English term "subject" is often associated with "subjecthood" under a sovereign, it was also used to mean any person who was subject to the jurisdiction of a state or other polity, regardless of the political character of the polity, or whether the subject was a national or citizen or slave or whatever.
This single paragraph best illustrates how Morris-Suzuki imposes a totally false premise on what she calls "the boundaries of nationality, subjecthood and citizenship". They were never complex, never contested. They were, in fact, extremely simple.
"The legal framework of Japanese nationality"
The legal basis of Japanese nationality has never changed. Registration in a family register affiliated with a place which is under the jurisdiction of a polity that is part of Japan's sovereign dominion is a national of Japan and therefore Japanese.
"The boundaries of nationality, subjecthood and citizenship"
The boundaries of both nationality and subjecthood have always been clear. Nationality is a matter of registration in a family register within Japan's sovereign dominion. Subjecthood was a matter of affiliation with a territory that was either part of Japan's sovereign dominion (Interior, Taiwan, Karafuto, Chosen) or with a territory under Japanese mandate (South Sea Islands).
Citizenship has never been defined in Japanese law.
"a central contradiction"
All manner of states unify as nations while maintaining status differences based on territoriality or other attributes. So there is no "paradox" or "contradiction" in Japan's attempt to maintain differences in territorial status while integrating the legal systems of the different territories and attempting to unify their affiliates around a singular national identity.
seeking to divide rulers and ruled
Morris-Suzuki clings to the ideological fiction that Japan set out to divide "rulers and ruled" and went to elaborate measures to maintain differences in status while unifying its subjects. But all evidence suggests just the opposite. The huge disparities in territorial status came with the territories, and the disparities were reduced pretty much in proportion to the progress of legal integration.
A more serious flaw in Morris-Suzuki's "rulers and ruled" thesis is the implication that "colonial subjects" were "ruled" whereas other Japanese were "rulers" -- when in fact all Japanese, including Interior subjects, were "subject" to the same "rules" of imperial will in the name of the sovereign Emperor.
"increasingly complex layers of rights and duties distinguished peoples"
In fact, over the decades that Taiwan, Karafuto, and Chosen were parts of Japan, their originally different legal systems were slowly integrated in order to reduce the distinctions.
Karafuto had been under partial Japanese rule before 1875 when Japan accepted Russia's claims to the territory. By 1905, when Russia ceded Karafuto to Japan, the prefectural legal system had been fully developed, and Japan immediately applied its major laws to the territory.
Japan had some influence on Taiwan before it became part of Japan. Japan also had a direct hand in the formation of some Korean laws before Korea became Chosen. Both territories, however, were geographically, demographically, socially, and legally much more complex than Karafuto. Hence they warranted, as Morris-Suzuki points out, separate administration under a Government-General under the authority of a Governor-General.
However, Japan did not create the different legal systems with the intent of differentiation. The legal systems were different from the start. Japan immediately began to Interiorize their legal systems. And the object of legal integration was to gradually bring the "rights and duties" of people in the different territories to parity with those of the Interior -- which, on the whole, were much more liberal than those in the Exterior territories.
Keep in mind also that the rights and duties of Interior nationals were also changing -- generally in the direction of more personal freedom and political participation -- at least during the 1920s, when universal male suffrage was introduced.
Racialist considerations undoubtedly weighed against permitting free movement of family registers between territories -- but the registration systems were incompatible to begin with. Considerations of loyalty also cautioned against hasty demographic integration.
The more practical policy was to gradually make the exterior legal systems compatible with the Interior, while assimilating exterior subjects to Interior standards of life -- standards which were undergoing constant change.
Considering the several decades it took to configure the legal system of the Interior, which began before the start of the Meiji period, a few decades is hardly a long period of time to integrate territories as diverse as Taiwan and Chosen.
More important than the speed of integration was its consistent objective -- to simplify the complexities, and reduce the disparities, that were present from the beginning.
"Identity, subjecthood, legal nationality and voting rights"
Identity, subjecthood, legal nationality, and voting rights go together only in "the theoretical ideals set out in many texts on citizenship" that inform Morris-Suzuki's idealism. Despite evidence here and there that she understands the real world, she is bent on exceptualizing "imperial systems" like Japan's as having been particularly "contrary" to the "ideals" of "citizenship".
That, in the Empire of Japan, "identity, subjecthood, legal nationality and voting rights . . . seldom coalesced into a single national heart" -- actually makes Japan a very ordinary state at the time.
Japan had in fact made considerable progress toward the achievement of what Morris-Suzuki terms "substantive citizenship" before it entered its more expansionist imperial age. Its acquisition of Taiwan, Karafuto, and Korea as Chosen did not dampen this progress -- which continued, by Morris-Suzuki's own account, right up to the end of the war.
Here, too, Morris-Suzuki does not give an accurate account of how the relevant laws originated and operated.
"intermingling of people"
Morris-Suzuki seems to think that Japan created the family register system to separate people. In fact, quite the opposite. The different legal systems came the territories Japan acquired through succession treaties. From the moment Taiwan and Korea (as Chosen) became parts of Japan, Japan set about integrating their different legal systems.
The 1918 Common Law was specifically designed to facilitate the administration of civil matters involving affiliates from different territories. Laws passed shortly after this law came into effect enabled the operation of family law between register systems, to accommodate marriage and adoption between affiliates of the different regions.
"creating 'states within a state'"
Tashio did not describe the family register system as "creating 'states within a state'". Why would the Director of the Second Division of the Civil Affairs Bureau of the Ministry of Justice make such a claim?
Morris-Suzuki is pressing Tashiro's analogy into her own ideological thesis that the family register system "created" the territorial distinctions. The territories and their distinctions came first. Their existing register systems were objects of reform in the direction of Interior standards.
Tashio was not talking about family registers as tools created to separate people and discriminate between them. He was talking about the relationship between Exteriorites (Gaichijin) and the old (1899) Nationality Law. In particular, he was discussing how Japanese nationality was gained and lost in marriages, say, say, between Exteriorites and Aliens.
What Tashiro said was this (Tashiro 1974:794).
Tashiro goes on to give examples of how in Taiwan the Nationality Law would have determined nationality in cases of birth of a child to Taiwanese and alien parents, or in marriages between a Taiwanese women and an alien man.
The Nationality Law, though never extended to Chosen, did in fact apply to Chosen as the law of reason. In this respect, the only difference between the two entities is that in Taiwan Japanese nationality was a matter of statute law, while in Chosen it was a matter of reason. As he says, it would have been unreasonable to consider a child born to Chosenese parents, who were Japanese, not to have been Japanese from birth.
"rules for changing family registration precisely mirrored the rules for changing nationality"
Morris-Suzuki needs to turn her mirror 180 degrees. The rules for changing nationality (and territoriality) reflected the rules for changing family registers, which represented family territories.
Family registration practices came first, when family registration was systematized and nationalized from 1872.
The 1899 Nationality law incorporated the principles of family law, codified first in family register practices, then in the Civil Code -- down to the provisions for becoming Japanese through marriage or adoption made in a 1873 proclamation by the Great Council of State. Accordingly, foreign men, as well as women, were able to migrate from foreign nationality into Japanese registers for the same family reasons as Japanese migrated between family registers -- and, later, between territorial registers.
Morris-Suzuki focuses on women -- to the exclusion of effects of family register and nationality laws on the family, regional, and national affiliation of incoming husbands and adoptees. Rikidozan, originally Chosenese, was adopted by an Interior family and therefore remained Japanese after 1952.
Adding a new legal territory to the Interior was no different than creating a new prefecture in the Interior, or creating a new municipality within a prefecture, or a new family within a municipality. A territory merely constituted another layer of nested affiliation. Essentially the same rules -- family law -- governed register migration both within and between nested polities -- and between the polity of Japan and other states.
Among many statements Morris-Suzuki makes about nationality and nationality law in Japan -- some correct, some not -- the following statement reflects her essential lack of understanding about nationality law in Japan past and present (purple emphasis and [bracketed corrections] mine).
How was it possible that the laws of neither empire "defined the people . . . as citizens" -- yet "granted citizenship" either by jus soli or jus sanguinis? To put it bluntly -- it wasn't.
"defined as "Imperial Subjects" rather than as "citizens""
Great Britain's "Nationality and Status of Aliens Act" of 1914, enforced from 1 January 1915, spoke of a "British subject" in terms of possession of "British nationality" and of "a subject or citizen of a foreign country" in terms of possessing "the nationality of that country".
The phrase "subject or citizen" was used in reference only to aliens, in recognition of the fact that the domestic laws of some states defined "subjects" while those of others defined "citizens" -- whereas "nationality" was used for both British subjects and aliens because international law recognizes only "nationality" as the attribute that legally affiliates a person with a state's national population.
Even in the United States, where "citizen" and "citizenship" have been legal concepts since the birth of nation, the statutes which have stipulated the rules of national affiliation have been called "naturalization" or "nationality" acts.
Britain's 1914 law did not confer "citizenship" on anyone -- only nationality. The status of "citizen" and the concept of "citizenship" were not introduced into British nationality law until 1948, when the 1914 act was replaced by the Nationality Act of 1948.
Japan's 1899 Nationality Law most definitely did not define "people of the empire" as "Imperial Subjects". The 1890 Constitution spoke of shinmin or "subjects" -- literally "loyal people / affiliates". The Constitution stated that the conditions for being subjects would be defined by law.
The law defining "subjects" was the 1899 Nationality Law. However, the law referred only to Nihonjin or "Japanese" -- literally "Japan person" -- following pre-constitutional precedents of describing the status of persons considered to be kokumin or "nationals" (literally "nation people / affiliates") as "Japanese".
The 1890 Constitution defined "subjects" in relation to the sovereign of the Empire of Japan -- the Tennō or so-called "Emperor" -- Japan's "His Majesty". However, the 1899 Nationality law defined people in relation to the state over which the emperor reigned.
No one has ever become a "citizen" of Japan or acquired or lost the "citizenship" of Japan -- because these terms have never been defined or otherwise been operational in Japanese law.
"status of Imperial Subject defined in terms of
In the 1920s and early 1930s . . . the largest and most controversial migratory movement was the exodus of Koreans into Manchuria and North China. . . . For these migrants, the difficulties of adjusting to a new life in a harsh environment were aggravated by their uncertain nationality status. In many cases, they faced discrimination from Chinese authorities because they were "aliens". Tensions between immigrants and local people were reflected in conflicts like the Wanpaoshan (Manbosan) Incident of 1931, where Korean tenant farmers in Manchuria clashed with Chinese landowners: an event which sparked subsequent anti-Chinese riots in Korea.
If Korean migrants to Manchuria attempted to solve their problems by becoming naturalised Chinese, or later Manchukuo, citizens, however, they encountered a new problem. The Japanese government, which had substantial economic and strategic interests in Manchuria, wanted to enhance its claims to a presence in the region. It therefore continued to regard all Koreans in Manchuria as Japanese subjects, required them to maintain their Korean family residence, and insisted on the right for its consular representatives to attend court cases involving the migrants. (Hsu 1932, 143; Shinobu 1932, 286-287) Statements by Japanese legal experts, in fact, suggest that the desire to maintain a claim over this emigrant group was a major reason for the failure of the Japanese government to officially extend the provisions of the Nationality Law to Korea: since the 1899 law made it clear that Japanese subjects who took up foreign nationality would lose their Japanese nationality, its application to Korea would have made it all too easy for the emigrants to transfer their allegiance to China. (see Shinobu 1932, 286-287) Many Koreans in Manchuria thus acquired dual nationality, but as Park Hyun Ok observes, this dual nationality "represented the incompatibility of national membership in the Korean and Manchukuo states rather than enjoyment of membership in both." (Park 2005, 137)
Morris-Suzuki creates the impression that the nationality issue was suddenly created by the annexation of Korea. However, the problems go back to migrations from the Korean peninsula to areas of Manchuria north of the Tuman (Yalu) river that began during depressed times in Korea long before Japan intervened in Korea's affairs -- partly to solve such problems.
"uncertain nationality status"
There was no uncertainty in the nationality status of first Koreans, then of Chosenese, from Japan's point of view.
Korea became a protectorate of Japan in 1905. Japan, representing Korea in its foreign affairs, negotiated with China an agreement concerning the status of Koreans in Chientao.
On 4 September 1909, Japan concluded, with the Ching dynasty government of China, a convention concerning the Chientao region, which gave Koreans rights of residence. In return, Japan recognized the jurisdiction of Chinese officials over Koreans, but a Japanese consular officer would have the right to be present in all court proceedings, and would have more powers of representation in capital cases.
These protections were new to Koreans in Chientao, who had not had the benefit of such advocacy on the part of the Empire of Korea before it delegated foreign affairs to Japan in 1905.
The "uncertain nationality status" Morris-Suzuki alludes to arose later, as a result of 1915 agreements between Japan and China. The Treaty Respecting South Manchuria and Eastern Inner Mongolia, signed in Peking on 25 May 1915 (4th year of the Republic of China, 4th Year of Taisho) makes these provisions, among others.
Treaty Respecting South Manchuria and Eastern Inner Mongolia
Article 2 Japanese subjects in South Manchuria may, by negotiation, lease land necessary for erecting suitable buildings for trade and manufacture or for prosecuting agricultural enterprises.
Article 3 Japanese subjects shall be free to reside and travel in South Manchuria and to engage in business and manufacture of any kind whatsoever.
Article 5 The Japanese subjects referred to in the preceding three articles, besides being required to register with the local Authorities passports which they must procure under the existing regulations, shall also submit to the police laws and ordinances and taxation of China.
Civil and criminal cases in which the defendants are Japanese shall be tried and adjudicated by the Japanese Consul: those in which the defendants are Chinese shall be tried and adjudicated by Chinese Authorities. In either case an officer may be deputed to the court to attend the proceedings. But mixed civil cases between Chinese and Japanese relating to land shall be tried and adjudicated by delegates of both nations conjointly in accordance with Chinese law and local usage.
When, in future, the judicial system in the said region is completely reformed, all civil and criminal cases concerning Japanese subjects shall be tried and adjudicated entirely by Chinese law courts.
Article 8 All existing treaties between China and Japan relating to Manchuria shall, except where otherwise provided for by this Treaty, remain in force.
Article 5 reflects the caution typically taken by a state that considered itself legally more competent. Japan itself had only recently freed itself from nearly half a century of similar restrictions under extraterritoriality treaties with Euroamerican states.
In 1932, greater Manchuria became part of the state of Manchoukuo. As late as 1936, Japan was still reserving some extraterritorial rights in Manchoukuo. In 1937, however, it ended its extraterritoriality in the state.
"Koreans in Manchuria as Japanese subjects"
Article 8 became the principal bone of contention between China and Japan.
There was no doubt in Japan's mind that "Japanese subjects" (日本国臣民 Nihonkoku shinmin) included Chosenese, as Koreans had become when Japan annexed Korea as Chosen in 1910. In Japan's view, Chientao was part of South Manchuria, hence the terms of the 1915 treaty effected the interpretation of the 1909 Chientao agreement.
China, however, insisted that Chientao was not part of South Manchuria, that it was far from the territory served by Japan's South Manchuria Railway. China also contended that the 1909 Chientao Agreement was a standalone instrument intended to resolve local issues at the time it was signed. China maintained that it had granted Koreans the right to pursue agricultural activities in Chientao on the condition that they would be under China's jurisdiction in civil and criminal matters. In China's view, "Koreans" in Chientao did not qualify as "Japanese subjects" in South Manchuria.
"consular representatives . . . court cases involving the migrants"
When Korea became Chosen, Koreans became Chosenese, who Japan naturally protected as Japanese subjects. China did not wish to recognize that "Koreans" were under the same consular protection as "Japanese".
"the failure of the Japanese government
Morris-Suzuki characterizes as a "failure" the fact that Japan did not extend its Nationality Law to Chosen -- then cites one of apparently several "Japanese legal experts" she knows to exist.
Jumpei Shinobu [Shinobu Junpei] prefaces his remarks by saying "I am not in a position to give an official explanation [as to why Japan has not applied its Nationality Law to Korea] but apparently there are at least three reasons" (Shinobu 1932: 286). If the reasons he gives are more than speculation two decades after the annexation, then what Morris-Suzuki calls a "failure" was really a "strategy" -- which arguably worked.
Shinobu Junpei (信夫淳平 1871-1962), known in English as Jumpei Shinobu, left a ten-year career as a diplomat in 1917 to become a lecturer and professor of international law and diplomatic history at Waseda University. His postings included service as a consul in Korea when it was a protectorate of Japan. During the late 1920s and early 1930s he defended Japan's "special rights" in Manchuria but was somewhat critical of extraterritoriality.
According V.K. Wellington Koo, writing in June 1932 as China's ambassador to the League of Nations, in which position he of course protested Japan's activities in Manchuria and the establishment of Manchoukuo, Japan's argument circa 1916 concerning the possibility of "dual nationality" of Chosenese in China was that, since under Japanese law Chosenese were unable to lose their Japanese nationality, under Chinese law at the time (1909 law amended through 1914) they were unable to naturalize in China unless they would lose their original nationality upon naturalization.
China's 1929 Nationality Act .
While Japan insisted that its Nationality Law did not apply to Chosen, Koo -- citing ROC's 1929 Nationality Law, which did not explicitly require naturalizing aliens to lose their original nationality, and Japan's law revised through 1924 -- made the following (Memorandum on The Status of Koreans in the Three Eastern Provinces, Document No. 5, Peiping, June 1932, page 16).
Wellington Koo on nationality of Koreans as Japanese subjects
From the foregoing quotations from both laws, it is seen that as neither law contains any provision excluding Koreans from its operation, nor has there been any separate legislation to the effect, a Korean as a Japanese subject is fully entitled to expatriate under Japanese law and be naturalized under Chinese law. So long as the requirements of both laws are fulfilled, there seems to be no valid objection to his renunciation of Japanese nationality or acquisition of Chinese nationality.
Koo does not accept that Japan's 1899 Nationality Law did not apply to Chosen -- at least not as a statute.
Tashiro does not touch upon the issue of whether Chosenese were able to lose their Japanese nationality as a matter of "reason" should they naturalize in another country. But he does offer an option -- which Morris-Suzuki does not cite -- as to why Japan did not extend its Nationality Law to Chosen (Tashiro 1974: 798).
Tashiro Aritsugu on Japan's non-extension of Nationality Law to Chosen
Regarding the point as to why a statutory law applying the Nationality Law was provided only in Taiwan, and regarding Chosen [朝鮮 Chōsen] was not provided, if the formation of one hypotheses would be permitted, one can make the conjecture that does not [the reason] exist in the point that, in contrast with Taiwan being a cession of one part of a state (state of Ching [清国 Shinkoku = China]), Chosen is a union [merger, annexation] of the entirety [of] a state (state of Han [韓国 Kankoku = Korea])?
Tashiro is unable, in his position as a Ministry of Justice official writing a bible on nationality law in Japan, to frame his opinion except in this very roundabout way -- which puts as much verbal distance as possible between him and the conjectured hypothesis. He goes on state, in a more straightforward style however, that -- "because [those who until then had been] nationals of Korea [Kankoku] would naturally [as a matter of course] become nationals of Japan and would be understood [to be] persons to whom the application of Japan's Nationality Law would extend, it was thought that there was no need especially to provide a statute law [for Chosen]."
"dual nationality . . . Korean and Manchukuo states"
Park contends that both Manchoukuo and Korea were states. Morris-Suzuki calls Manchoukuo a "quasi-colony" but appears to share Park's view that Korea was a "state" because she speaks of "British and Japanese colonial states". This is why she she is anxious to paraphrase Tashiro's remark about "small states within one state".
There was, of course, no such thing as "Korean nationality" in Chosen under Japanese rule. There was, in fact, no "Korea" under Japanese rule. The entity, under Japanese law, was Chosen, its territorial affiliates were Chosenese, and because the territory was part of Japan's sovereign Empire, Chosenese were subjects and nationals of Japan.
It is odd that Morris-Suzuki does not venture how "many" Koreans acquired dual nationality in Manchoukuo. Whatever the number, not being able to realize the "enjoyment of both" entities of affiliation could not possibly be construed as proof that dual nationality was somehow "incompatible" -- for dual nationals, under international law as stipulated in Japan's Rules of Laws of 1898, are treated as mononationals in any given state jurisdictdion.
Dual nationality and renunciation
From around 1910 onwards, with a rising tide of anti-Japanese sentiment in North America, the question of dual nationality became a topic of increasing debate both within Japan and amongst Japanese communities overseas, and Japanese emigre groups began to lobby the government for a change in the law. (See for example Yoshida 1913).
The response was at first a cautious one: in 1916, the Nationality Law was amended to allow second generation emigrants to renounce Japanese citizenship, although adult males could only do so after they had completed compulsory military service. This was followed, however, by a more fundamental reform, introduced in 1924, which made it necessary for children born in ius soli nations (specified as the USA, Argentina, Brazil, Canada, Chile and Peru) to be registered with the Japanese consulate within two weeks of their birth if they were to retain Japanese citizenship.
"Japanese emigre groups"
Morris-Suzuki creates the impression that the primary impetus for the 1916 and 1924 revisions in the Nationality Law was lobbying by "Japanese emigre groups". However, advocacy on the part of Japanese or Americans who were also Japanese for legal reform in Japan's law was in response to strong diplomatic pressure from the United States on Japan to permit renunciation.
a more fundamental reform
The provision for "retaining" nationality by notification at a consulate was not really a "more fundamental reform" but a way to avoid creating dual nationality at time of birth in the United States and other American states. This, too, was the result of contining pressure from the United States to minimize dual nationality within its borders.
The "retention" provisions had the effect of putting the Japanese nationality of a child of Japanese parents to followed the procedures on hold until which time the child might go to Japan and activate their latent nationality. In the meantime, they would not be viewed as actual dual nationals.
In other words, children whose Japanese nationality had been "retained" by registration of their births at a Japanese consulate were not viewed as "dual nationals" so long as they remained in the United States and lived as US citizens under US jurisdiction. Those who later went to Japan and activated their nationality, then returned to the US -- so-called "kibei" -- were most likely to be regarded as true dual nationals.
The 1924 retention provisions were generalized in the 1950 Nationality Law. Since 1985, children with multiple nationalities have been required to "retain" their Japanese nationality within two years of turning twenty by "choosing" Japanese nationality and "abandoning" their other nationalities.
The "choice" provision generally to all multiple nationals with Japanese nationality. However, it does not actually force such a person to renounce another nationality of the laws of the other state do not insist on singularization of nationality.
The United States, once very adamantly opposed to dual nationality, was forced by its own Supreme Court in the 1980s to stop its practice of depriving multiple-national US citizens of their US citizenship simply because they continued to possess other nationalities. Consequently, naturalization in another country no longer causes a US citizen to loses citizenship.
Japan, today, attempts to minimize dual nationality more than it did in the past -- yet still does not categorically prohibit dual nationality, and is having to tolerate more. In the meantime, the United States, while not encouraging dual nationality, has had to moderate its once strong opposition.
One of the minor ironies of history.
USA, Argentina, Brazil, Canada, Chile and Peru
Why is Mexico missing from Morris-Suzuki's list of countries to which the 1924 retention provisions applied?
Debates on local voting rights for foreigners in Japan today often overlook the fact that Korean and Taiwanese men in Japan had voting rights from the Taishō period until 1945, and that these were unilaterally rescinded by the Japanese government in December 1945, at the very moment when Japanese women were given the vote. This disenfranchisement occurred at a time when the long-term nationality status of Korean and Taiwanese residents in Japan still remained to be settled. Despite insistence from some legal advisers to the Allied Occupation that former colonial subjects in Japan should be given a choice of nationalities, when the San Francisco Peace Treaty came into force in 1952 the Japanese government unilaterally revoked these residents' claim to Japanese nationality. (Kim 1997)
"unilaterally rescinded by the Japanese government"
Why "unilaterally"? Who was Japan supposed to negotiate with? There was no "negotiation" when universal male suffrage was introduced in the Interior in 1925.
There was, in fact, a very lively debate within the Japanese government as to how to deal with the problem of eligibility to vote and hold office. The original draft, based on legal advice within the government, would have permitted Taiwanese and Chosenese to vote. Sentiments in the Diet were somewhat different.
The final solution was to provisionally suspend rights of suffrage for those to whom the Family Register Law did not apply -- meaning those who were not members of Interior family registers.
The logic was simple. Japan no longer had control or jurisdiction over Taiwan or Chosen and had delegated its sovereignty over these territories to the Allied Powers with the understanding that they would be ceded away from Japan in a peace treaty. Any effort on the part of Japan to permit the political participation of Taiwanese and Chosenese in prefectural suffrage would appear to be an effort to continue to harbor a say in the political status of people GHQ/SCAP had made very clear were "liberated" and "non-Japanese".
The legal solution was fully consistent with Japanese law to that point, in that the new law related eligibility to family register status in the Interior -- and with GHQ/SCAP's definition of "Japan" and "Japanese" excluded Formosa (Taiwan) and Korea (Chosen) and their affiliates for Occupation purposes. Had GHQ/SCAP thought Taiwanese and Koreans deserved to vote under the new law, there is no way the Diet could have passed the law it did.
"insistence from some legal advisers"
Advice is advice, not insistence. The only meaningful fact is that GHQ/SCAP left matters of nationality to Japan to settle with the states to which it would eventually cede its suspended sovereignty over Taiwan and Chosen. Again, if there had been a concerted view within GHQ/SCAP that Japan should or must permit a choice of nationality, those provisions would have been written into the San Francisco Peace Treaty.
"unilaterally revoked . . . claim to Japanese nationality"
I have never encountered a report that Chosenese who remained in Japan clamoring to "claim" they were Japanese.
Japan's decision to denationalize Taiwanese and Chosenese was not, in any event, unilateral. Japan had entered into negotiations with both the Republic of China and the Republic of Korea over postwar settlements, including the legal status of Taiwanese and Chosenese in Japan, long before the Ministry of Justice issued its formal notification of denationalization on 19 April 1952.
Both ROC and ROK were in a position to insist on nationality choice and to enlist the support of GHQ/SCAP to intervene on behalf of such a insistence. ROC willing came to the table. But ROK had no interest in negotiating with Japan at the time and reluctantly came to the table only at GHQ/SCAP's insistance.
There is no evidence the ROC sought any solution other than to insist that it's own laws would government the nationality status of any and all people in Japan who were affiliated with China -- as ROC understood "China" to mean -- all the mainland provinces in addition to Taiwan.
ROK negotiators wanted to know why Japan had changed its mind about nationality -- having once entertained the idea of allowing a choice. ROK appears to have accepted Japan's explanation and sought "national treatment" instead -- i.e., status as aliens but treated as nationals.
Japan, for obvious reasons, rejected ROK's demand for national treatment. I say "obvious" because it is not an established practice among the family of nations in the world to treat aliens as nationals, particularly in matters of national suffrage.
Japan's nationality has never been based on anything except territorial affiliation. And the logic of Tashiro's "conjecture" (see above) about there being no need to extend the Nationality Law to Chosen applies equally in reverse.
In other words, when Japan abandoned all claims over "Korea" -- this included not only the territory but its affiliated population. Hence Japan's decision to denationalize Chosenese and require them to naturalize if they wanted to be Japanese. And all Supreme Court decisions in Japan have upheld the reasonableness of this logic.
ROK was also unhappy with Japan's refusal to treat all Chosenese in Japan as ROK nationals. However, the UN's recognition of ROK as the only lawful state on the peninsula did not change the fact that ROK did not have effective control and jurisdiction over the peninsula, where it was at war with the "other" Korea.
These early rounds of ROK-Japan talks became snagged on issues that were far more important to both states than the nationality of Chosenese in Japan. They continued on and off until the early 1960s, when finally the two states knocked out a normalization treaty and status agreement, which they signed in 1965.
Here, colonial subjects were holders of "external territory family registration" [gaichi koseki] as opposed to "internal territory family registration" [naichi koseki] - a status which could only be changed in the most exceptional of circumstances. As such, their rights and duties, as well as the regulations covering the recording of their births, marriages and deaths, were governed by the local rules of the colony (Korea, Taiwan etc.) rather than by the rule of metropolitan Japan. The bureaucratic tangles created by this dual system of belonging are vividly illustrated by the handbooks of case law issued in the pre-war period to guide courts and officials through the maze of the family registration system.
In graphs immediately following the above cited graph, Morris-Suzuki attempts to show that "despite the discrimination which permeated the colonial order, the movement of people through the empire constantly created human complexities, hybridities and blurred boundaries." She seems to feel that managing conflicts of law is somehow unusual in complex states.
"Metropolitan Japan" is the politically correct term -- in Morris-Suzuki's academic circles -- for what she also calls "Japan proper" -- ironically the more conventional, colonialist, touristy English tag for Naichi -- which, in Japanese law, is not "Japan" but part of Japan -- the "Interior territory" of Japan -- the "Interior".
It should be noted that the Naimusho -- the Ministry of Interior Affairs -- did not have jurisdiction over the Gaichi -- until 1942, when Taiwan, Karafuto, and Chosen were brought under administration of the Interior Ministry to expedite their integration into the Interior legal system.
The field of international private law is about the need to resolve conflicts of law, by determining applicable law in cases involving individuals of one state with individuals of another. In 1898, Japan enforced its law of laws, called the Rules of Law, now (since 2007) called the General law concerning application of laws. This law enabled Japan to fully participate in the international legal order it had resolved to join with full competency in 1899, when it would be free of extraterritoriality.
Conflicts of law also arise within states that have multiple polity jurisdictions, whether these be "states" as in the United States, or prefectures of provinces as in Japan, China, or Canada. Jurisdictional conflicts even arise within such smaller polities, as between villages, towns, and cities within the same province.
In 1918, Japan enforced a domestic version of its law of laws, called the Common Law. This law was promulgated to address conflicts of law between the regions that were by then parts of Japan's sovereign dominion -- the Interior, Taiwan, Karafuto, and Chosen -- as well as territories outside its sovereign dominion but under its legal jurisdiction -- Kwantung Leased Territory and South Sea Islands. Since all major Interior laws had already been extended to Karafuto, it was treated as part of the Interior for the purpose of applying the Common Law.
Of course local bureaucrats faced difficult questions about the application of laws in civil matters between people affiliated with different territories. All states with multiple legal jurisdictions have had to contend with conflicts of law and legacy issues within their larger state jurisdiction.
Conflicts of law "come with the territory" so to speak. Japan did not create the conflicts of law but inherited them. The record shows that Japan gradually integrated its legal territories in order to reduce the complexities and administrative headaches, and otherwise facilitate mobility and equality within the sovereign empire.
Conflicts of law, and extreme differences in legal standards, are obviously a headache in states like the United States -- which is truly like "small states within one state". All lawyers have to be familiar with laws of laws, and some specialize in untangling issues involving applicable laws, whether federal or state, and if state which state -- speaking only of US domestic law. Then there is international law and all its combinations and permutations of actual and potential conflict.
And there is a general drift toward increased compatibility where possible -- in the form or interstate standards, as in international standards.
In this sense, the legal character of the Empire of Japan was normative. Japan, for many reasons, was motivated to bring its various legal systems under a single umbrella. It was not an easy task -- considering that integration was not simply a matter of law, but a matter of language and custom. The customary aspects of family law were probably the the biggest hurdle -- the major cause for caution and delay -- along with racialist sentiments in all territories.
"dual system of belonging"
Morris-Suzuki's characterization of the "system of belonging" as "dual" appears to result from her misconception of status in Japan as a matter of "external territory family registration" or "internal territory family registration" -- but that was never the case. "Naichi" was a singular entity, but "gaichi" was a descriptive label for multiple entitles.
In any event, the 1918 Common Law puts all territories on an equal legal footing -- Interior, Chosen, Taiwan, Kantoshu [Kwantung Province], and Nan'yo Gunto [South Sea Islands]. The Interior included Karafuto for the purpose of this law.
The lumping together of the exterior entities as "gaichi" does not figure in the 1918 law because "gaichi" was not a legal entity. Even if one chooses to impose a fashionable expression like "system of belonging" on the Empire of Japan, one would have to speak of "multiple systems of belonging".
Morris-Suzuki's historical perspective
Morris-Suzuki has a broad and generally dynamic view and understanding of history. However, it is skewed by her somewhat ideological focus on "victims".
This somewhat "victimhood" approach may serve the interests of "human rights" advocacy today. But at times it gets in the way of a more accurate understanding, not only of history but of social and legal realities today.
Ironically, the interests of people who actually continue to be disadvantaged by legacies of historical, social, and legal wrongs are better served by non-ideological approaches to history, society, and law -- which strive for accuracy and eschew defining entire "nationality" or "ethnicity" cohorts as victims.
Part of Morris-Suzuki's problem is her view of history. In excerpts from an interview called "Juggling events puts historical issues in perspective", dated 21 April 2008 as posted on the Asahi Shimbun website, she listed the following incidents as "the 10 biggest incidents in East Asia's modern and contemporary history". The interview was billed as part of an Asahi series "to complement the 'Impact of History -- 150 Years in East Asia'".
1. The Opium Wars
2. The "First Korean War" (1894-1905)
3. "The East Asian Revolution" (1917-1919)
4. The Manchurian Incident
5. The 1945 atomic bombings of Hiroshima and Nagasaki
6. The "occupation" of Northeast Asia (1945-1972?)
7. The Chinese "Revolution" (1927-1949)
8. The "Second Korean War" (1950-1953)
9. Changes in Northeast Asian power balance: Sino-Soviet Conflict, Japan-U.S. "Collusion" (1959-1960)
10. China's economic miracle (1980-)
Vasishth on "Chinese" and "Taiwanese"
This is a review within a review -- of some other aspects of Vasishth's article that relate to the shortcomings of conflation of "Taiwanese" and "Chinese".
A model minority: The Chinese community in Japan
Michael Weiner (editor)
Japan's Minorities: The Illusion of Homogeneity
London: Routledge, 1997
xviii, 251 pages, softcover
Chapter 5, pages 108-139
Andrea Vasishth -- while also reducing "Japan" to only its Interior or prefectural territory, generally keeps her "Chinese" and "Taiwanese" straight -- up to the end of World War II.
In the following citations I have shown Vasishth's in-line references to sources but not their particulars.
During the war the Chinese who remained were treated as enemy nationals by the Japanese, kept under surveillance and often forbidden to leave the Chinatown areas (Yamashita 1979: 38). Chinese residing in areas deemed militarily sensitive were forcibly relocated (Asahi Shinbun, 11 August 1992). None the less, the number of Chinese present in wartime Japan rose. [Page 130]
As enemy nationals? Of what, China? What China are we talking about?
Japan kept an eye on subversive elements throughout the empire and in occupied territories. Neither nationality (Japanese, alien) nor territoriality (Interiorite, Taiwanese, Chosenese) mattered when it came to surveillance of persons suspected of anti-Japan activities.
Japan never declared war on China or considered itself at war with China. It stopped recognizing Chiang Kai-shek's government in exile in Chungking (Chongqing) and embraced the government of Wang Ching-wei (Wang Jingwei). Wang's government even declared war on the United States in 1943.
In May 1947 the Japanese government enacted the Alien Registration Law, under which both Taiwanese and Koreans, hitherto classified as Japanese subjects, were legally classified as aliens, although they would retain Japanese nationality until the signing of the San Francisco Peace Treaty in 1952. [Page 132]
The government did not enact the 1947 Alien Registration Order. It was in fact the last imperial ordinance to be promulgated by the emperor under the 1890 Constitution.
Though the 1890 Constitution and some laws referred to Japanese as "subjects" (shinmin), they were classified by nationality as "kokumin" (nationals) of Japan. The term "subject" immediately fell into disuse after World War II. Postwar imperial rescripts also referred to Japanese only as "nationals" (kokumin).
Taiwanese and Chosenese were treated as "liberated people" from the beginning of the Occupation, and by the end of 1945 had been defined as "non-Japanese". The earliest registration ordinances to treat them as such were implemented in 1946.
The 1947 law did not classify them as "aliens" -- except for the purpose of the law.
The San Francisco Peace Treaty was signed in 1951. It came into force in 1952. The treaty itself said nothing about the nationality status of Taiwanese or Chosenese.
After the foundation of the People's Republic of China (PRC) and the Taiwanese Republic of China (ROC) in 1949, both countries vied for the loyalty of overseas Chinese . . . . [Page 133].
There has never been a "Taiwanese Republic of China". The Republic of China came into existence as a state in 1912. It was continuously the government of China from 1928 until the foundation of the People's Republic of China in 1949 -- after which both ROC and PRC claimed sovereignty over virtually the same territory and people.
Though ROC no longer maintains the pretense of being the government of territories beyond its control and jurisdiction, it remains simply the "Republic of China" -- not withstanding the desire of some Taiwanese nationalists to change its name to the "Republic of Taiwan" or the like, and otherwise oppose the claims by the People's Republic of China that Taiwan is one of its provinces.
Japan's recognition of the PRC rather than the ROC as the legitimate government of China in 1972 led many Chinese to seek naturalization as Japanese citizens. [Page 133]
Japan did not simply "recognize" PRC rather than ROC. Japan switched its recognition from ROC to PRC.Japan had recognized ROC as the legitimate successor of the Ching (Qing) dynasty government since 1912. Though Japan had not been at war with ROC, it signed a peace treaty with ROC in 1952 because the ROC government in exile had declared war on Japan, had been one of the principal Allied Powers in the war against Japan, was a founding member of the United Nations, was "China" in the eyes of most other Allied states, was non-communist -- but, most importantly, had control and jurisdiction of Taiwan and Taiwanese, the principal subjects of the treaty.
The fact that Chinese residents of Taiwanese origin continue to exist as a distinct sub-group, in terms of areas of settlement, employment and relative economic success, is a further reflection of pre-war Japanese policies. None the less, the development of the Chinese community was not driven by Japanese policies alone. [Page 136]
Taiwan had not been very Sinified when China ceded Taiwan to Japan in 1895. Demographically it was heterogeneous. It was part of Japan for over half a century, during which time Taiwanese were not only Japanese nationals but were Japanized in terms of their education and language, and many other aspects of life.
Vasishth does not seem to appreciate the true complexity of the conflated PRC/ROC "Chinese" cohort in Japan. The PRC component consists mostly of people who came to Japan as PRC nationals after Japan recognized PRC in 1972. The ROC component consists of ROC nationals who qualify as Taiwanese and their descendants under Japanese law, and ROC nationals have no connection with Taiwan -- except that the government which controls their nationality now exists there.
Even judged from the time Vasishth wrote her article in the mid 1990s, her thesis of "the Chinese community in Japan" as "a model minority" comes across as a product of her imagination.
Tessa Morris-Suzuki is descrbied as a Convenor and Professor of Japanese History, Division of Pacific and Asian History, on the academic staff website of the Research School of Pacific and Asian Studies (RSPAS) at The Australian National University.
|Ninomiya Masato 二宮正人|
Ninomiya, born in Nagago prefecture in 1948, moved with his family to Brazil at age five, and was naturlized in Brazil. By 1971 he had become a licesenced attorney in Brazil.
In 1972 Ninomiya came on a Ministry of Education fellowship for foreigners, to study immigration and nationality issues. I first met early 1979 when he attended the first hearing of my daughter's nationality lawsuit. By then he had become acquainted with the lead attorney and was doing research on gender discrimination in the nationality law.
Ninomiya received an LL.D. from the University of Tokyo in 1981. This book is a slightly edited version of the doctoral disseration he submitted to Todai in March 1981.
Ninomiya, now a noted specialist in nationality and immigration law concerning Japan and Brazil, plies his time between a professorship at the University of Sao Paulo and visiting professorships at the University of Tokyo and Keio University.
Ninomiya's thesis covers gender issues in nationality law throughout the world. In Chapter I (Nationality of married women), Chapter II (Equality between the sexes and the requirements for naturalization), and Chapter III (Equality between the sexes concerning nationality at birth) compare the nationality laws of the United Kingdom, United States, Brazil, France, West Germany, Switzerland, the USSR, and Turkey -- historically to 1980 -- with respect to gender equality.
Chapters related to Japan
The two final chapters turn to Japan (English contents, page 3)
Origin of "kokuseki"
Ninomiya's summary of pre-Meiji "nationality" is necessarily brief (two pages), as there is really no concept of nationality until well into the Meiji period. But he gives nearly twelve pages to an overview of the development of "kokuseki" (国籍 state affiliation) in the course of tracing changes in how "status" as a Japanese was regarded in various drafts of what eventually became the 1899 Nationality Law.
See The birth of "kokuseki" for a summary of Ninomiya's overview of how "state affiliation" came to define "Japanese".
Court cases preceding revision
Ninomiya had no reason to go into the details of the cases which involved my two children, and a case involving another child, which were handled by the same group of attorneys. In fact, he filed his disseration in March 1981 -- the same month the first (Tokyo District Court) decisions were handed down in the cases involving my daughter and the other child (my son's case not originating until after his birth a year later).
However, it is significant that Chapter IV -- which leads up to final chapter on issues involved in revising the 1950 -- ends with a reference to the cases involving my children and the other child, updated to 1983, when Ninomiya's book appears (page 245).
Note 87 refers to the reader to Note 5 in the preface, where Ninomiya has made a similar remark about two cases being under appeal in the supreme court at the time he was revising his dissertation for publication as this book. This note, the second longest in the book, running nearly a full page, lists a number of interpretations, commentaries, and reports of research inspired by the lower court decisions that came out on 30 March 1981.
The two cases Ninomiya says were filed in 1977 were actually filed a year apart, one in December 1977, the other -- my daughter's -- in December 1978. And my son's case was added to the pile in 1982.
See Sugiyama v. State: Nationality court cases, 1978-1988 for details on all three cases.
Nationality Law Subcommittee
In the preface, after referring to the court cases, Ninomiya observedthat Japan had signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in July 1980, and that the Ministry of Justice had begun preparations to revise municipal laws so as to be able to ratify the convention. Hence (page 3):
Making the Japanese Empire: Nationality and Family Register in Taiwan, 1871-1899
Nomura makes a number of fatal errors concerning the meaning of affiliation in Japan based on family register status and nationality. Her errors seriously effect how she approaches such issues in Taiwan during the period it was part of Japan.
Taiwan became part of Japan's sovereign dominion in 1895 and was formally separated from Japan's sovereignty, control, and jurisdiction in two stages. The first stage was when Japan surrendered to the Allied Powers on 2 September 1945 and the Republic of China (ROC), representing the Allied Powers, received Japan's surrender in Taiwan on 25 October 1945. The second stage was when the San Francisco Peace Treaty came into effect on 28 April 1952 and, on the same day, Japan and ROC signed an independent peace treaty in Taipei.
Japan switched it's recognition of "China" from ROC to the People's Republic of China (PRC) in 1972, and in principle Japan recognized PRC's claim that Taiwan and its affiliated islands were part of its state dominion. However, Japan has continued to relate with ROC as a non-state entity.
PRC, since its establishing in 1949, has always regarded Taiwan (and its associated islands) as one of its provinces, but these territories have never been under PRC's control or jurisdiction. Since PRC establishes normal relations with other states on the condition that they not recognize ROC, most states in the world now regard ROC as a non-state entity, and ROC nationality has become an endangered species.
Because the framework of Nomura's study is 1871-1899, she does not need to breathe a word about ROC -- which did not succeed the Ching dynasty until 1912 -- much less about PRC, which was not founded by revolution until 1949. And she does not need to speak of ROC-Japan relations between 1912 and 1952. Nor does she need to talk about how ROC and Japan resolved nationality issues concerning Taiwan affiliates between 1945 and 1952 -- with considerable help from status rules established by the Allied Powers when occupying the Empire of Japan in 1945.
However, Nomura should at least have read and comprehended the various Meiji-period treaties, laws, and other legal measures that facilitated the migration of aliens of various foreign nationalities to Japanese subjecthood as Japanese during the period and for decades later, and even today. Her understanding of nationality considerations in Taiwan when it became part of Japan in 1895 would also have benefited from an understanding of nationality considerations when Taiwan was separated from Japan half a century later.
Nomura's abstract consists of the following paragraph (Nomura 2010, page 67, underscoring mine).
These are Nomura's conclusions. Not only are they not original, but they reflect sort of "critical" viewpoint today that has come to replace substitute for accurate history.
"inconsistent legal structure"
Among the many structural consistencies of Japanese law -- not only during the evolution of the Empire of Japan, but still today, and in fact from the earliest chronological descriptions of status acquisition in what is today Japan -- is the idea of affiliation based on population registers under local polity jurisdictions. These principles became the bedrock of polity affiliation in Meiji Japan, and continue to define Japan's civil nationality today.
There has been no discrimination in the deployment of Japan's prefectural laws. In fact, they have been deployed mainly to eliminate differences in legal standards in jurisdictions. This was in fact the main rational for a nationwide Family Register Law -- to standardize register status practices in Japan. And whenever provisions of the Family Register Law have were introduced outside the Interior (prefectural) legal jurisdiction, it was for the purpose of eliminating differences to facilitate integration into the Interior system of law.
The Nationality Law itself has never made any jurisdictional distinctions. It either applied, or didn't apply, to the registers of a given jurisdiction. It originally applied to registers in the Interior and then also to registers in Taiwan. It also applied to registers Karafuto, which was generally treated on a par with Interior polities was the first Exterior jurisdiction to be formally integrated into the Interior. It did not apply in Chosen, which had its own affiliation laws. But Chosenese were nonetheless Japanese, as in principle affiliates of registers within Japan's sovereign dominion were subjects and nationals of Japan, and therefore Japaneses.
The application of the Interior Nationality Law to Taiwan had absolutely nothing to do with Japan gaining full sovereignty over the territory. Japan gained full legal sovereignty over Taiwan and its associated islands within weeks of the signing of the signing, in Peking on 17 April 1895, of the Shimonoseki Treaty in which China ceded these territories to Japan. Japan had the option, two years after the exchange of ratifications on 8 May 1895, to regard those who had remained in the ceded territories as its subjects. And Japan was free to regard and treat them as its subjects and nationals without a nationality law -- which, in any event, did not then exist.
"excluded the colonised people"
The family register system itself never either accorded nor denied elements of citizenship to any subject and national of the Empire of Japan. The laws that defined rights and duties made distinctions at times -- as they do today in Japan -- as they do today in, say, the United States -- on the basis of state and/or local polity affiliation and/or legal domicile. Meiji Japan was no different in this regard.
By the end of the Taisho era (1925), the right to vote in election districts defined in the Interior was based only on whether a male subject -- regardless of his primary register address, whether whether in an Interior, Taiwan, or Chosen polity -- was qualified by age, length of continuous residence in the district, tax status, and other objective requisties.
"ambivalence to this process"
If Nomura were to closely examine the "process" of "nation building" -- after Japan was forced at gunpoint to bow to the United States and in succession several European powers in the 1850s and 1860s -- she will realize that Japan was never ambivalent about the object of unbowing with a minimum of back pain and a maximum of pride. There is no ambivalence at all in this essential object of Japan's "nation building".
That Japan was able to maintain and improve its posture astonished, impressed, and alarmed the states that had forced it to bow. Japan's rise inspired other countries in the region that wished to recover from their bowing, which had left many crippled.
Korea and China, among the inspired, had reason to also worry. That Japan went on to cause these and some other countries in Asia and the Pacific to bow to its designs turned its own reversal of fortunes to tragedy. And unquestionably Taiwan was part of this tragedy. But not for the reasons Nomura suggests.
Nomura's introduction (Paragraph 1)
Nomura's introduction has four paragraphs. The last two declare her intent to build on recent "scholarship" related to "colony and metropole" theory. Here I will cite and commonly on the first two paragraphs, in which she raises questions she seeks to answer, but in a manner suggesting that she set out to prove common preconceptions about Japan's household registers and nationality that she herself has embraced without question
Nomura makes several incorrect statements here that are amplified in throughout her paper.
"Nationality Law . . . conferred Japanese nationality"
Japan's 1899 Nationality Law was promulgated on as Law No. 66 on 16 March 1899 and enforced from 1 April 1899 to meet the recquirements of the 1890 Constitution for a statute establishing the qualifications for being a subject of Japan. The law applied to existing prefectural registers on the assumption that they were already "people" (jinmin) and "nationals" (kokumin" and "subjects" (shinmin) of Japan. All three terms were used in the 1871 Family Register Law, from which time -- and until which time, for that matter -- customary law regarded all people in family registers affiliated with Japan's sovereign territories as to "belong" to Japan.
From the late 1850s, Japan had signed a number of treaties with the United States and a number of European powers, giving them extraterritorial rights in Japan, until which time, in their view, Japan had become a legally compentent state. Japan did not have to conform to any of the legal systems then emerging in these foreign states, but it was expected to have a legal system that facilitated formal relationships. It was not that Japan did not have a complex legal system, but that its legal system was not one intended for the conduct of intercourse with the outside world, except to keep most of it at bay.
The first order of the day was nationalization of its own territories, and this began with the implementation of a nationwide population register system forged from centuries of experience with various kinds of local registers -- and the principle that people in registers affiliation with localities in the dominion of a sovereign made them subjects of that sovereign. This principle dates from the earliest centuries of Japan's record history, going back over a dozen centuries before the Meiji period, which began from 1868.
All of Japan's territorial expansions after 1868, up to the inclusion of Taiwan in its sovereign dominion in 1895, followed such century-old traditions of affiliation based on registration -- without exception. Taiwan is merely another example of what needs to be regarded as "standard operation procedure" in territorial affiliation in Japanese legal history.
As an entirely new legal jurisdiction within the Empire of Japan, Taiwan posed enormous problems, because it its population was not especially well defined for the purposes of carrying out any systematic social development -- which, of course, had been the primary purpose of the Family Register Law introduced in the newly established prefectures in 1871, and then in each territory that came to be incorporated in the prefectural jurisdiction, and eventually in each of the "extereror" territories that joined the "interior" prefectures within Japan's larger sovereign dominion.
The exterior territories were to include Taiwan, Karafuto, and Chosen, in this order. Taiwan joined Japan's sovereign dominion in 1895 -- and was considered incorporated the moment the ink dried on the Shimonoseki Treaty signed in 1895 -- with the help the United States, and in full view of the other states which, mostly in 1894, had signed agreements to end their extraterritoriality in 1899. Extraterritoriality ended in July, a month after Japan extended brand new prefectural Nationality Law to Taiwan.
Karafuto, which had been loosely tethered to Japan until 1875, returned to the fold in 1905, by treaty. Korea, a full protectate of Japan since 1905, joined Japan's sovereign dominion in 1910, by treaty, and immediately became Chosen.
The 1875 and 1905 treaties involing Karafuto, like the 1875 treaty involving Taiwan, included provisions for affiliation, as the states with which Japan had signed the treaties would continue to exist, and hence questions of subjecthood (meaning nationality) had to be settled. Korea, though, essentially ceded itself -- mountains, trees, its own imperial family, and its subjects -- to Japan.
When Korea joined Japan as Chosen, Japan nullified all extraterritorial agreements Korea had had with other states, but continued to recognize these other states and their nationality. Obviously, and naturally, Koreans became Chosenese, and Chosenese, as affiliates of a legal jurisdiction within Japan's sovereign dominion, were Japanese subjects, nationals, and people. And since the powers that mattered to Japan recognized its annexation of Korea as Chosen, these same powers -- the United States included -- recognized that Chosenese were Japanese -- just as they had recognized that Taiwanese were Japanese.
Taiwanese and Chosenese were recognized as Japanese, not because of Japan's Nationality Law, but because Taiwan and Chosen were territorially part of Japan's sovereign empire, Japan regarded and treated them as its subjects and nationals, and other states recognized that they were Japanese. The Nationality Law, which was applied to Taiwan but not to Chosen, was not in any case the sort of law that "recognized" the nationality of inhabitants of territories.
That is all there is to the matter. Yet Nomura persists on getting the political and legal history wrong. Again, all incorporation of clearly foreign territories were made by treaties -- never by the Nationality Law, which has never had that capacity.
"The Family Register
Nomura deceives her readers -- as a consquence of first deceiving herself -- that there was a singularity called ""the family register". There were only different legal jurisdictions. And with the exception of Karafuto -- in which Japan had already begun nationalization before 1875, including the introduction of population registers -- these jurisdictions -- namely, Taiwan and Chosen -- were not only very different from the Interior jurisdiction, but very different compared with each other.
Korea had been much more consistently under territory-wide administration, even before Japan began to have a hand in its affairs. And Japan had already facilitated the enforcement of a workable population register law before the 1910 annexation. Taiwan, in contrast, came to Japan as a territory that was only marginally under the rule of Ching dynasty codes, and constituted a true challenge for the civilian administrators that followed the military officers who carried out the pacification of resitance to Japan's rule, and then dealt with the pacification of several very different aboriginal tribes that had only partly been "cooked" into Chinese civilization.
Japan inherited registers, such as they were, and a variety of customary practices that were tantamount to family law, in both Taiwan and Korea -- but what Taiwan lacked, which Korea as Chosen had, was a overarching affiliation law, that could facilitate international private law -- i.e., status migrations involving marriages and other alliances with aliens.
Japan's Nationality Law, though based on the same foundations of family that codified in the prefectural Family Register Law, did not, however, solve the problem of compatability between Taiwan's various local family and tribal and other status practices and family status practices in the prefectures -- and ditto for the more uniform family status customs in Chosen and the prefectures. The process of "interiorizing" Taiwan and Chosen family laws in the form of Taiwan and Chosen register laws would take a few decades -- mainly because Japan respected the wide variety of customs it found in Taiwan, and the more uniform customs that came with Korea.
In other words, Japan very consciously chose not to assume that its prefectural standards should be instantly welcomed by people who had their own long-established social status traditions related to family matters.
There was never any "singularity" to household registration in the Empire of Japan. Even at the height of the extension of Interior (prefectural) family register (status) laws in Taiwan and Chosen, Taiwan and Chosen registers continued to essentially accommodate local customs. The "assimilation" of local family law and other customs, into Interior (prefectural) standards, evolved over the decades.
Note, however, that the object of nationalization within Japan was to standardize locally diverse practices for the sake of faciliating both state control and mobility within the state. The object of bringing Taiwan and Chosen laws closer to those of the Interior was also to facilitate the notion of a single "nation" under a common system of laws that facilitated central state control and mobility within the consolidated dominion.
However -- to return to the main point here -- the Nationality Law has never "conferred" Japanese nationality on anyone. It lacks the capacity to define any existing population as nationals of Japan. It applies, when applied, only to family registers that are already considered part of Japan's sovereign dominion and therefore part of its demographic nation. As such, it is essentialy a collection of rules for gaining or losing register status.
Nomura's introduction (Paragraph 2)
"assimilation" and "the West"
Nomura makes numerous statements that I would to balls she has merely bounced of the wall of the sort of "post-colonial critique" that has replaced fact-based history in many universities throughout the world, but most notably in English-language writing about Japan -- everyone's favorite colonial bully.
The following statements is one of the better examples I have seen of what goes wrong with one assumes that "Japan" was somehow motived to be different from "the West" -- which Nomura needs herself to imagine in order to argue her preconceived notions of what happened in Japan (Nomura 2010, page 70, underscoring mine).
Materials about naturalization, in the sense of volitional acquisition of a state's nationality, are grouped here.