Bibliographies and reviews
 Grading  Nationality  Population registers  Race  Minorities  Suicide

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

Nationality Aleinikoff 2001 Bowles 1915 Bredbenner 1998 Brubaker 1992 Brubaker 1996 Chang 1990 Chapman and Krogness 2014 Chen 1984 Chiu 1990 Cho 2007 Chung 2010 Cortes 1990 Doi 1984 Endo 2010 Flournoy 1929 Hansen 2002 Hiraga 1950-1951 Hosokawa 1990 ISS 1974 Iwasawa 1986 SF CG of Japan 1925 Kashiwazaki 2000 Ko 1990 Mackie 2003 Morris-Suzuki 2006 Morris-Suzuki 2008 Ninomiya 1983 Nomura 2010 Onuma 2004 Sasaki 2010 Sawaki 1981 Schuck 1985 Seckler-Hudson 1934 Shao 2009 Shirai 2007 Smith 1997 Takemae 2002 Tashiro 1974 Wetherall 2006
Naturalization Asakawa 2003 Asakawa 2007 Kobayashi 2011 LeMay and Barkan 1999 Udell 1972


Nationality

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)
2001

Citizenship Today: Global Perspectives and Practices
Washington, D.C.: Carnegie Endowment for International Peace
Distributed by Brookings Institution Press, 2001
xi, 410 pages, softcover

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).

Austria and Japan are examples of states with restrictive regimes. Both states follow jus sanguinis principles and limit possibilities for dual nationality. Austria requires that persons seeking naturalization demonstrate that they have expatriated themselves from their countries of origin. Japan makes renunciation a requirement for naturalization and requires that persons to attain dual nationality at birth elect a single nationality before reaching the age of twenty-two.

[ Two paragraphs unrelated to Austria and Japan omitted. ]

Policies toward dual nationality may also be a function of whether the state has a strong or weak conception of itself, either in ethnic or civic terms. Thus Austria and Japan -- both jus sanguinis states with strong ethnic identities -- have restrictive dual nationality regimes. (The dual nationality rules are coordinated with laws in each state that make naturalization somewhat difficult.) Canada may be the best example at the other end of the spectrum. But, again, there are powerful counterexamples. Israel and France are states with strong national identities, yet both are open to dual nationality.

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).

Country            Austria   Japan

Jus Soli              No       No
[Note 1]

Jus Sanguinis 
(1st generation)      Yes      Yes
[Note 2]

Jus Sanguinis
(2nd generation)      Yes      Yes, with registration
[Note 3]

Renunciation
Requirement at
Naturalization        Yes      Yes
[Note 4]

Foreign
Naturalization/
Retain Citizenship    No       Yes

[Notes]

1. Territorial right to citizenship.
2. Children of citizens.
3. Children of parent whose citizenship derives from descent.
4. Some countries make exceptions in cases of hardship
    (such as for refugees).

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.

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Gilbert Bowles
1915

Japanese Law of Nationality
Tokyo, 15 May 1915
6 pages, softcover (pamphlet)

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).

NO RACIAL OR NATIONAL DISCRIMINATION

In a personal letter to the compiler of this article Mr. J. E. De Becker, writes: "No line is drawn at either nationality or race. The only question considered is -- is the applicant likely to make a desirable citizen. If the man himself is all right, then his nationality, or race cuts no figure whatsoever in the matter, and this, I think, is as it should be."

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

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.

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Candice Lewis Bredbenner
1998

A Nationality of Her Own
(Women, Marriage, and the Law of Citizenship)
Berkeley: University of California Press, 1998
xi, 294 pages, hardcover

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.

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Rogers Brubaker
1992

Citizenship and Nationhood in France and Germany
Cambridge (MT): Harvard University Press, 1992
xii, 270, softcover (1998, 5th printing 2001)

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).

I use the word "citizenship" deliberately. The ideological antithesis of subject and citizen should not blind us to the underlying structural similarity between the codification of citizenship in Revolutionary France and the codification of "subjecthood" in Restoration Prussia. Citizenship, for my purposes, is a legal institution regulating membership in the state, not a set of participatory practices or a set of specifically civic attitudes. Its meaning, in this sense, is exactly captured by the German Staatsangehorigkeit.

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).

The restrictiveness of German citizenship vis-à-vis immigrants, I have argued, reflects an ethnocultural understanding of nation-state membership, according to which Staatsangehörigkeit presupposes and expresses Volkszugehörigkeit.

Brubaker makes the following comparison of French and German, and even American, terms (page 50)

The path of national citizenship followed a longer and more torturous path in Germany than in France. There was no German nation-state, and thus no political frame for national citizenship, until 1871. Moreover, there was no pivotal event in the history of citizenship, no moment of crystallization remotely like the French Revolution. Aspects of citizenship that, as a result of the Revolutionary crystallization, were closely integrated in France -- egalitarian, democratic, nationalist, and statist aspects -- developed independently of one another in Germany.

This is reflected in the German vocabulary of citizenship. In French and American English, nationalité and citoyenneté, "nationality" and "citizenship," are rough synonyms. [Note 1] "Citizenship" has participatory connotations that "nationality" lacks and "nationality" has a richer cultural resonance than "citizenship"," but the words are used interchangeably to designate the legal quality of state-membership. In German, formal state-membership, participatory citizenship, and ethnocultural nation-membership are designated by distinct terms: Staatsangehörigkeit, Staatsbürgerschaft, and Nationalität or Volkszugehörigkeit respectively. The semantic overlap in French and English reflects the political definition of people in the French, English, and American political traditions, a fusion deriving from their founding revolutions. [Note 2] The semantic differentiation in German reflects the independent and sometimes antagonistic course of state-building, nationalism, and democracy in Germany.

[Note 1]  Akzin, States and Nations, pp. 11-12. [Akzin, Benjamin. States and Nations. Garden City, N.Y.: Doubleday, 1966.]

[Note 1]  Since America has no concept of the state like that of Continental Europe, this statement requires qualification. In the United States, the semantic overlap between "nationality" and "citizenship" reflects the political definition of nationhood and the fusion of the concepts of nation and sovereign people.

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).

The legal nationality conferred by the state and the ethnocultural nationality invoked by the "principle of nationality" are of course different things; the former may be conferred in utter disregard of the latter. Yet the thrust of the principle of nationality was precisely to connect the two -- not directly, through state redefinition of legal nationality in ethnocultural terms, but indirectly, via the redrawing of political boundaries so as to make legal and ethnocultural nationality converge.

It was only after midcentury that members of the French state were first routinely called nationaux, and state-membership first called nationalité. In other words, the new word "nationalité acquired first an ethnocultural meaning, firmly established by 1848, and subsequently a legal meaning. The prior ethnocultural meaning appears to have "contaminated" the legal meaning. Talk of "nationalité" in the legal sense carried with it shades of meaning belonging to "nationalité" in the ethnocultural sense. Indeed the very adoption of "nationalité," whose ethnocultural meaning had already been established, to designate what had hitherto been known in ethnoculturally neutral terms as the "qualité de francais," suggests an interest in asserting the ultimate or ideal ethnocultural basis of statehood. Calling formal state-membership and ethnocultural community by the same term, nationalité, suggests an awareness of, and a desire to emphasize, the affinity between the two.


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).

In the French tradition, the nation has been conceived in relation to the institutional and territorial frame of the state. Revolutionary and Republican definitions of nationhood and citizenship -- unitist, universalist, and secular -- reinforced what was already in the ancien régime an essentially political understanding of nationhood. Yet while French nationhood is constituted by political unity, it is centrally expressed in the striving for cultural unity. Political inclusion has entailed cultural assimilation, for regional cultural minorities and immigrants alike.

If the French understanding of nationhood has been state-centered and assimilationst, the German understanding has been Volk-centered and differentialist. Since national feeling developed before the nation-state, the German idea of the nation was not originally political, nor was it linked to the abstract idea of citizenship. This prepolitical German nation, this nation in search of a state, was conceived not as the bearer of universal political values, but as an organic cultural, linguistic, or racial community -- as an irreducibly particular Volksgemeinschaft. On this understanding, nationhood is an ethnocultural, not a political fact.


Biographical note

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).

Despite a quarter-century of constructivist theorizing in the social sciences and humanities, ethnic groups continue to be conceived as entities and cast as actors. Journalists, policymakers, and researchers routinely frame accounts of ethnic, racial, and national conflict as the struggles of internally homogeneous, externally bounded ethnic groups, races, and nations. In doing so, they unwittingly adopt the language of participants in such struggles, and contribute to the reification of ethnic groups.

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Rogers Brubaker
1996

Nationalism reframed
(Nationhood and the national question in the New Europe)
Cambridge: Cambridge University Press, 1992
xi, 202, softcover (1997, second reprinting)

Forthcoming.

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Chang Hyo Sang
1990

Nationality in Divided Countries: a Korean Perspective
In: Ko Swan Sik (editor)
Nationality and International Law in Asian Perspective
Dordrecht: Martinus Nijhoff Publishers, 1990
Chapter 6, pages 255-308

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).

As soon as eventual reunification of South and North Korea is achieved by means of appropriate institutional and procedural arrangements giving effect to the exercise of the right of self-determination, the existing anomaly [of a divided nation] as described above will surely be eliminated, and the homogeneity of the Korean people will then be restored.

For an overview and critique of Chang's views of Japan's annextion of Korea and its aftermath, see Chang Hyo Sang and Hosokawa Kiyoshi on Korea and Koreans in the article on "Chosen: The legal cornerstones of imperialism" in the "Subnationality and integration" part of "The Empire of Japan" feature in the "Nationalism" section.

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Edward I-te Chen
1968
1984

Chen 1968

I-te Chen
Japanese Colonialism in Korea and Formosa
(A Comparison of Its Effects upon the Development of Nationalism)
Ph.D. Dissertation, Political Science, 1968
University of Pennsylvania (copyright 1969)
University Microfilms (UM 69-76)
xxxvii, 339 pages, paper binding

Chen 1984

Edward I-te Chen
The Attempt To Integrate the Empire: Legal Perspectives
In: Ramon H. Myers and Mark R. Peattie (editors)
The Japanese colonial empire, 1895-1945
Princeton (NJ): Princeton University Press, 1984
x, 540 pages, paper cover
Pages 240-274 (Chapter 6)

Chen 1984 is reviewed in conjuction with Chen 1968 on an independent page as Edward Chen on "Attempt to Integrate Empire".

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Chiu Hungdah
1990

Nationality and International Law in Chinese Perspective
(with special reference to the period before 1950 and the practice of the administration in Taipei)
In: Ko Swan Sik (editor)
Nationality and International Law in Asian Perspective
Dordrecht: Martinus Nijhoff Publishers, 1990
Chapter 2, pages 27-64

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.

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[Cho Kyongje]  趙慶済   [チョ キョンジェ Cho Kyonje]  [조 경제 Cho Kyŏngje]
2007

在日韓国・朝鮮人の属人法に関する論争
Zainichi Kankoku/Chōsenjin no zokujinhō ni kan suru ronsō
[Disputes concerning the personal law of Kankoku/Chosenjin in Japan]
立命館法学 Ritsumeikan hōgaku <Ritsumeikan Law Review>
2007年2号 (312号) 2007 No. 2 (No. 312)
Pages 249-322 (499-573)

Cho 2007 is reviewed on an independent page as Cho Kyongje on "Personal law of Koreans in Japan".

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Erin Aeran Chung
2010

Immigration and Citizenship in Japan New York: Cambridge University Press, 2010
xiii, 205 pages, hardcover

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".

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Irene R. Cortes and Raphael Perpetuo M. Lotilla
1990

Nationality and International Law From the Philippine Perspective
In: Ko Swan Sik (editor)
Nationality and International Law in Asian Perspective
Dordrecht: Martinus Nijhoff Publishers, 1990
Chapter 8, pages 335-422

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.

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Doi Takako (editor)  土井たか子 (編)
1984

「国籍」を考える
"Kokuseki" o kangaeru
[Considering "nationality"]
東京:時事通信社、1984年2月1日
Tokyo: Jiji Tsūshin Sha, 1 February 1984
257 pages, softcover, jacket
4 (preface), 4 (contents), 248 (text), 1 (author introductions)

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).

I 暮らしのなかの国籍
I Nationality in life
II 国籍のない子どもたち
II Children without a nationality
III 日本の近代史にみる国籍
III Nationality seen in the recent-period history of Japan
IV ひらかれた社会に向けて
IV Toward an opened society

Contributors

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).

Doi Takako (Japan Socialist Party, House of Representatives (Chair, Ministry of Foreign Affairs Committee)
Garushia Kazumi (Member, Kokusai kekkon o kangaeru kai) Ariyoshi Katsuhiko (Director, Ajia jinken sentaa)
Kinjō Kiyoko (Professor, Tokyo Kasei Daigaku)
Ishida Reiko (Member, Kokusekiho kaisei ni tsuite teigon suru shimin guruupu)
Utsumi Aiko (Member, Ajia no onnatachi no kai)
Tanaka Hiroshi (Professor, Aichi Daigaku)
Yasue Tomoko (Member, Kokusaiho kenkyukai)

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.

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Endō Masataka   遠藤正敬
2010

近代日本の植民地統治における国籍と戸籍
(満洲・朝鮮・台湾)
東京:明石書店、2010年3月24日
430ページ

Kindai Nihon no shokuminchi tōchi ni okeru kokuseki to koseki

(Manshū, Chōsen, Taiwan)
[Nationality and family registration in the colonial rule of recent-age Japan (Manchuria, Chosen, Taiwan)]
Tokyo: Akashi Shoten, 24 March 2010
430 pages, hardcover

Endo 2010 is reviewed on an independent page as Endo on "nationality and family registers".

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Richard W. Flournoy, Jr. and Manley O. Hudson
1929

A Collection of Nationality Laws of Various Countries as Contained in Consitutions, Statutes and Treaties
New York: Oxford University Press, 1929
xxiii, 776 pages, hardcover
Publications of the Carnegie Endowment for International Peace, Division of International Law, Washington

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.

Warren Kelchner

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.

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Randall Hansen and Patrick Weil (editors)
2002

Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe
(The Reinvention of Citizenship)
New York: Berghah Books, 2002
ix, 341 pages, softcover

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).

To reflect deeply on citizenship is to enter a bewildering gyre of reasoning. It is commonly held that citizenship entails a kind of membership, but there the consensus ceases and the contention begins. Membership in what? Why, in the polity of course. And what is a polity? It is a community of citizens. Oh. And does the polity include those who are not citizens? Well, it includes them in some senses but not in others. If it is the citizens who decide on the nature and conditions of non-citizens' inclusion, by what right did they acquire that power and under what limitations do they exercise it? Hmmmm.

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Hiraga Kenta   平賀健太
1950-
1951

国籍法
東京:帝国判例法規出版社
上 (序 昭和二十五年十月四日)
下 (下巻 序 一九五一年一0月一日)

Kokusekihō
[Nationality Law]
Tokyo: Teikoku Hanrei Hōki Shuppansha
Volume 1 (Preface, 4 October 1950), 2, 2, 1-188 pages
Volume 2 (Volume 2 Preface, 1 October 1951), 3, 2, 189-473 pages

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).

See Summary of Hiraga's overview of 1950 Nationality Law for a partial transcription of a 12-page English digest of the article prepared during the Occupation of Japan.


Biographical note

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.


Teihan

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.

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Hosokawa Kiyoshi
1990

Japanese nationality in international perspective
In: Ko Swan Sik (editor)
Nationality and International Law in Asian Perspective
Dordrecht: Martinus Nijhoff Publishers, 1990
Chapter 5, pages 177-253

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.

For an overview and critique of Hosokawa's views of Japan's annextion of Korea and its aftermath, see Chang Hyo Sang and Hosokawa Kiyoshi on Korea and Koreans in the article on "Chosen: The legal cornerstones of imperialism" in the "Subnationality and integration" part of "The Empire of Japan" feature in the "Nationalism" section.


Biographical note

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.

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International Social Service of Japan   日本国際社会事業団
1974

Research on Children of U.S. Nationality in Japan:
For the Purpose of Protecting Them from
the Loss of Nationality
(Report)
[April 1973-March 1974]
Tokyo: International Social Service of Japan, Inc., March 1974
1, 57 pages, softcover
[ 社会福祉法人   日本国際社会事業団 ]
[ Shakai fukushi hōjin   Nihon kokusai shakai jigyō dan ]

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).

Table of Contents

Preface

I.   INTRODUCTION
     1.  International Social Service
     2.  Purpose of this Project
     3.  Objectives and Methods of This Project

II.  SUMMARY OF INVESTIGATION RESULTS
     1.  Children of U.S. Nationality in Japan
             i) The Present Situation of Children of
                U.S. Nationality in Japan -- Age, Sex,
                Birth Place, Place of Registration,
                Alien Status of Residence
            ii) Guardians
           iii) Nationality of Parents
            iv) Present Situation of Family
             v) Social Security
            vi) School Education
           vii) Prejudice
            ix) Various Problems in the Family
      2.  The U.S.Immigration and Nationality Act and
          Japanese Nationality Law -- Extract --
             i) The U.S. Immigration and Nationality
                Act and its Background
            ii) Relation of the U.S. Immigration and
                Nationality Act to Children of
                U.S. Nationality in Japan
           iii) Future Planning: Those who wish to
                retain U.S. Nationality and those who
                wish to become Japanese citizens

III. CONCLUSION: Problems of U.S. Citizen Children
                 Living in Japan

     Postscript
     Appendix

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).

iii)  Nationality of Parents

96% of the fathers of children of U.S. nationality in Japan are U.S. citizens, and the remaining 4% are Japanese, Filipino and Chinese. However, 95% of the mothers are Japanese, and the remaining 5% are U.S. citizens, Koreans, Canadians and Filipino (Figure 10).

It is also noted that some fathers with U.S. nationality have their own nationality problems. An example is a man, born in the U.S. of Japanese parents, who acquired U.S. nationality by birth and came to Japan with his parents during the second world war. Checking the parents' family register in Japan, he recently found that [the] U.S.-born children of his parents were not registerdd [sic = registered] in Japan, and realized that he had not acquired Japanese nationality. Although he has evidence of being an American citizen through his efforts and the efforts of the U.S. Embassy in Japan, he still has a problem in that his legitimate children had originally no nationality. Section 301 of the U.S. Immigration and Nationality Act provides that a parent born overseas who desires and who wishes to acquire the nationality of the United States for his children must be [sic = must have been] present in the United States for an accumulated period of 10 years, including over 5 years after attaining the age of fourteen. Unless a parent fulfills this condition, his children cannot acquire their parents' [sic = the parent's] U.S. nationality. While the Japanese law of nationality is based on the principle of automatically acquiring the nationality of the father, the U.S. law is based on a territorial principle, i.e. that anyone born in the United States can acquire U.S. nationality. Consequently, it is quite natural that the nationality of children born between parents of these two different countries whose citizenship laws have such different bases would have many problems.

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.

"not registered"

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).

Title III -- Nationality and Naturalization
Chapter 1 -- Nationality at Birth and by Collective Naturalization
Nationals and citizens of the United States at birth

Sec. 301. (a) The following shall be nationals and citizens of the United States at birth:

[ Paragraphs (1) to (6) omitted ]

     (7)  a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less that ten years, at least five of which were after attaining the age of fourteen: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

     (b)  Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State [sic = States] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

[ Subsection (c), which imposes a number of legacy conditions on subsection (b), omitted ]

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.

"citizenship laws"

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.


Social welfare

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).

v)  Social Security

The Japanese Government guarantees the livelihood of mother and child households lacking a father by death, divorce, or disappearance under the following laws described below. Some of these laws are not applied to mothers with children of foreign nationality, even though they were born and brought up in Japan.

Special Welfare Laws for
Mothers & Children
[Applicability] To
U.S. Nationality Children
Daily Life Security Law As [sic = In] principle, not applicable
The Child Welfare Law Applicable
The Child Rearing Allowance Law Not applicable
Special Child Rearing Allowance Law Not applicable
Children's Allowance Law Applicable only in case of Japanese mother
Widowed Mother and Child Welfare Law Applicable only in case of Japanese mother
National Health Insurance Law [Applicability] Dependent on the local government act [in municipality] where he [sic = person] lives

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).

viii)  Table of Contents

One finding of this investigation was that, generally speaking, children of U.S. nationality do not suffer prejudice or discrimination living in Japan. It can be seen from Fig. 17 that the response of 74% was that they have not had any particular experience of prejudice. However, it is necessary to allow for the fact that these children were born in lawful wedlock. In comparison with a racially similar group of illegitimate children deriving Japanese nationality through their mothers, the children who were subjects of this investigation and also their mothers, appeared to derive pride and self-confidence from the U.S. nationality of the father. They seemed rarely to express feeling any sense of inferiority due to the circumstances of their birth, and instances of discrimination and prejudice against them from Japanese society were stated by them to be rare. However, in spite of the fact that these people are leading ordinary daily lives in Japanese society, and say they do not suffer any feelings of exclusion the impression gained from case work interviews was that their wish to preserve their U.S. nationality was a strong one.

In this regard it is thought necessary to touch on what may be said to be a special phenomenon of the localities surrounding the post-war bases in Japan. It was inevitable that, in the regions where the foreign occupation forces and other foreign troops were stationed in Japan, the problem of mixed parentage children would be left behind after the troops had gone. Immediately after the war, while the fathers were living with their families, these children were under their fathers' strong influences. The children were fortified and protected by this inherent strength. The fact that they were of mixed parentage was linked to their consciousness of being a member of the dominant society of their fathers.

At present, however, not only have these children's fathers returned to America but, in contrast to the immediate post-war period, Japan's general economic condition has vastly improved and a corresponding appreciation of Japanese culture and society has developed. It is not surprising that these children of absent fathers experience very real identity conflicts which are intensified if they happen to be illegitimate and experience discrimination and scorn from Japanese society as a result of their "different" appearance and parentage.

ISS has some experience in helping to alleviate this kind of identity problem from work in the Kure area. Our "Kure Project" was set up after the war specifically to assist mixed parentage children with British Commonwealth fathers, and long term counselling as well as material help was given by the agency with the aim of helping the children make healthier adjustments to the Japanese society of which they were a part.

The problem which Japan had internally immediately after the war is now present in Okinawa. There are in Okinawa about 300 children registered as foreigners of U.S. nationality.

There is also a sizable number of illegitimate mixed parentage children who are registered as Japanese although it is difficult to judge from the data available how many of them have fathers of U.S. citizenship.

Because of Okinawa's geographical location, children with Philippine/Japanese parentage are also numerous. These children, as well as the larger group in the rest of Japan, are in immediate need of a program of counselling and material aid to improve their chances of making a long term positive adjustment to their special life situations.

It should be said that mixed parentage children residing in Japan, whether born in or out of wedlock, have more in common than just their distinctive appearance. our investigation and experience tells us that these children's U.S. nationality is very important to them in their marginal and sometimes precarious social situations. It is conceivable that loss of this citizenship and the resulting statelessness, with neither country nor security, would cause psychological and spiritual distress.

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.

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Yuji Iwasawa
1986

Legal Treatment of Koreans in Japan
(The Impact of International Human Rights Law on Japanese Law)
Human Rights Quarterly (The Johns Hopkins University Press)
Volume 8, Number 2, May 1986
Pages 131-179

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?"

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Consulate General of Japan, San Francisco (Compiler)
1925

Documental History of Law Cases affecting Japanese in the United States 1916-1924
(In Two Volumes)

Volume I: Naturalization Cases and Cases Affecting Constitutional and Treaty Rights
2 pages (contents), 413 pages, paper bound (text)
Volume II: Japanese Land Cases
5 pages (contents), 1051 pages, paper bound (text)
San Francisco: The Consulate General of Japan, January 1925

Image

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.

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Chikako Kashiwazaki
2000

The politics of legal status
(The equation of nationality with ethnonational identity)
In: Sonia Ryang (editor)
Koreans in Japan
(Critical voices from the margin)
London: Routledge, 2000
x, 229 pages, hardcover

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).

Nationality, citizen, and state interests

Nationality is here understood as formal membership in a state in the sense of international law. In scholarly works as well as in ordinary English usage of the term, "citizenship" is usually used interchangeably with the term "nationality." For the analysis in this chapter, citizenship is treated as conceptually distinct from nationality and is defined as a bundle of rights and duties the state confers or imposes upon individuals.

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).

European experiences thus suggest progressive legal incorporation of permanently settled immigrants into citizenry. If the key to this progress is transition of immigrants from sojourners to permanent settlers in the host society, the case of Japan demands explanation. The settlement of Korean migrants in Japan occurred much earlier than that of major immigrant groups in Europe today, and yet Japanese nationality regulation has changed little. In the area of partial citizenship, the legal status of long-term resident foreigners has gradually improved over time, and scholars have applied the concept of denizenship to Koreans in Japan (Kajita 1996; Kondō 1996). Nevertheless, greater disjunction remains between "denizens" and "full citizens" in Japan than is typically the case in Europe.

The ideology of Japanese ethnic homogeneity appears to be a likely factor explaining the restrictive access to Japanese nationality. However, state interests are multidimensional, as discussed above. One might ask, referring to European experiences, whether Japanese state managers might not find it beneficial to turn resident Koreans into Japanese citizens, so as to reduce the tension arising from intergroup relations in society. Further analysis is required of the construction of nationality-based differentiation in legal status.

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.


Wartime mobilization

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).

Postwar reorganization of nationality and citizenship

Japan faced a labor shortage with the outbreak of the Pacific War in 1941, and Koreans were brought to construction and production sites in Japan and elsewhere. . . . By the time the war ended, the number of Koreans in Japan is said to have been approximately two million. The majority of those who had been forcibly brought to Japan were repatriated upon the end of the war, while those who had more or less settled in Japan stayed on. . . . The legal status of these Koreans remaining in Japan was central to the postwar reorganization of Japanese nationality and citizenship.

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.


Drawing boundaries

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).

A major curtailment [of their "citizenship rights" as "Japanese nationals"] also occurred in terms of political rights. The fear of the impact of left-leaning Koreans as a voting bloc spread among Diet members and government officials (Mizuno 1996, Mizuno 1997). In December 1945, the Diet passed legislation that suspended the voting rights of those who were "not subject to the household registration law." Thus, the separation based on the location of household registries, a system institutionalized under colonialism, continued to serve as the method of drawing the boundaries between "Japanese proper" and colonized subjects.

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".

水野直樹 Mizuno Naoki
在日朝鮮人台湾人参政権「停止」条項の成立
ー 在日朝鮮人参政権問題の歴史的検討 (1) (2) ー
Zainichi Chōsenjin Taiwanjin sanseiken "teishi" jōkō no seiritsu
ー Zainichi Chōsenjin sanseiken mondai no rekishi-teki kentō (1) (2) ー
[The formation of the provision for "suspension" of the rights of political participation (suffrage) of Chosenese and Taiwanese (residing) in Japan
ー An historical examination of the issue of the rights of political participation (suffrage) of Chosenese (residing) in Japan (Part 1) ( Part2) ー
世界人権問題研究センター
Sekai Jinken Mondai Kenkyū Sentaa
[World Human Rights Research Center]
<Kyoto Human Rights Research Institute>
研究紀要
Kenkyū kiyō
[Research proceedings]
Part 1: Number 1 (March 1996) [pages 43-65]
Part 2: Number 2 (March 1997) [pages 59-83]

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's reports

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.


Biographical note

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.

Top  

Ko Swan Sik (editor)
1990

Nationality and International Law in Asian Perspective
Dordrecht: Martinus Nijhoff Publishers, 1990
xlviii, 506 pages, hardcover
International Law in Asian Perspectives, T.M.C. Asser Institute, The Hague

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.

See reviews elsewhere in this Bibliography of Hosokawa Kiyoshi's chapter on Japan and Chang Hyo Sang's chapter on Korea, which present contrasting views of the legality of Japan's annexation of Korea and its postwar denationalization of Korea/Chosen subjects.

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Vera Mackie
2003

Vera Mackie
Feminism in Modern Japan: Citizenship, Embodiment and Sexuality
Cambridge: Cambridge University Press, 2003
2006 digital printing edition
vi, 293 pages, paperback

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 reform of the Nationality Law was the focus of campaigns by the Asian Women's Association, which had been formed in 1977. Within the Diet, Socialist member Doi Takako was publicly identified with the campaign. (Note 54)

Note 54 (page 200)   [Mackie briefly describes Doi's political career. She says nothing about Doi's activities regarding the revision of the Nationality Law.]

the focus of campaigns by the Asian Women's Association, which had been formed in 1977

  The 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.

Stateless children

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.

Acknowledgement (recognition)

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).

For immigrant women who married or lived with Japanese men, a new set of problems appeared. Some sought shelter from domestic violence by husbands or partners. Others sought to regularise the nationality status of their children. 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. (Note 30) If a woman's visa status is 'spouse of a Japanese national', divorce will mean that she loses her residence status, and she will need to apply to the Department of Immigration for special permission for continued residence in Japan. While some women may be happy to return to their country of origin in such circumstances, the situation is more complex for women with children.

Note 30 (page 226)   Veronica Taylor, 'Gender, Citizenship and Cultural Diversity in Contemporary Japan', in Mera Mackie (ed.), Feminism and the State in Modern Japan, Melbourne: Japanese Studies Centre, 1995; Higashizawa Yasushi, Nagai Tabi no Omoni, Tokyo: Kaifū Shobō, 1993, pp. 161-201.

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.

Nationality of child of alien mother when father is Japanese

Under Japanese law, a child born to an alien woman has always been able to acquire Japanese nationality if its Japanese father recognized his paternity in a timely manner -- before or at the time of the child's birth -- by notification at a municipal hall in Japan or a Japanese consulate if overseas. Recognization later in life has been the main legal problem. Under the 1899 Nationality Law, parental (paternal or maternal) acknowledgment alone was sufficient to obtain Japanese nationality for an alien child.

The 1950 Natinality Law made no provisions for parental (maternal or paternal) acknowledgement.

As revised from 1985, the 1950 law made provisions for acknowledgment but required that the child be legitimated through the marriage of its recognizing parent(s).

In 2008, too late for Mackie's book, the Supreme Court ruled that the legitimation requirement discriminated against children born out of wedlock, and as revisded from 2009, the 1950 Nationality Law requires only parental (paternal or maternal) recognition. The multiple lawsuits that led to the landmark 2008 ruling were filed mostly by Filipina women in Japan, but they represented all manner of alien women, in Japan and overseas, who have given birth out of wedlock to a child fathered by a Japanese man.

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?

Diaspora

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).

The existence [in Japan] ofKorean and Taiwanese communities, the descendants of those who migrated to Japan during the colonial period, is one legacy of Japan's imperial and colonial past. For much of Japan's postwar history, nationalist issues have been the major political concerns in such communities, the Korean community in particular being split between groups with alliance to North or South Korea. (Note 69) The creation of feminist groups in these communities is a relatively recent development.

Note 69 (page 230)   During the colonial period, Koreans and Taiwanese were treated as 'subjects' of the Japanese Emperor, but Japanese nationality was revoked in the 1950s after the ratification of the San Francisco Peace Treaty. The Korean War made it difficult for these residents to choose to live in Korea, and they had to choose an allegiance to either North or South Korea, although resident in Japan.

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.

  1. As subjects and nationals of Japan, Taiwanese (Formosans) and Chosenese (Koreans) were Japanese.
  2. Their Japanese nationality was not revoked by ratification of the peace treaty. The peace treaty separated Formosa (台湾 Taiwan) and Korea (朝鮮 Chōsen) from Japan's sovereign territority. And since Japan's nationality is territorially defined -- i.e., is a status associated with domicile registration within Japan's sovereign territory -- Japan legally deemed Taiwanese (台湾人 Taiwanjin) and Chosenese (挑戦人 Chōsenjin) to have "separated from"(離脱する ridatsu (Korea) from its nationality.
  3. All Chosenese who had settled or were otherwise in the parts of the prefectural Interior that the Allied Powers defined as "Occupied Japan" had an opportunity to "return" to the peninsula. Those who declined to return remained in Japan for a number of reasons, the most common of which appears to have been because they they had gotten used to life in Japan and had reason to feel that life in Occupied Japan would be better than life on the peninsula, which had been divided by two Allied Powers -- the Soviet Union and the United States -- which had become openly hostile to each other. By the time of the Korean war, half of all Chosenese in Japan had been born in Japan, and many were the offspring of mixed marriages.
  4. No Korean resident of Japan has ever had to choose an allegiance to either Korean state, whether the Republic of Korea (ROK) in the south or the Democratic Republic of Korea (DPRK) in the north. Who could impose such a choice on them? Not Japan, which legally could not, and diplomatically would not attempt to, meddle in a choice of nationality of another state. And the laws of ROK nor DPRK have no effect on Koreans in Japan who do not enroll in one or the other nationality. Enrollment in ROK nationality did not become possible until 1965, when Japan and ROK "normalized" their diplomatic relationship. Enrollment in DPRK nationality is not yet possible as I write this 2014, as Japan and DPRK have not yet normalized their very shakey relationship. In the meantime, practically all Koreans in Japan from the 1952 cohort that lost Japanese nationality, and their descendants, have become enrolled in ROK's nationality. Those who haven't remain "Chosenese" even if privately they have managed to acquire DPRK documents. And a few such "Chosenese" are apt to cling to their legacy "Chosen" status even after Japan legally recognizes DPRK nationality. They will forever have the right not to choose an allegiance to either of the Korean states.

Top  

Tessa Morris-Suzuki
2006

Invisible Immigrants: Undocumented Migration and Border Controls in Early Postwar Japan
Journal of Japanese Studies
Volume 2, Number 1, Winter 2006
Pages 119-153

Revised and expanded version

Japan Focus <www.japanfocus.org>
Posted 31 August 2006, retrieved 2 January 2007

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 overstriking, and marked text not in the JSS version with blue highlighting. The mechanics of style -- puntuation, bracketing, and footnoting -- are as received in the Japan Focus version.

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
Occupation of Japan
Alien statistics
Agreement Permanent Residence
Immigration control functions
Immigration Control Order


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).

The accepted narrative of Japan's migration history, however, remains framed by that powerful image of Japan's postwar development as "growth without migrant workers". This narrative runs roughly as follows. The prewar colonial period generated large-scale movements of people, including mass emigration from Japan to the colonial empire and beyond, and the forced and voluntary entry of Korean and other colonial subjects Koreans, Chinese and others to Japan. As a result, there were over two million Koreans, and smaller numbers of Chinese and Taiwanese residents in Japan at the end of the Pacific War. Of these almost three-quarters were repatriated after the war, but their places in the workforce were filled by the repatriation of more than six million Japanese from all over the former empire, and by rural-urban migration within Japan. During the 1950s and early 1960s there was a small outflow of Japanese emigrants to Latin America, and a rather more significant outflow of people from US-occupied Okinawa to the same destination. Other than this, however, postwar Japan was characterized above all by its lack of international migration at least until the 1980s (though a few scholars also note 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[8].

Immigration during the years from 1945 to the late 1970s is wholly missing from this story (as is the post-occupation emigration of foreign residents from Japan). Yet such immigration certainly occurred, and this essay seeks to explore its nature and its implications for our understanding of migration history in the Japanese context. The exploration is, of necessity, preliminary and incomplete. As we shall see, it is impossible to provide accurate statistics of migrants who entered Japan between 1946 and the late 1970s, but it seems clear that they numbered at least in the tens of thousands, and possibly in the hundreds of thousands. Documentary material is more readily available for the postwar occupation period and the 1950s than it is for the 1960s and 1970s: a fact also reflected in the coverage of the discussion presented here.

This discussion also focuses mainly on migration from Korea, which was by far the largest source of postwar immigrants. However, a variety of other smaller migratory flows also await scholarly study. The postwar repatriation of Taiwanese and Chinese residents in Japan, and the entry of Taiwanese and Chinese migrants in the postwar decades, are important and little-explored topics. Another neglected issue is cross border movement between Okinawa and the rest of Asia. Since Okinawa was under US occupation until 1972, it operated under a migration regime different from the one described here. Postwar immigrants to Okinawa included Taiwanese workers brought in to cultivate pineapple plantations, and workers from the Philippines employed in or around US military bases. The history of their lives both before and after Okinawan reversion remain important topics of study. Many of the questions about borders, nationality and Japan's immigration policy raised in this essay are also of relevance to these further dimensions of postwar migration which, for reasons of space, are not examined here.

[8] For example, Wolfgang Herbert, Foreign Workers and Law Enforcement in Japan, London, Kegan Paul International, 1996; see also Hiroshi Komai (trans. Jens Wilkinson), Migrant Workers in Japan, London, Kegan Paul International, p. 2.

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.

"migration history"

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

"Japan"

from Japan, within Japan, to the colonial empire and beyond

"Koreans, Chinese and others"

Chinese and Taiwanese residents

"repatriation"

repatriation of Japanese. repatriation of Taiwanese and Chinese residents

"US-occupied Okinawa"

under US occupation until 1972


Occupation of Japan

Regarding "separate occupation regimes" Morris-Suzuki writes this (JJS, pages 126-127).

After the War, large parts of Northeast Asia were occupied by the victorious Allies, and Japan was divided into two parts under separate occupation regimes. The major part of the country was placed under an allied occupation whose headquarters [the Supreme Command Allied Powers -- SCAP] exercised control with the help of through a Japanese administration, while the "Nansei [Southwestern] Islands" (including Okinawa> [23] were placed under direct US military rule. Meanwhile, the southern half of the newly independent Korea was also occupied by the United States, which proceeded to install the right-wing regime of Syngman Rhee, while Soviet troops moved in to occupy the northern half of the Korean Peninsula.

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.


Alien statistics

A section titled "The Language of Invisibility" begins with these three graphs (JJS, pages 123-124).

Statistics themselves have the capacity to render people invisible. Consider this description of the background to contemporary migration issues in Japan, which accompanies a table showing the number of legally registered aliens in Japan between 1920 and 1991: "Since overrunning (but not completely exterminating) the indigenous Ainu and Okinawan cultures on the islands occupied by Japan, the Japanese have enjoyed centuries of ethnic and cultural stability… Between 1950 and 1988 the percentage of foreigners in the total population of Japan was consistently about 0.6 percent".[9] The figures in the table support this image of stability: they suggest, to be precise, that the percentage of legally registered foreigners in the Japanese population was 0.72% in 1950, 0.68% in 1970, and 0.70% in 1985.[10]

But constant percentages do not necessarily mean an absence of movement or change. For one thing, as we shall see, there was in fact a substantial exodus of over 70,000 Koreans in the years 1959 to 1961. [11] At the same time, in a large and growing population, stable percentages represent a growth in the actual number of registered foreign residents in Japan by over a quarter of a million: by 109,852 between 1950 and 1970, and a further 142,064 between 1970 and 1985 (though this is partly accounted for by natural increase, since children born in Japan to foreign fathers were also foreigners).

Furthermore, reliance on the official figures raises important problems. Faith in government data is particularly evident in studies of Japan, where the presence of a well-organized and statistically-minded bureaucracy induces a ready acceptance of the official record. Yet in fact (as government officials themselves occasionally admit) the apparently precise figures for registered foreigners in postwar Japan bears an uncertain relationship to reality. The growth in the number of documented foreign residents in Japan between 1950 and 1970 was at least partly a result of the introduction of more rigorous registration procedures[12]; more importantly, most immigration to Japan in the postwar decades took the form of undocumented "illegal" entry, and does not appear in the official record at all. Bearing that in mind, the postwar decades begin to look less like a time of stability and closure than a time of complex and poorly recorded cross-border flows.

[9] Wayne A. Cornelius, "Japan: The Illusion of immigration Control", in Wayne A. Cornelius, Philip L. Martin and James F. Hollifield eds., Controlling Immigration: A Global Perspective, Stanford, Stanford University Press, 1994, pp.375-410; quotation from p. 375.

[10] I have calculated these percentages by comparing the figures for legal registered aliens given in Cornelius "Japan: The Illusion of Immigration Control" loc. cit. with the figures for the total Japanese population given in Tsuneta Yano Memorial Foundation ed., Nippon: A Chartered Survey of Japan 1989-1990, Tokyo, Kokuseisha, 1989, p. 43.

[11] Homusho Nyukoku Kanrikyoku, Shutsunyukoku Kanri to sono Jittai -- Showa 46-Nen, Tokyo, Okurasho Insatsukyoku, 1971, pp. 95-96.

[12] As we shall see, more rigorous registration also made it more difficult for "illegal migrants" to obtain residence documents. However, its principal effect seems to have been to ensure the registration of previously unregistered "legal" foreign residents.

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.

Aliens in Japan -- Census and registration figures

       Census  Prcnt  Rgstrtn  Prcnt    Diff Prcnt
         ca   %ca/ct     ra   %ra/ct d=ra-rc %d/rc
1950  528,048*  0.63  598,696   0.72  70,648    12 	 
1960  577,205   0.62  650,566   0.70  73,361    11
1970  600,613   0.58  708,458   0.68 107,845    15
1980  740,038   0.63  782,910   0.67  42,872     5
1985  761,439   0.63  850,612   0.70  89,173    10

Prcnt   = Percent
Rgstrtn = Registration
Diff    = Difference

ca = census alien population
ct = census total population of Japan (not shown)
ra = registered alien population
%ra/ct = percent of registered aliens
         as ratio to total census population
 d = difference by which count of registered
     aliens exceeds census count of aliens
%d/r = percent of registered-census difference
       as ratio to registered aliens

Compiled by William Wetherall

Notes

* 528,048 in the 1950 figures represents (1) the 630,793 people residing in "Japan" (Honpō), as defined by GHQ/SCAP and as stipulated in the 1947 Alien Registration Order, who DO NOT HAVE principal registers (honseki) in "Japan" -- i.e., "non-Japanese" as defined for alien registration purposes -- MINUS (2) the 102,745 "non-Japanese" residing in Japan whose honseki are in Karafuto, Chishima (the Kuriles), Okinawa (Ryukyus), Kagoshima-ken Oshima-gun, and Ogasawara. The remaining 528,048 "non-Japanese" include people residing in "Japan" whose honseki are in Chosen (464,277), Chugoku or Taiwan (39,885), USA (4,922), UK (910), Canada (781), Germany (720), other "aliens" [gaikokujin] (15,697), and Uncertain [fushō] (856).

While people falling under (2) were excluding from "Japanese" in the 1950 census, they were included as Japanese from the 1955 census, for on 28 April 1952 Chosenese and Taiwanese lost their Japanese nationality, but Karafuto and Chishima affiliates did not lose their nationality, and the residual nationality of people affiliated with the Okinawa and other territories that remained under United States administration, who were residing in Japan, was recognized, hence they were counted as Japanese and not aliens.

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.

Registered aliens in Japan by nationality

           Census	    Alien registration							
         Japanese     Total   Kan/Cho  Chugoku 

1950   82,568,844   598,696   544,903   40,481
1960   92,841,296   650,566   581,257   45,535
1970  103,119,447   708,458   614,202   51,481
1975  111,251,507   751,842   647,156   48,728
1980  116,320,358   782,910   664,536   52,896
1985  120,287,484   850,612   683,313   74,924

Kan/Cho = Kankoku/Chosen [ROK / Chosen]
Chugoku = Chugoku [PRC / ROC]

Compiled by William Wetherall

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.

       Brzl   Phil Peru     USA   Other	Sttlss

1950    169    367  178   4,962   6,815    821
1960    240    390   40  11,594  10,880	   630 
1970    891    932  134	 19,045  20,955    818
1975  1,418  3,035  308  21,976  26,545  2,676 
1980  1,492  5,547  348  22,401  32,971  2,719
1985  1,955 12,261  480  29,044  46,653  1,982 

Brzl   = Brazil
Phil   = Philippines
Sttlss = Stateless

Compiled by William Wetherall

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).

However, treaty permanent residents "Treaty Permanent Residents" did not receive access to welfare, public housing, etc.[40 41] More important importantly, individuals had to apply to become treaty permanent residents "Treaty Permanent Residents", and could acquire this status only if they were South Korean citizens. The new system therefore excluded large numbers of Koreans in Japan who continued to identify themselves with the North Korean regime, or who chose to define themselves as nationals of "Korea as a whole" rather than of South Korea, and who remained stateless.[41 42] The Treaty also did nothing to help the many Korean residents who had "illegally" entered or reentered re-entered Japan in the postwar period: indeed the agreement specified that the only people eligible to apply for Treaty Permanent Residence were those who "have lived in Japan permanently from before 15 August 1945 to the date of their application."[42 43]

[40 41]  [omitted]

[41 42]  Ibid., p. 208; see also Sonia Ryang, "Introduction: Resident Koreans in Japan", in Ryang ed., Koreans in Japan, 1-12; citation from p. 4. The nationality of Koreans in Japan was divided between Kankokuseki -- citizenship of the Republic of Korea (South Korea), and Chōsenseki. Those with Chōsenseki include people who define themselves as citizens of the Democratic People's Republic of Korea (North Korea) and a substantial number who defined themselves above all as nationals of a future re-united Korea.

[42 43]  [omitted]

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).

Article 1

1. The Government of Japan, when a national of the Republic of Korea who falls under either of the following, in accordance with procedures determined by the Government of Japan to implement this agreement, makes an appliciation for permission for permanent residence within five years from the day this agreement comes into effect, shall permit permanent residence in Japan.

(a) a person who has been residing continuously in Japan from on or before 15 August 1945 until the time of application

(b) a person who, as a lineal descendant of a person who falls under (a), was born in Japan on or after 16 August 1945 and within five years of the day of enforcement of this agreement, and has since then continuously resided in Japan until the time of application

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.

"remained stateless"

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).

Sonia Ryang on "stateless" Koreans

In 1945, when the Allied occupation of Japan started, Koreans in Japan were liberated people; by 1952, when the occupation ended, they were stateless people with few civil rights and extreme insecurity of residential status. . . .

The 1965 South Korea-Japan normalization of diplomatic relations enabled Koreans in Japan to obtain the right of permanent residence on condition that they apply for South Korean nationality. This arrangement restructured expatriate political power relations: faced with this choice, many Korean residents, including some who had previously supported North Korea, applied for South Korean nationality. Those who remained stateless, approximately 250,000 out of 640,000 in 1974 (Lee 1981: 144-5), had no civil status or overseas travel documents until the early 1980s, that is, for more than three decades after Korea's liberation.

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).

In the final years of the occupation, SCAP had gradually transferred immigration control functions to a Migration Control Bureau [55 57] attached to the Japanese Ministry of Foreign Affairs.

[ omitted ]

Soon after the end of the occupation, in August 1952, migration control functions were transferred from the Ministry of Foreign Affairs to an Immigration Control Bureau [Nyūkoku Kanrikyoku] located within the Ministry of Justice.

[55] Shitsunyūkoku Kanricho, renamed the Nyuukoku Kanricho in 1951.

[57] Shitsunyukoku Kanricho, renamed the Nyuūkoku Kanricho in 1951.

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 chronology

10 August 1949 -- Immigration Department established within the Control Bureau of the Ministry of Foreign Affairs (MOFA).

1 October 1950 -- Emigration and Immigration Agency established as an external agency of the Ministry of Foreign Affairs. At this time, alien registration, which had been under the Civil Affairs Bureau of the Attorney General's Office,was moved under MOFA.

1 November 1951 -- Emigration and Immigration Agency becomes simply Immigration Agency.

1 August 1952 -- Immigration Agency is reconfigured as Immigration Bureau under the Ministry of Justice, as the Attorney General's Office was renamed as of the same date.


Immigration Control Order

Morris-Suzuki says this about the Immigration Control Order of 1951 (JJS, page 138).

What was distinctive about the Japanese system was not so much the Migration Control Ordinance itself, but rather the way it [sic = in] which migration controls and citizenship policy interacted. The restrictive features of the ordinance were magnified by the presence of large groups of people who had been Japanese nationals when the ordinance was introduced but were unilaterally defined by the state as "foreigners" soon after.

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".

"citizenship policy"

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.

Top  

Tessa Morris-Suzuki
2008

Migrants, Subjects, Citizens:
Comparative Perspectives on Nationality in the Prewar Japanese Empire
Japan Focus <www.japanfocus.org>
Posted 28 August 2008, retrieved 9 September 2008

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.

On "imin"
"migrants" and "immigrants"
"Chinese"
Subjects
Citizens
Nationality
Koreans in Manchuria
Dual nationality and renunciation
Postwar developments
Territoriality
Morris-Suzuki's historical perspective
Vasishth on "Chinese" and "Taiwanese"


On "imin"

Morris-Suzuki defines "imin" like this.

Even the very word imin -- the Japanese term which covers both immigration and emigration -- did not come into widespread use until the late nineteenth century. Before that, Japanese emigres were often referred to by the term dekaseginin -- "people who go out to earn money" -- the same word which was used to describe seasonal labourers who left their home villages to seek work in other parts of Japan. (Hata 1970, 14-15) In other words, many of the ideas, rules and institutions which we now take for granted as marking the boundaries of national populations were only gradually developed through contact and friction with the modern world order. In this process, the Japanese state found itself confronting new and unforeseen problems relating to the definition of nationality.

Hata, Donald T. 1970. "Undesirables": Unsavoury Elements Among the Japanese in America Prior to 1893 and their Influence on the First Anti-Japanese Movement in California. Unpublished PhD Thesis, University of Southern California.

"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.

Immigration metaphors

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.

English original   Recommendation concerning Communication to the International Labour Office of Statistical and Other Information regarding Emigration, Immigration and the Repatriation and Transit of Emigrants

Japanese translation   移民の出国、入国、帰国及通過に関する統計其の他の情報の国際労働事務局宛通告に関する勧告

Structural back translation   Recommendation concerning notifications addressed to the International Labour Office of statistics and other such information concerning the exit-of-country, entrance-of-country, return-to-country and transit of migrants

"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.

The story changed, however, after 1925, when universal male suffrage was introduced. A growing number of Korean and Taiwanese migrants to Japan registered to vote, and in the 1932 general election twelve Korean candidates stood for the Japanese parliament, of whom one -- Pak Chunkim, from the Tokyo constituency of Honjo-Fukagawa - was elected. (Matsuda 1995, 102) The inclusion of colonial migrants in the Japanese franchise, however, was not a simple victory for civic rights. For one thing, the proportion of immigrants who enrolled to vote remained very low, in part because the franchise was restricted to males over 25 those who had lived in the same constituency for at least one year. As a result, the total number of Korean residents enrolled to vote in 1936 was a mere 41,829. (Matsuda 1995, 37)

Matsuda, Toshihiko. 1995. Senzenki no Zainichi Chōsenjin to senkyōken. Tokyo: Akashi Shoten.

"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.

"colonial migrants"

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.

"immigrants"

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.


"Chinese"

Morris-Suzuki attempts to pull off a sleight of hand with affiliation statistics concerning "migrants from the Japanese colony of Taiwan in Japan".

Around 42,000 Chinese labourers were also transported to Japan during the War, of whom some 31,000 were still in Japan at war's end. In addition, there were about 28,000 migrants from the Japanese colony of Taiwan in Japan, making a total Chinese population of almost 60,000 in 1945. (Vasishth 1997, 132) Japan's imperial expansion was also associated with other movements of people between colonial territories or across the frontiers of empire: mass emigration from Korea to Manchuria, for example, as well as a smaller flow of immigrants from China to the Japanese colony of Taiwan.

Vasishth, Andrea. 1997. "A Model Minority: The Chinese Community in Japan". In Japan's Minorities: The Illusion of Homogeneity. Ed. Michael Weiner. London: Routledge.

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 on "Taiwanese and Chinese"

In all, approximately 42,000 Chinese were transported from the mainland between 1943 and 1945. The death rate in certain camps exceeded 50 per cent and by the end of the war there were only 31,000 survivors. . . . Both Taiwanese and Chinese labourers were repatriated by the American occupation authorities between 1945 and 1949. . . . All labourers from the mainland, with the exception of ninety-nine who chose to remain, were repatriated. In addition, there were approximately 28,000 Taiwanese in Japan at the end of the war. . . . [O]ver 14,000 Taiwanese elected to remain in Japan, so that in 1948 the total number of resident Chinese was 34,000 (Uchida 1949: 7). [Page 131]

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

Subjects

"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.

Second, the ideas that resurface in present-day debates have a lineage that goes back to the nineteenth and early twentieth centuries. The legal framework of Japanese nationality was first set in place at a time when the creation of the Japanese colonial empire was just beginning, and this framework was further refined and developed as the empire grew. The boundaries of nationality, subjecthood and citizenship were therefore dynamic and contested. They were also riven with paradoxes, many of which arose from a central contradiction: the need for the Empire to unite its diverse subjects into a single loyal body while simultaneously seeking to divide rulers and ruled into a hierarchy of groups with separate sets of rights. As the Japanese empire expanded during the Asia Pacific War, colonial subjects in Korea and Taiwan were encouraged to see themselves as part of the inner circles of a multiethnic Greater Asia Co-Prosperity Sphere [Dai Tō-A Kyōeiken], in which increasingly complex layers of rights and duties distinguished peoples of the metropolitan core, the formal colonies, quasi-colonies like Manchukuo and occupied areas. Identity, subjecthood, legal nationality and voting rights did not necessarily go together, and seldom coalesced into a single national heart.

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.


Citizens

In the case of Japan, a single coherent framework was used to separate formal nationality from substantive citizenship: that is, to divide the rights and duties of subjects of the colonies [gaichi] from those of "Japanese proper" [naichi], and so to deal simultaneously with the questions of unequal civic rights and conscription, and with the problem of the potential intermingling of people from different parts of the empire. This framework was the koseki or family register system, which has been described as creating "states within a state". (Tashiro 1974, 795) In other words, while all colonial peoples possessed "Japanese nationality" -- Nihon kokuseki -- in terms of international law, they also had what might be termed a "regional citizenship" in terms of their family registration [koseki]. Each colony had its own family registration law, and people were not free to move their registration between one colony and another, or between the colonized "external territories" [gaichi] and "Japan proper" [naichi].

This system did not in itself prevent the movement of people between different parts of the empire, but it did ensure that (for example) colonial migrants to Japan were always distinguishable from the metropolitan population in terms of legal status. . . . The description of the system as creating "states within a state" seems particularly appropriate because the rules for changing family registration precisely mirrored the rules for changing nationality. For example, in marriages between people with family registration in different regions of the empire, the wife acquired the family registration of her husband, just as, in marriages between people of Japanese and foreign nationality, the wife was assumed to take her husband's nationality.

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 on "nationality" and "regionality"

[P]roblems of gain and loss of Japanese nationality in relation with foreign countries . . . are intimately connected with problems of gain and loss of regionality . . . because, when seen from today, the Interior, Chosen, and Taiwan can be thought to have exhibited the appearance [of being] like "small states within one state".

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.


Nationality

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).

The Japanese law of 1899 and the British law of 1914 resembled each other in the sense that they both defined the people of the empire as "Imperial Subjects", rather than as "citizens", and that the status of an Imperial Subject was defined primarily in terms of allegiance to the Crown or Emperor. The greatest difference between the two systems, however, was that nationality in the British empire was based on the principle of ius [sic = jus] soli, which grants citizenship to anyone born in the nation or colony -- in part a legacy of the fact that for long periods of British history a substantial proportion of the ruling class had been of foreign ancestry -- while Japanese nationality was based on ius [sic = jus] sanguinis, which grants citizenship based on ancestry.

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
allegiance to Crown or Emperor"

Britain's Nationality and Status of Aliens Act defined possession of "British nationality" in relation to "His Majesty's dominions and allegiance". Being born "within His majesty's allegiance" was a matter of being born in a place where by any lawful means "His Majesty exercises jurisdiction over British subjects" -- whereas "His Majesty's dominions" meant more narrowly only territories over which His Majesty exercised sovereignty.

Japan's 1899 Nationality Law did not in any manner define possession of the nationality of Japan, as the definition of the status of being Japanese, in terms of either subjecthood or allegiance. The only term in the 1899 law that could possibly be construed to have anything to do with allegiance was kika, the term adopted by Meiji legalists to mean "naturalization" in the sense this term had come to be used internationally.

In early Japanese histories this Chinese term was used to mean, literally, "submit [to the moral authority of a local sovereign] and change [one's territorial affiliation by enrollment in population registers under the sovereign's control]". However, "naturalization" as a matter of acquiring "nationality" was not possible in Japan until the 1899 Nationality Law, which used the term "kika" to mean the acquisition of nationality as the result of enrollment in a Japanese family register after receiving permission to do so upon application for nationality -- which was unlike the process of acquiring nationality by operation of the law when filing a notification of marriage, adoption, or acknowledgement.

The point, though, is that there are no "subject" or "allegiance" metaphors anywhere in Japan's nationality laws, past or present.

The reason for this is simple. "Subject" in Japanese law defined the status of a national in relation to the sovereign. "Nationality" defined -- and still defines -- a national in relation to the state.

"Japanese nationality based on jus sanguinis,
which grants citizenship based on ancestry"

Not exactly.

Under no conditions is nationality in Japan ever "granted". It is always "acquired" -- i.e., obtained, gained -- by application of the law or through permission to naturalize. No granting authority stands between a person qualified to acquire nationality, either by notification or by permission to naturalize.

Past and present, nationality has been acquired (obtained, gained) as the result of operation of the law when filing a qualified notification of birth, or through permission to naturalize.

Until 1950, it was also acquired through notification of qualified cases of marriage, adoption, or aknowledgment.

Since 1985, a qualified minor child has been able to acquire nationality through legitimation. This means its parents must be married, at least one of the parents must recognize the child, and the recognizing parent must have been Japanese at the time the child was born and must still be Japanese.

As for "ancestry" -- the more precise term would be family lineage, in particular parental (paternal or maternal) lineage. The greater problem is that "jus sanguinis" or "right of blood" is not the only criterion for obtaining nationality, even at time of birth. At time of birth, a qualified child obtains nationality through timely notification, and the operating criterion can be either jus sanguinis or jus soli (right of soil).

In the 1899 and 1950 laws, lineage criteria were primarily patrilineal (father Japanese) and secondarily matrilineal (mother Japanese). Since 1985, the criterion has been ambilineal -- the father or the mother is Japanese. No nationality is automatically acquired at time of birth. Notification must be affected in a timely manner, and paternal acknowledgment must also be timely.

Past and present, jus soli (right of soil) has applied when a child was born in Japan to parents both of whom were stateless, or to unknown parents.

Nationality derived through marriage, adoption, or acknowledgement was not based on lineage. While nationality through naturalization was easier for applicants whose mother or father were or had been Japanese, or whose wife had been Japanese, it was also easier for those who were born in Japan regardless of their relationship to a person who was or had been Japanese. In any event, Japanese nationality has been available to anyone who has met the full list of general conditions for naturalization, which have not been ancestral, at the discretion of the Minister of Justice.


Koreans in Manchuria

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)

[ Hsu 1932 -- Morris-Suzuki does not provide particulars about this source. ]

Shinobu, Junpei [sic = Jumpei]. 1932. "A Japanese View". In Problems of the Pacific 1931. Ed. Bruno Lasker. Chicago: University of Chicago Press. 286-289.

Park, Hyun Ok. 2005. Two Dreams in One Bed: Empire, Social Life and the Origins of the North Korean Revolution in Manchuria. Durham NC and London: Duke University Press.

"Hsu 1932" also appears in Bruno Lasker (editor), Problems of the Pacific, 1931, some editions of which bear the subtitle "Economic Conflict and Control". The book is a compilation of the Proceedings of the 4th Conference of the Institute of Pacific Relations, Hangchow and Shanghai, China, 21 October to 2 November 1931.

The conference was convened a month after the Manchurian (Mukden) Incident in September and four months before the establishment of Manchoukuo in March 1932.

Hsu's and Shinobu's contributions are under a section called "Japanese Subjects in Manchuria" in the chapter on "Extrateritoriality". Hsu's contribution is called "A Chinese View" and Shinobu's is called "A Japanese View".

The Institute of Pacific Relations, founded in 1925, evolved into an advocacy group that largely supported China's opposition to Japan's activities in Manchuria. It also had strong leftist leanings.

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?


Postwar developments

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)

Kim T'ae-Gi. 1997. Sengo Nihon Seiji to Zainichi Chōsenjin Mondai. Tokyo: Keisō Shobō

"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.


Territoriality

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"

"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.

"bureaucratic tangles"

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".

Andrea Vasishth
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.


Biographical note

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.

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Ninomiya Masato 二宮正人
1983

国籍法における男女平等
Kokusekihō ni okeru danjo byōdō
[Male/female equality in nationality law]
東京:有斐閣、1983
Tokyo: Yūhikaku, 1983
14, 320, 5 (English contents, Japanese index) pages, softcover, jacket

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)

CHAPTER IV  HISTORICAL DEVELOPMENT AND PRESENT
            SITUATION OF NATIONALITY LAW IN JAPAN
A. Historical development
   1. pre-Meiji era
   2. Post-Meiji era
B. Present situation of nationality law in Japan
   1. Nationality of married women
   2. Equality between the sexes and the requirements for
      naturalization
   3. Equality between the sexes concerning nationality
      at birth

CHAPTER V  CONCLUSION : REFORM OF THE NATIONALITY LAW
           IN JAPAN
A. General overview
B. Trends in comparative law concerning nationality
   and euality between the sexes
C. The Constitution of Japan and the principle of
   jus snaguinis a patre in the nationality law
D. Avoidance of positive conflict of nationalities

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).

Concerning this [situation in which an increasing number of jus sanguis states are replacing patrilineality with ambilineality in their nationality laws] two nationality confirmation lawsuits were raised [filed] in 1977. They somewhat differ in particulars, but essentially they are of the same purport; their aim is to cause a child whose father is an alien man and whose mother is a Japanese woman to acquire the nationality of Japan. The complaints of the plaintiffs were rejected in the court of first instance and the court of second instance, and presently they are under appeal in the supreme court. [Note 87]

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):

On 25 December 1981 a Nationality Law Subcommittee (国籍法部会 Kokusekihō bukai) was created in the Legislative Council (法制審議会 Hōsei shingikai) [legislation deliberation committee], the advisory body [consultative organ] of the Minister of Justice, and deliberations concerning revision of the law were begun.

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Haruka Nomura
2010

Making the Japanese Empire: Nationality and Family Register in Taiwan, 1871-1899
Japanese Studies
(The Japanese Studies Association of Australia)
(Routledge)
Volume 30, Number 1, May 2010
Pages 67-79

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

Nomura's abstract consists of the following paragraph (Nomura 2010, page 67, underscoring mine).

This paper aims to reconnect the history of modern Japan with that of Japan's colonies by examining debates over the legal inclusion and exclusion of colonial Taiwan in 1899. It examines why and how an inconsistent legal structure evolved within the Japanese Empire. I argue that the creation of the Japanese nation was intertwined with the empire, and that this can be seen in the discriminatory deployment of the Family Register and Nationality Laws. Japan included Taiwan within the scope of the Nationality Law to achieve full sovereignty over its territory but also excluded the colonised people of Taiwan from the family register system to deny them citizenship. The rapid reconfiguration of the idea of 'Japan' under the strong influence of the West added significant ambivalence to this process, and thus to the making of the nation-empire.

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.

"discriminatory deployment"

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

[ Introduction -- Paragraph 1 (Nomura 2010, page 67) ]

In 1899, four years after Japan acquired Taiwan through the Sino-Japanese War, Japan promulgated a Nationality Law (kokusekihō) that conferred Japanese nationality (kokuseki) on every one of its new Taiwanese subjects. Taiwan was the only Japanese 'colony', recognised by Western empires as such, to be included in the Japanese Nationality Law. The possibility of granting Japanese nationality to the colonised incited heated debates among Japanese lawmakers. The issue was not simply the Nationality Law alone but also the family register system (koseki) enshrined in the Family Register Law (kosekihō) of 1871. The family register worked as a mechanism for differentiation among imperial subjects, at the same time as the Nationality Law incorporated Taiwan territorially. The dual use of nationality and the family register exemplified how the empire shaped the nation's subjects and the territory as the centre of a hierarchical imperial configuration. How and why did this structure evolve?

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)

[ Introduction -- Paragraph 2 (Nomura 2010, pages 67-68) ]

The construction of a legal system for the Japanese nation was intertwined with the establishment of the legal foundation of the empire. Both processes were shaped by the extreme sensitivity of the Japanese government to the 'West' that encompassed admiration and rivalry as much as fear and hostility, and in turn framed the national perception of self as well as of the surrounding world. [Note 1] The controversy over the legal status of Taiwan within the empire manifested these mixed feelings. The debate was closely linked with Japan's long-standing aspiration to obtain full sovereignty for itself by removing extraterritorial rights for Westerners residing in Japan. The national objective to revise treaties that stipulated extraterritoriality also led to a particularly fluid and volatile situation surrounding the legislation, as Japan underwent rapid structural reformation to acquire the apparatus of a Western state. The creation and implementation of the Nationality Law in this unstable and crucial period helped Japan develop a functional empire, while the family register system insulated the nation from the colonies. This paper refers to the inclusion of the colonised within a single sovereign realm as 'empire-building', and the thrust of the colonial centre to separate itself from colonies as 'nation-building'. It explores how these two trajectories were interconnected in the early Japanese Empire.

[Note 1] I use the term 'the West' to mean European maritime empires and the United States, with the assumption that such a concept existed among contemporary Japanese intellectuals.


"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).

Japanese colonialism came to incorporate an assimilationist tendency, due partly to the perceived and actual proximity to the colonised, as well as an inclination to emphasise its difference from the West.

Well, either there is or is not "proximity" -- and it is fairly clear that Taiwan and Chosen were very close to the Interior. Not once, though, does Nomura Not once does she allude to the fact that Japan poured all manner of people into Taiwan as it began securing its new territory, and this migration led -- naturally, and from the beginning with some degree of official approval -- of social intercourse with Taiwan's population. Development of all manner of infrastructure, and exploitation of resources, demanded a committment of people from the Interior.

Let the following paragraph -- among numerous other candidates -- be my last example of the wrongness of Nomura's contentions (Nomura 2010, pages 72-73, underscoring mine).

[ First part of paragraph omitted ] . . . Although the [family] register in principle exempted persons whose household was located outside the state borders of 1889, [Note 25] those outsiders who married or were adopted into Japanese households easily gained legal rights and duties. Some intellectuals even advocated inter-ethnic marriage to 'assimilate' the colonised. [Note 26] Minor changes in the format of the family register took place several times, but a broader reform to the Family Register Law only took place in 1947, after Japan's defeat in the Asia-Pacific War.

While the family register ascribed different social status to different subjects in the family state, the Nationality Law of 1899 defined the geographical extent of the exercise of Japanese sovereignty. This Nationality Law straddled international and domestic law, and three concerns dominated discussion during its legislative development: consistency with nationality laws of other countries, compatibility with domestic civil law, and Japan's national interests. First, the law had to be acceptable to the West in order to ensure recognition of Japan as a fully fledged sovereign state. Accordingly, the jurists carefully consulted with foreign advisors and reviewed the nationality laws of at least 29 countries, 22 in Europe and the Middle East, and seven in Latin America. [Note 27] Second, the law had to be consistent with the hierarchical family embodied in the family register system and the Civil Code. [Note 28] Whereas the Code Napoleon, on which the Civil Code in Japan was modelled, forced French women to adopt the nationality of a foreign husband, the Japanese nationality law required a foreign husband to take on Japanese nationality if he entered a Japanese household by marriage. According to one drafter, Hozumi Nobushige, this was to avoid the creation of households comprised of different nationals. [Note 29] Third, Japan’s national interests had to be preserved. Here again, the Western presence cast a shadow over the debate. In the 1870s and 1880s, some Japanese intellectuals repeatedly expressed anxiety over possible Western cultural and economic dominance if Japan permitted Westerners to dwell freely outside extraterritorial foreign quarters. [Note 30] Mirroring these concerns, the Nationality Law detailed conditions for naturalisation so strict that legislators called the legislation 'a kind of naturalisation law'. The legislation of the Nationality Law demonstrated the pursuit of national identity and power by Japanese leaders through the adoption of Western institutions.

[Note 24]  Omitted here.

[Note 25 and References]  As an exception, the Family Register Law of Japan proper included only the Ainu people in Karafuto as late as in 1924. See Kaiho, "'Iiki' no naikokuka to tōgō["], 229-262. [References: Kaiho Yōko, "'Iiki" no naikokuka to tōgō" [The Domestication and Consolidation of the Alien Land], in Kanō [sic] Masanao and Yui Masaomi, eds, Kindai Nihon no tōgō to teikō. Nihon hyōronsha, 1982, 229-262].

Nomura's comment in odd, and like a number of her English dubs for the titles of her Japanese sources, the one here is offkey

The title of the article by Kaiho Yōko (海保洋子) --「異域」の内国化と統合 -- translates "The morphing-into-the country [internalization, domestication] and integration of an "different [alien] territory". Some versions of Kaiho's article are subtitled "Ezochi kara Hokkaidō e" (蝦夷地から北海道へ) or "From Ezochi to Hokkaidō". She has written mainly about Ainu, and this article concerns how Japan incorporated what had been mainly Ainu territory into the prefectural polity -- a process that began well before the Meiji period, but became politically decisive when prefectures began to be formed shortly after the start of the Meiji period.

The source volume in which Kaiho's article appears is one of four volumes compiled by Kano Masanao (鹿野政直) and Yui Masaomi (由井正臣), collectively called 近代日本の統合と抵抗 or "Integration and resistance of [in] recent-era [modern] Japan".

[Notes 26-30]  Omitted here.

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Ōnuma Yasuaki   大沼保昭
2004

在日韓国・朝鮮人の国籍と人権
Zainichi Kankoku/Chōsenjin no kokuseki to jinken
[Nationality and human rights of Kankokujin (ROK Nationals) and Chosenjin (Chosenese) in Japan]
東京:東信堂, 2004
Tokyo: Tōshindō, 2004
xii, 394 pages, hardcover

The main object of this book is to re-examine the implications of "Circular No. 438 and the 1961 Grand Bench ruling" -- the title of Section 1, which kicks off Chapter 1 -- "The logic of the loss of the nationality of Japan concomitant with the effecuation of the San Francisco Peace Treaty" (Ōnuma 2004: 33-36).

Throughout the book, Ōnuma returns to Circular No. 438 -- the notification issued by the Minister of Justice which caused former exterior subjects to lose their Japanese nationality on the day the peace treaty came into effect -- and to the ruling of the Grand Bench of the Supreme Court on 5 April 1961, which agreed with the Japanese government that the circular was legal, and therefore caused the plaintiff to lose her nationality on 28 April 1952.

28 April 1952

By William Wetherall

On 28 April 1952, both Japan and "Korea" (Chōsen) regained their sovereignty -- Japan from the extraterritorial authority of the Allied Powers represented by GHQ/SCAP -- "Korea" (Chōsen) from Japan, which in 1910 had annexed Korea and nationalized its people as Japanese. With sovereignty over Chōsen, as Japan had renamed Korea, went sovereignty over its people. Hence the people of "Korea" (Chōsen) would lose the Japanese nationality that had come with the 1910 "union" of Korea with Japan.

Since 1948 there have been two Korean states, the Republic of Korea (ROK) and the Democratic People's Republic of Korea (DPRK). On 28 April 1952, these states were at war over the territory and people of "Korea" (Chōsen). Today, half a century later, "Korea" continues to be divided. And "Koreans" and others in Japan who qualify as remnants of annexation-era migrants to the prefectures, and their descendants, are still teathered by out-moded postwar laws that prevent them from fully participating in Japanese society, the only society most have ever known or will know.

Chapter 2 examines "The relationship between nationality change and territorial change" and looks at "minzoku jiketsu [national (i.e., racioethnic) self-determination] in countries all over the world -- including instances of nationality change in Austria in relation to Germany, Ethiopia in relation to Italy, and the Philippines in relation to the United States.

Chapter 3 explores "The legal systems of nationality and immigration control in Nit-Chō relations" -- meaning nationality in "Chōsen" as an entity of Japan, and in "Nan-Boku Chōsen" (North and South Chōsen) after Chōsen divided into two independent states -- and the status of "Chōsenjin" (Chosenese) and "Chōsen kokuseki" (DPRK nationality) in Japan, given the relationship between Japan and DPRK.

Chapter 4, the last, ties the other three chapters together as Ōnuma's underscores his view that Japan's mass denationalization of Chōsen subjects on in 1952 broke -- and continues to break -- all manner of international conventions and customary laws. Unfortunately, international standards of justice -- such as they are -- do not have as much authority as Ōnuma would like them to.

Ōnuma has been working on the theme of nationality and territorial change for most of his academic career. The book under review, he explains, originated with a paper he finished in 1979 after five years of work, shortly before he left Japan for a two year stint in the United States. The paper eventually inspired the first article he published in English -- "Nationality and Territorial Change: In Search of the State of the Law", Yale Journal of World Public Order Volume VIII, Number 1, (1981). (Page 382-383)

For the full text and my translation of Circular 438, see Civil Affairs A No. 438 notification.

For the full text of the 1961 Grand Bench ruling, the received English version, and my analysis and commentary, see Kanda v. State, 1961: Interior woman who married Chosen man lost nationality.


Biographical note

Ōnuma Yasuaki, born in Yamagata in 1946, graduated from two departments in the Faculty of Law at the Univeristy of Tokyo in 1969 and 1970. He immediately joined Todai's Faculty of Law as a research assistant, by 1973 was an associate professor, and became a full professor in 1984. He is presently a professor of international law at Todai's Graduate Schools for Law and Politics.

In addition to numerous articles in periodicals from newspapers to academic journals, and several collaborative books, Ōnuma has himself authored many books, most of which have been about Japan's "war responsibility" and "postwar responsibility".

His first book, published in 1975, was explicitly about war responsibility, in particular the ideology that led to the formation of "crimes against peace" (1975). He returned to this theme in a 1985 book about Tokyo War Crime Tribunal and war responsibility.

Ōnuma first attracted widespspread attention in 1986, with the publication of his now most famous and most cited work, which is still in print in a revised and expanded "new edition".

大沼保昭 Oonuma Yasuaki
単一民族社会の神話を超えて:在日韓国・朝鮮人と出入国管理体制
Tan'itsu minzoku shakai no shinwa o koete: Zainichi Kankoku/Chōsenjin to shutsunyūkoku kanri taisei
[Transcending the myth of a monoethnic society: Kankokujin (ROK Koreans) and Chōsenjin (Chosenese) in Japan and the immigration ("exist-and-entry-of-the-country") control system]
東京:東信堂、1986 (初版), 1993 (新版)
Tokyo: Tōshindō, 1986 (first edition)
xi, 360 pages, hardcover
Tokyo: Tōshindō, 1993 (new edition)
496 pages, hardcover

Ōnuma's later books have been about "internationaliztion" in history and civilization, between the country of "Wa" and the "Far East" (1988), people abandoned in Saghalin as another aspect of war responsibility (1992), human rights, the state, and civilization (1998), the book under review about nationality and human rights of Koreans in Japan (2004), a primer to international law (2005), another Tokyo Tribunal book that added postwar responsibility to the war responsibility theme (2007), and a book about the "comfort woman" problem and media, NG0s, and the government (2007).

Onama has served numerous stints as a visiting scholar at major universities in the North America, Europe, Australia, and China. He has also received a number of awards including, overseas, the 2nd Riesenfeld Award, given in 2001 on the occassion of the 2nd Riesenfeld Symposium -- "Fifty Years in the Making: World War II Reparation and Restitution Claims" -- at which, apparently, he presented a paper called "Japanese War Guilty and Postwar Responsibilities of Japan", which was then published in Berkekey Journal of International Law, Volume 20, Number 3, 2002.

His interests include traveling (especially to places which have cultural remains), music appreciation (particularly opera), skiing, and manga -- according to his University of California website.

Stefan A. Riesenfeld Memorial Award

The prize was established after the death of Stefan A. Riesenfeld (1908-1999), a native of Germany who migrated to the United States via Italy after the rise of Hitler. He learned his English while working and studying at Boalt Hall from 1934 to 1937, and took a JSD at Harvard University in 1940, the year he became a US citizen.

During World War II, Riesenfeld became a US Navy officer and served in the South Pacific, rather than in the Army in Europe. After the war, however, he was a civilian legal adviser to the military government in West Germany, where he helped establish the legal foundation of the Federal Republic of Germany.

In 1952 Riesenfeld joined the law faculty at Boalt Hall, where he distinguished himself as one of the founders of comparative international law in the United States. The prize in his name is given in recognition of contributions to this burgeoning field of law, represented at Boalt by the Berkeley Journal of International Law.

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Sasaki Teru   佐々木てる
2006

日本の国籍制度とコリア系日本人
明石ライブラリー 99
東京:明石書店、2006年9月25日
190ページ

Nihon no kokuseki seido to Koria-kei Nihonjin
[Japan's nationality system and Korea-related Japanese]
Akashi Library 99
Tokyo: Akashi Shoten, 25 September 2006
190 pages, hardcover

Forthcoming.

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Sawaki Takao   澤木敬郎
1981

拝外主義と排外主義の奇妙な混合:国籍法からみた「日本人とは何か」
Haigai shugi to haigai shugi no kimyo-na kongo: Kokusekiho kara mita "Nihonjin to wa nani ka"
[The peculiar amalgam of worship of the outside and exclusion of the outside: "What are Japanese people?" as seen from the Nationality Law]
朝日ジャーナル
Asahi jaanaru
[Asahi Journal]
Volume 23, Number 32, Issue 1173 (7 August 1981)
Pages 94-97

This is one of many articles that appeared in magazines and law journals during in the late 1970s and early 1980s when the 1950 Nationality Law was being contested in courts and undergoing revision in the legislature. It is one of only a few that I have found to be highly original and insightful.

The importance of Sawaki's article is that -- while he sometimes disrails on sidetracks of criticism of how the Nationality Law has sometimes been high-jacked by bureaucrats who abuse their discretionary powers -- he makes some very important observations about the non-discriminatory origins and workings of the law itself.

For a detailed examination of what Sawaki says in this article about the history and nature of Japan's nationality laws, see 1899 Nationality Law: "The conditions necessary for being a Japanese subject".


Biographical note

Sawaki Takao (1931-1993) was a professor of law at St. Paul's University. He specialized in international private law, which includes nationality law.

During the late 1970s and early 1980s, when the 1950 Nationality Law was being challenged in courts and undergoing revision in a Ministry of Justice committee and the Diet, Sawaki contributed a number of articles about Japan's nationality law to popular magazines as well as legal journals.

I never had the pleasure of meeting Sawaki, though he was one of the three scholars -- with Yamada Ryōichi and Hayata Yoshirō -- who wrote the expert opinion submitted to the Tokyo District Court in Shapiro v. State (1977-u360). The same opinion was submitted in two other nationality confirmation cases, Sugiyama v. State (1978-u175) and Sugiyama v. State (1982-u57), which were represented by the same attorneys. The Sugiyama cases involved my then wife, our two children, and me.

Sawaki also wrote the most thorough overview of the first (Tokyo District Court) decisions handed down in the Shapiro case and the first Sugiyama case in March 1981.

See Sugiyama v. State for further details on both cases and references to related publications.

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Peter H. Schuck and Rogers M. Smith
1985

Citizenship Without Consent
(Illegal Aliens in the American Polity)
New Haven: Yale University Press, 1985
viii, 173 pages, softcover

This book is a spare and provocative exploration of the issues at the center of the long-standing legal controversy over "ascriptive" and "birthright" subjectship or citizenship on the one hand, and "consensual" polity affiliation on the other.

The first paragraph of Chapter 1 on "Two Conceptions of Citizenship" (page 9, [bracketed insertions] are mine).

The customary division of national laws of citizenship into the "principles" of jus soli (place of birth) or jus sanguinis (line of descent) denotes the objective criteria most often used to determine one's citizenship [nationality]. But the conceptions of political membership that have vied for supremacy in Anglo-American law implicate a different, more fundamental dichotomy -- one between the rival principles of ascription and consent. These principles reflect quite distinct understandings of the origins, nature, and obligations of political communities, and each promotes certain values that Anglo-American legislators and judges have embraced at different times and often simultaneously. Each, however, also involves certain difficulties that these decision-makers have tried to avoid. Neither principle, then, seems wholly satisfactory in its pure form. At least since the eighteenth cnetury, therefore, Anglo-American law has embodied compromise doctrines that combine certain features drawn from each conception in the hope of producing pragmatic satisfaction, if not theoretical coherence. As we shall see, however, the two principles are not so easily blended.

The book is must reading for those who believe that automatic, passively-acquired nationality and political rights are benign friends of civil society.

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Catheryn Seckler-Hudson
1934

Statelessness: With Special Reference to the United States
(A Study in Nationality and Conflict of Laws)
Washington, D.C.: Digest Press, American University Graduate School, 1934
xxi, 332 pages, hardcover
American University Studies in International Law and Relations, Number One

Seckler-Hudson collates the minutiae of dozens of nationality laws from countries around the world in this seminal work on statelessness.

  I. Introduction
 II. Statelessness as a Result of Marriage
III. Statelessness of Adults not Resulting From Marriage
 IV. Statelessness of Minors
  V. Consequences of Statelessness
 VI. Conclusions
     Appendices
     Bibliography
     Index

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Shao Dan
2009

Chinese by Definition: Nationality Law, Jus Sanguinis, and State Succession, 1909-1980
Twentieth-Century China
(Historical Society of Twentieth-Century China)
(The Ohio State University Press)
Volume 35, Number 1, November 2009
Pages 4-28

Shao 2009 is reviewed on an independent page as Shao Dan on "Chinese" nationality.

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Shirai Miyuki (editor)  白井美友紀 (編集)
2007

日本国籍を取りますか?
(国家・国籍・民族と在日コリアン)
東京:新幹社、2007
252ページ

Nihon kokuseki o torimasu ka?
(Kokka, kokuseki, minzoku to Zainichi Korian)
[Would you take Japanese nationality?
(State, nationality, race and Zainichi Koreans)]
Tokyo: Shinkansha, 2007
253 pages, paperback

The editor, Shirai Miyuki, was born in Shizuoka prefecture in 1967. She graduated from the literature department of Osaka Univerisity. She was a reporter for a Zainichi Korean related monthly magazine, and at the time she compiled this book she was working for a company that distributes ROK dramas.

The book is organized into five chapters, each with three contributions, in addition to a preface and afterword by Miyuki.

Chapter 1

Proposals to acquire Japan[ese] nationality [Nihon kokuseki]

Bee Fun

Attorney (pages 19-34)

I began considering accquiring Japanese nationality inspired by [the consideration of] the special bill for the Nationality Law
What should we do in order for our children to happily live in Japan[ese] society (Nihon shakai)?
We should not leave the problem for the future, but should produce a conclusion with our generation

Ha Byonjun (pages 35-47)

Actualize "right to acquire Japan[ese] nationality (Nihon kokuseki)" and establish the status of "Zainichi" as a mainority (mainoriti)
Acquiring Japan[ese] nationality with no sense of shame is our natural [tozen no, "matter-of-course"] right
Zainichi Koreans [should] establish their independence from the home country (hongoku), and live as a natural body (shizentai) [live naturally] while valuing [the home country] as [their] roots

Ota Seiichi

Liberal Democratic Party, House of Representatives Member (pages 48-60)

In pace of meaningless local suffrage propose an unconditional Nationality Law
Local suffrage is nothing more than an intermediate answer
Even if this is actualized problems due to nationality will remain as before
People who cherish the culture of the Korean (Chosen) peninsula are present-age [modern day] people-who-came-across [the sea] (toraijin)
[I] wish to respect this as the politics of Japan

toraijin is an historical term referring to people who migrated, as refugees and others, mainly from what is today the Korean peninsula to what is today the Japanese islands -- at the dawn of Japanese history -- during a period spanning roughly half a millennium during the first millennium (200 to 700) -- when several Korean nations were fighting each other on the peninsula, some with the help of the Japanese Yamato court, which was consolidating its hegemony over various populations in the islands, and refugees and other migrants from the peninsula.

Chapter 2

Living as a Japan[ese] national [Nihon kokumin]

Haku Shinkun

Democratic Party of Japan, House of Councillors Member (pages 63-76)

I naturalized to try living the remaining 40 years of my life with Japan[ese] nationality
Feeling the limitations in "bridging" at the private level [level between people = non-governmental level], I resolved to enter the political world
The Takeshima problem or whatever, can only be solved through by talking together
I'm proceeding hand in hand with people who say "Let's get along with Asia [Ajia]"

Han Cyan'u

Maruhan Corporation, Chairman (pages 77-90)

I will be [of the] Korean race [Chosen minzoku] forever
I boldly acquired Japan[ese] nationality as a right to live

Nationality is something like a license for driving a car
As a Japan[ese] national possessing roots in Korea [Chosen]
I will say what needs to be said in Japan with a broad view

Tei Taikin

Tokyo Metropolitan University, School of Humanities and Social Sciences (pages 91-102)

The experience of living in ROK decided my acquisition of Japan[ese] nationality
One should acquire Japan[ese] nationality also in order to associate with one's ancestorland equally [on equal terms]
Being born in Japan is to be born as a Japan[ese] culture person [Nihonbunkajin]
There is no need to think that a misfortune

Chapter 3

In order to live like [as] oneself [jibun rashiku]

To be continued.

Chapter 4

Toward a diverse Japan[ese] society [Nihon shakai]

To be continued.

Chapter 5

Transcending nation[al] states [kokumin kokka]

To be continued.

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Rogers M. Smith
1997

Civic Ideals
(Conflicting Visions of Citizenship in U.S. History)
New Haven: Yale University Press, 1997
x, 719 pages, hard cover

This thick and complex book has drawn proportionally long and convoluted reviews in law journals and monthly magazines.

Peter J. Spiro
The Citizenship Dilemma
Stanford Law Review
Volume 51, Number 3, February 1999
Pages 597-639

Jeffrey Rosen
America in Thick and Thin [Cover: Citizens and Strangers]
(Exclusion, Discrimination, and the Making of Americans)
The New Republic
Volume 218, Number 1-2, Issues 4,329-4,330
5-12 January 1998, pages 29-36

In what might be called a "hall of mirrors" approach, I will here review both Smith's book and Rosen's review of Smith's book. I will also reveal the outcome of a Supreme Court case Rosen used as a foil for criticizing Smith. The court heard arguments in the case a few weeks before Rosen finished his article, but its ruling came out a few months after the article.

Focus on historical foundations

The value of Smith's book to students of nationality is measured mainly by the thoroughness of its narrative and analysis of the manner in which race and gender structured the meaning of "citizenship" in the United States from its founding to the First World War. The contents of the book show this heavily historical focus.

    Introduction

 1. The Hidden Lessons of American Citizenship Laws

 2. Fierce New World:
    The Colonial Sources of American Citizenship

 3. Forging a Revolutionary People, 1763-1776

 4. Citizens of Small Republics:
    The Confederation Era, 1776-1789

 5. The Constitution and the Quest for National Citizenship

 6. Attempting National Liberal Citizenship:
    The Federalist Years, 1789-1801

 7. Toward a Commercial Nation of White Yeoman Republics:
    The Jeffersonian Era, 1801-1829

 8. High Noon of the White Republic:
    The Age of Jackson, 1829-1856

 9. Dred Scot Unchained:
    The Bloody Birth of the Free Labor Republic, 1857-1866

10. The America That "Never Was":
    The Radical Hour, 1866-1876

11. The Gilded Age of Ascriptive Americanism, 1876-1898

12. Progressivism and the New American Empire, 1898-1912

    Epilogue: The Party of America

In his Introduction, Smith says the aim of his book is to "show that through most of U.S. history, lawmakers pervasively and unapologetically structured U.S. citizenship in terms of illiberal and undemocratic racial, ethnic, and gender hierarchies, for reasons rooted in basic, enduring imperatives of political life" (Introduction, page 1). More specifically, his he seeks to challenge "received understandings of the United States as a Lockean liberal society" (ibid.).

Chapter 1 (The Hidden Lessons of American Citizenship Laws) is, in fact, an examination of how, in Smith's view, American liberals, particularly after World War II, have embraced a romantic view of "American idealism" that handicaps their understanding of the continuing legacy of racism and sexism in the foundations of American "citizenship".

Chapter 2 (Fierce New World: The Colonial Sources of American Citizenship) plunge into the 17th and 18th centuries, with occasional time slips back to as early as the 13th century. The subheads lead up to Smith's principal concerns in the later development of US "citizenship".

The legacy of English Subjectship
The Colonial Pattern: Contested "Wilderness"
Native Americans
African-Americans
Women

Smith sums up his study in the Epilogue.

Smith 1997:471-472

The basic descriptive and explanatory lessons of this study are first, that U.S. citizenship laws have always expressed illiberal, undemocratic ascriptive myths of U.S. civic identity, along with various types of liberal and republican ones, in logically inconsistent but politically effective combinations; and second, that we should expect this to be the case. The founders of the United States did indeed define and construct their new nation in accord with Enlightenment doctrines of individual liberties and republican self-governance more than any regime before and most since, as so many analysts have insisted. And the principles and institutions that those early elites adopted have contributed in many ways to movements that eventually achieved greater liberalization and democratization of the U.S. than the founders ever anticipated. But from Thomas Paine's identification of European-descended American men as the new chosen people of the Protestant God, to the Federalists' and the Whigs' Anglophilic nativism, to the Jeffersonian and Jacksonian doctrines of scientific racism, to the stark evolutionary theories of racial and gender hierarchies during the Gilded age and the Progressive Era, U.S. leaders always fostered senses of what made Americans a distinct "people" that relied in part on inegalitarian ascriptive themes. The history of U.S. citizenship policies demonstrates incontrovertibly most of the nation's past have officially been defined in conformity with those ascriptive doctrines, at least as much as purely liberal and republican ones. And many examples, like the reductions in the rights of African-Americans from the Revolution to the 1850s, and from Reconstruction to the Progressive years, as well as the new restrictions imposed on married women in 1855, Asian-Americans in the late nineteenth century, and homosexuals in the twentieth, all indicate that neither the possession nor the fresh achievement of greater equality can guarantee against later losses of status due to renewed support for various types of ascriptive hierarchy.


Rosen on historical limitations

Of interest to students of racial discrimination in US naturalization laws, Rosen takes Smith to task for leaping from the 1910s to the 1990s, as though developments nationality-related legislation and litigation before and after World War II were not important. He also develops his argument against "universalism" in the allocation of civil rights.

Rosen 1998:34

. . . For reasons that he doesn't explain, Smith ends his history of conflicting visions of citizenship in American law in 1913, at the height of the Progressive ear. The choice is peculiar, for it means Smith has nothing at all to say about the most dramatic change in American legal conception of citizenship: the decision, made largely by the Supreme Court on its own initiative, to abandon the classical model of citizenship after the New Deal and to replace it with a liberal egalitarian vision that was thicker and more universalistic. In the end, if not in the beginning, America was Lockean.

The harbinger of the shift was the Takahashi case of 1948, in which the Court struck down a California law denying commercial fishing licenses to aliens who were ineligible to become citizens. Minimizing the importance of citizenship, Justice Black stressed that the state's interest in denying important rights to any person; and he held that California's interest in conserving its coastal waters was not strong enough to prevent lawfully admitted aliens from earning a living in the same way as California citizens. Black's holding was a dramatic departure from the nineteenth century vision of citizenship: in 1823, Justice Bushrod Washington famously held for the Pennsylvania circuit court that the right to fish in New Jersey oyster beds was not a privilege or an immunity of [US Federal] citizenship, and therefore New Jersey could deny fishing rights to visitors from other status in order to preserve its oysters for its own [state] citizens.

The Universalistic view of citizenship reached its apogee in 1971, when the Court struck down state laws that limited state welfare programs to resident aliens. Classifications based on alienage, like those based on race, were inherently suspicious. Justice Blackmun held, because aliens, like racial minorities, were a "discrete and insular minority," historically victimized by the sort of prejudice "which tends . . . to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." Even on its own terms, Blackmun's opinion was peculiar. It seems odd to point to the political powerlessness of aliens as a sign that they are entitled to special judicial protection, since the traditional exclusion of aliens from the suffrage shows that the nation has not historically relied on the ordinary political processes to protect aliens in the first place. Blackmun's noble universalism threatened to erase the meaning of membership altogether.


Smith and Rosen on affirmative action

Smith fervently deconstructs romantic liberal American idealism because he himself, as a liberal, wants to "suggest how those who favor liberal democratic ideals over ascriptive ones might better define and advance their principles" (Epilogue, page 472). The principles he wishes to more effectively promote include include affirmative action.

One would think that Smith would reject affirmative action on measures on grounds that they are quintessentially inegalitarian, but no. His "civil ideals" include, at least for the United States, "recognition of group disadvantages, like those historically inflicted on racial minorities and women". He makes these points in his Epilogue.

Smith 1997:503 (italic emphasis in original)

. . . I believe that Americans should take their ultimate goal to be expansion of individual opportunities and integrated inclusiveness within a common political culture shaped by all its members on an egalitarian basis, not valorization of subgroup identities. But even in a society riddled with politically fostered inequalities such as the U.S., anti-individualistic measures like majority minority districts and affirmative action programs will often still be defensible means to that end. More broadly, Americans in particular are well advised in evaluating issues like immigration policies, bilingualism, economic development programs, housing and transportation plans, systems of political representation, and civic education to keep one general criterion in view. They should consider how they can adopt measures that will erode the invidious ascriptive hierarchies past policies and laws have built up throughout their history, instead of perpetuating or heightening them.

Rosen thinks it is "bizarre for a book about the history of citizenship in America to end with a passionate defense of affirmative action" (Rosen 1998:34). Rosen says "Smith's 'liberal democratic' vision is premised on the idea that American society is so infected by racism and sexism that minorities and women cannot participate equally in 'national self-governance' unless they are compensated for the 'group disadvantages' that have been historically inflicted on them" (ibid., 34).

Rosen goes on to cite other remarks Smith makes in defense of affirmative action, by way of suggesting that Smith is seriously contradicting his own egalitarian "civil ideals". I have to agree with Rosen here: "Smith is so eager to preserve multicultural shibboleths about affirmative action that he goes out of his way, in his footnotes, to criticize liberals . . . who are more skeptical of race and gender preferences, and more strict in their vision of America as a nation defined by a common language and common civic traditions to which all ethnic groups should aspire to assimilate" (ibid., 34).

Miller v. Albright

Rosen prefers a "thick and particularistic" approach. He began his review of Smith 1997 with a summary of a case that had just been argued before the Supreme Court, but not yet decided, at time the wrote and filed the review in late 1997.

The case known as Miller v. Albright (96-1060) was argued on 4 November 1997 and decided on 22 April 1998. Here is both the question that the appellant court had to address in 1996, and the case summary from the Supreme Court decision. Both are more informative and accurate than Rosen's overview, and are free of his "Madam Butterflyish twist" dramatics.

United States Department of Justice
Briefs 1996

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

LORELYN PENERO MILLER, PETITIONER
v.
MADELEINE K. ALBRIGHT, SECRETARY OF STATE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

QUESTION PRESENTED

Under the Immigration and Nationality Act of 1952, a person born abroad out of wedlock to a United States citizen father and an alien mother can become a United States citizen, as of the date of birth, only if the person is legitimated or paternity is acknowledged or adjudicated during the person's minority. 8 U.S.C. 1409(a). In contrast, a person born abroad out of wedlock to a United States citizen mother and an alien father is deemed a United States citizen at birth, without any requirement of legitimation or proof of maternity during the person's minority. 8 U.S.C. 1401(g). The question presented is: Whether 8 U.S.C. 1409(a) violates the equal protection component of the Fifth Amendment's Due Process Clause.


Cornell University Law School
Legal Information Institute
Supreme Court Collection

SUPREME COURT OF THE UNITED STATES

MILLER v. ALBRIGHT, SECRETARY OF STATE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-1060
Argued November 4, 1997
Decided April 22, 1998

Petitioner was born out of wedlock in 1970 in the Philippines. Her mother is a Filipino national. Her father, Charlie Miller, is an American citizen residing in Texas who served in the United States military in the Philippines at the time of petitioner's conception. He never married petitioner's mother, and there is no evidence that he was in the Philippines at the time of her birth or that he ever returned there after completing his tour of duty. In 1992, the State Department denied petitioner's application for registration as a United States citizen. After a Texas court granted Mr. Miller's petition for a paternity decree finding him to be her father, petitioner reapplied for citizenship status, which was again denied on the ground that the Texas decree did not satisfy 8 U.S.C. § 1409(a)(4)'s requirement that a child born out of wedlock and outside the United States to an alien mother and an American father be legitimated before age 18 in order to acquire citizenship. Petitioner and Mr. Miller then sued the Secretary of State in Federal District Court in Texas, seeking a judgment declaring her to be a United States citizen. They emphasized that the citizenship of an out-of-wedlock, foreign-born child of an alien father and an American mother is established at birth under §1409(c), and alleged that §1409's different treatment of citizen fathers and citizen mothers violated Mr. Miller's Fifth Amendment equal protection right by utilizing the suspect classification of gender without justification. Concluding that Mr. Miller did not have standing, the court dismissed him as a party and transferred venue to the District Court for the District of Columbia. That court dismissed the suit on the ground that federal courts do not have power to grant citizenship. The Court of Appeals affirmed, holding that petitioner had standing to sue, but concluding that the §1409 requirements imposed on a child like her, but not on the foreign-born, out-of-wedlock child of an American mother, were justified by governmental interests in fostering the child's ties with this country and with her citizen parent.


Rosen on Miller v. Albright

Rosen, in his conclusion, returned to this case, which had not yet been decided.

Rosen 1998:35-36 (italic emphasis in original)

In the Miller case, the Court has the opportunity to drive a wedge between the idea of exclusion and the idea of discrimination, by endorsing a vision of citizenship that is thick and particularistic. Congress has broad discretion to exclude certain people or groups from the privileges of citizenship, the Court could say; it can discriminate among groups of aliens (or groups of citizen parents) in deciding who is eligible for naturalization; and it is free to discriminate between citizens and aliens in apportioning public benefits. But it may not discriminate among citizens once they are lawfully admitted to the country.

This thick, particularistic vision of citizenship could lead, in theory, to jarring results. Congress could single out certain racial, religious, or sexual minorities, Muslims or women or gays and lesbians, and deny them access to naturalization. But when I defend Congress's power to discriminate among aliens as a constitutional matter, I certainly do not mean to endorse unreasonable and illiberal discrimination as a political matter. You don't have to be Rogers Smith to believe that naturalization policies should not mock the egalitarian ideals that make American citizenship worth seeking in the first place. Legislative power may be abused; and it is hardly the end of the story. If the Court upholds Congress's power to discriminate among potential citizens on the basis of their parents' gender, one hopes that the decision would provoke a robust political debate about whether gender distinctions in our naturalization laws should be repealed on policy grounds, because they rest on archaic notions of family relations that are hard to reconcile with modern conceptions of gender equality (not to mention modern genetic testing). This is a debate that should take place in Congress rather than the Courts. It would strengthen the country's commitment to its civic ideals.

By resurrecting the distinction between citizens and aliens that Justice Blackmun and Rogers Smith have tried to obscure, the Court could also resurrect the meaning of citizenship itself as something more than a pale and disembodied legalism. American citizenship is a particular status in a particular place, not a method of mending the world and hastening the advent of the messiah. Only if the status of being a citizen is plausibly distinguished from the status of not being a citizen can Americans view citizenship as a meaningful synecdoche of their civic identity. There is no inconsistency, in other words, in allowing some discrimination among non-citizens while forbidding all discrimination among citizens. Citizenship itself, during the Founding and Reconstruction eras, was the status from which the anti-discrimination principle flowed; and by reaffirming its relevance in American law, the Court might begin to restore its relevance in American life.


The Supreme Court decision

The full bench of nine Supreme Court judges ruled 6-3 in affirmation of the appellant court's ruling against Miller.

Held:The judgment is affirmed.

Many newspaper reports, editorials, and op-eds pointed out that two of the affirming judges could have thrown the decision the other way, for they seemed to agree with the dissenting opinion that the law in question was unconstitutional. They concurred with the appellant court, however, because they felt that Miller's father, not Miller, was the victim of the law's discrimination, and therefore she had no standing in the case. Yet the Federal district court which first heard the case had dismissed the father as a petitioner on the grounds that he had no standing in the case.

Gigi Ross-Fowler on Miller v. Albright

Gigi Ross-Fowler, a theologian and critic, attended the 4 November 1997 hearings after reading the briefs. She expressed her disappointment in both, in an article which appeared the same month as Rosen's (findarticles.com).

Gigi Ross-Fowler
The "GI sperm-scattering" statute
Off Our Backs
[Volume 28, Number 1]
January 1998

To my mind, this law clearly sanctions American male soldiers stationed abroad to father children without accepting responsibility for them. One law professor referred to it as the "GI Sperm Scattering Statute." But neither the briefs nor the Supreme Court argument discussed what the law was really about. As I sat listening, I thought about a paper I wrote on the purpose of laws in early Celtic society and realized how apropos my conclusions were to what was going on in front of me.

In that paper I wrote about what looking at Celtic law revealed about the status of women. While the legal texts do not reflect how he status of women were actually treated, they show the ideal the lawmakers were striving for. Applying that idea to American society, I thought about the values reflected in this law, and I saw very clearly the message sent by our mostly male Congress.

It's a common stereotype that American military men abroad have unprotected sex with the local women. This law not only shows that the United States is aware of the prevalence of this behavior, but that this society actually encourages it by absolving men of all responsibility for what happens when they leave the woman and her bed. As long as they haven't married the mother, American men do not have to acknowledge any of their children born abroad; they do not have to financially support them. They don't even have to think about what the consequences of their actions will mean for the women they sleep with.

With many American soldiers stationed in countries with extremely high populations of poor women, the United States, through laws like this one, is ensuring that a number of these women will be even more economically disadvantaged as they struggle to care for children they cannot afford. A struggle that will be exacerbated by the lack of support from their society. They will also be ostracized because not only do most of these cultures stigmatize women who bear children out of wedlock, but they reserve their worse scorn for women who bear the children of foreigners, especially U.S. soldiers. Here is a glimpse of our informal foreign policy.

Off Our Backs: The Feminist Newsjournal began in 1970. Now published four times a year, it claims to be "the longest surviving feminist newspaper in the United States" (official website).

American law, thick and thin

Reading the opinions from the courts that examined Miller v. Albright is to witness the awesome complexity of legal barriers that can stand between individuals and nationality. While proving the momentum if not exactly the vitality of Rosen's "thick and particular" realism, the Supreme Court decision also underscores Smith's contention that US citizenship rests on foundations of discrimination that continue to resist the jack hammers of egalitarian civic ideals.

Gigi Ross-Fowler contends that "the United States is promoting irresponsible, destructive, and violent -- given the power dynamics between American male soldiers and the women they impregnate -- behavior as the standard for fathers, and equality be damned" (ibid).

This fails to represent the more general issue of gender-based nationality. It is also radically off the plane of argument defined by Smith and Rosen -- though reminiscent of Rosen's remark that "Charlie Miller did not marry is Butterfly before abandoning her" (Rosen 1998:29). Yet arguably it reflects, more honestly than the sanitized jargon of federal jurists, the social and sexual sentiments and traditions that conceived, carried, and gave birth to the discriminatory provisions of what today is called Title 8, Chapter 12, Subchapter III, Part I, Section 1409 -- Children born out of wedlock -- in the first place.

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Takemae Eiji
2002

Inside GHQ
(The Allied Occupation of Japan and its Legacy)
New York: Continuum, 2002
xlv, 751 pages, hardcover (2002, reprinted edition)
Translated and adapted from the Japanese by Robert Ricketts and Sebastian Swann

The copyright page states that this book is "a substantially revised and expanded version of GHQ, originally published by Iwanami Shinsho (Tokyo) in 1983". The translators, in a one-page note wedged between 113 pages of endnotes, and a 39-page bibliography and a 37-page index, confess that, in the process of reorganising, updating and editing the draft translation of the original Japanese text, and integrating related materials from Takemae's other writing, and compiling endnotes and whatnot, "Inside GHQ's four original chapters ballooned to eleven, the English typescript from 270 pages to 1,200" (page 674).

This book has to be used with extreme care. It contains some excellent collations of information from primary sources related to the Occupation of Japan. Yet it has many errors of commission and omission that disqualify it as the definitive work it could have been had facts and truth mattered more than ideology.

Here I will focus on what Takemae says about nationality.


1950 Nationality Law

Takemae describes the 1950 Nationality Law as follows (page 499).

Finally, in 1950, as the tougher ARO [Alien Registration Ordinance of 1949] went into effect, the Justice Ministry enacted the Nationality Law. Despite its liberating protections for women and minors, the statute outlawed dual citizenship and stipulated that only persons born of a Japanese father could acquire Japanese nationality, upholding the prewar principle of patrilineal consanguinity (jus sanguinis) and effectively barring Koreans from obtaining full citizenship rights except through rigidly controlled and humiliating naturalisation procedures.

The description is wrong.

The 1950 Nationality Law was enacted by the National Diet, not the Justice Ministry. Though given a new number, it was really a revision of the 1899 Nationality Law, and its revisions were in no sense a fundamental departure from the earlier law.

The 1950 revision did not "liberate" or otherwise "protect" women or minors. It degenderized the 1899 law by eliminating the possibility of acquiring or losing Japanese nationality through marriage -- in line with world trends in nationality law. It also eliminated provisions in the old law for gaining Japanese nationality through adoption, including husband adoption.

Japan's Nationality Law has never outlawed "dual citizenship". In the first place, it is a law about nationality, not citizenship. As such, it minimizes, but has never prohibited, multiple nationality. With respect to its tolerance of dual nationality, the 1950 law is no different from the 1899 law.

Under the 1899 and 1950 Nationality Laws, patrilineality applied only to married Japanese. The 1950 law repeated, unchanged, the provisions in the 1899 law which made children of single Japanese mothers, and children born in Japan to stateless parents or to unknown parents, eligible for Japanese nationality.

Naturalization

Naturalization provisions in the 1950 law were essentially identical to those of the 1899 law. They are simple and, like most provisions of the nationality law past and present, fairly standard. There is nothing "humiliating" about them. Takemae appears to be alluding to extralegal "administrative guidance" that pressured naturalization applicants to adopt "Japanese style" names and otherwise show their willingness to assimilate into the mainstream. However, such administrative guidance has nothing to do with the Nationality Law.

More importantly, though, "Koreans" at the time were Japanese. They could not have naturalized had they wanted to -- because, under domestic law, they were not aliens -- except, thanks to GHQ/SCAP, they were treated as de facto aliens for purposes of alien registration. Chosenese became eligible for naturalization from 28 April 1952, when they were separated from Japanese nationality and became de jure catagorical aliens.

The focus on "Koreans" also reflects a certain narrowness of viewpoint that runs throughout Takemae's book. Provisions in Japan's most general laws and related administrative policies typically affect people as Japanese and aliens, not as Japanese and Koreans.


1985 Nationality Law

Takemae makes two statements about 1985 revisions in the Nationality Law.

[Page 528]  Women's rights received renewed attention in 1985 when Japan ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women. That year the government amended the Occupation-era Nationality Law (1950), which had conferred nationality only through the paternal line, so that today children of mixed marriages are able to acquire Japanese citizenship through either parent, although the principle of jus sanguinis remains in force.

Japan signed CEDAW on 17 July 1980 and had five years to ratify it, before which it had revise affected laws. Revisions to the Nationality Law were promulgated on 25 May 1984 (Law No. 45) and came into force from 1 January 1985. CEDAW was ratified on 25 June 1985.

The "Occupation-era Nationality Law" is really a revision of the Meiji-era law. Though the 1899 law was revised during the Allied Occupation, the revisions were not particularly colored by the Occupation.

Again, "only through the paternal line" is misleading (see above).

Children of "mixed marriages"

The expression "today children of mixed marriages are able to acquire Japanese citizenship through either parent" is also misleading. Presumably Takemae means "today a child of a Japanese national married to an alien is able to acquire Japanese nationality regardless of the gender of the Japanese parent".

Nationality through an unmarried Japanese mother has always been possible. Nationality through an unmarried Japanese father continues to be a bit more difficult than through a Japanese mother -- which further begs clarification of what Takemae meant by "liberating protections for women and minors" (page 498).

[Page 531]  Since the colonial era, Japan has pursued a policy of forcibly assimilating ethnic Koreans and Chinese. Today, the Justice Ministry pressures applicants for naturalisation to adopt a Japanese name, demonstrate a 'Japanese lifestyle' and, in effect, renounce their ethnic heritage as a condition for obtaining citizenship. The revised Nationality Law allows children of international marriages to choose their nationality at the age of 22, but the Ministry instructs local governments to register such children under the name of the Japanese parent at birth, thereby influencing that choice. This assimilationist policy is designed to gradually absorb the Korean minority, transforming potential Korean critics into obedient Japanese. The government recently has promised to simplify naturalisation procedures. To Koreans, however, obtaining citizenship still means accepting Japanese claims of racial superiority and embracing, publicly at least, the same ethnocentric values that have oppressed them as a people -- a form of ethnicide that explains why many choose to retain their alien status rather than naturalise and become second-class Japanese.

There is no foundation for "ethnic" in Japanese law. Perhaps Takemae means "Taiwanese" rather than "Chinese" since there were no issues with "Chinese" during what he calls the "colonial era". In any event, the history of what could be construed as "forcible assimilation policy" is much older and cuts across the entire human condition in Japan, affecting Japanese as well as aliens who would become Japanese.

Describing how children are registered "under the name of the Japanese parent at birth" as an "assimilationist policy . . . designed to gradually absorb the Korean minority, transforming potential Korean critics into obedient Japanese" -- epitomizes this books extreme "victimhood" slant. The practice of registering a Japanese children in the register of its Japanese parent or parents has nothing to do with whether one of the parents is an alien. In any event, the practice predates the start of the nationwide family register system in 1872.

Children of "international marriages"

Apparently "international marriages" is a synonym for "mixed marriages" (see above). In any event, Japan's Nationality Law does not concern such marriages, however defined, much less the children of such marraiges.

Children born to married parents of different nationalities do not necessarily have more than one nationality, while children whose married parents are both Japanese, and children of unmarried parents, may be dual nationals. Adults may also become dual nationals for reasons other than their parentage.

The 1985 law provides that Japanese who have other nationalities declare their intent to remain Japanese and to endeavor to renounce their other nationalities. Not "at" or even "by" the age of 22 -- but within two years after reaching 20, or within two years after acquiring another nationality after reaching 20.

Registration of children

The Ministry of Justice does not instruct local governments as to how to register children. Their legal status and treatment is based on domestic laws and international law.

No child automatically becomes Japanese. If a child of a Japanese parent married to a non-Japanese becomes Japanese, it is only because the Japanese parent has registered the child as Japanese in accordance with the Family Register Law operating in conjunction with the Nationality Law.

By international convention, a national with more than one nationality is usually treated as a national when in a country of nationality. Hence Japan treats Japanese who have other nationalities as Japanese when they are in Japan as Japanese -- meaning they have a family register and are a member of a family register.

The legal name of a member of a register is based on name provisions in the Family Register Law. These provisions are based on principles of family law having nothing to do with ethnicity or assimilation.

"assimilationist policy"

No foundation whatever is provided for the claim that there is a perverse and pervasive "assimilationist policy" preventing "Koreans" in Japan from publicly embracing their putative "ethnic heritage". The variety of individual responses to the condition of being "Korean" in Japan defies the implication that there exists an "ethnic heritage" that "Koreans" are obliged to witness simply because they are "Koreans" -- as opposed to being whatever variety of "Japanese" they wish.

Most of the footnotes that accompany the above and similarly toned paragraphs in this book are to notably radical, some very faulty, sources. Some readers may therefore have difficulty differentiating credible facts in this book -- of which there are many -- from purely ideological critique.

"North Koreans"

Takemae has (Ricketts and Swann have) a thing about "North Koreans" -- who pop up throughout the book, mostly in places where "North Koreans" don't belong in Japan. In one example, he (they) also misrepresent a number of other legal facts (page 530).

Following ratification of the 1982 Refugee Convention . . . North Koreans were permitted to acquire 'general permanent residence', a status more secure than de facto statelessness but less so than the formal treaty rights enjoyed by South Koreans.

1. Japan ratified the Refugee Convention in 1981. This required revision of the 1951 Immigration Control Order, which from 1 January 1982 became the Immigration Control and Refugee Recognition Law.

2. At the same time, the Alien Registration Law was revised to provide "Special Measure Permanent Residence" (SMPR) -- which was tantamount to general permanent residence (GPR) but was totally different in origin.

The legal effects of SMPR did not differ from those of GPR, and SMPR was subsumed under GPR in the list of status categories. However, SMPR was limited to qualified persons who had lost Japanese nationality pursuant to the effects of the San Francisco Peace Treaty, and their qualified offspring. It fell under the Alien Registration Law and was acquired by filing a notice at a local municipal hall. GPR comes under the Immigration Control Law, applications are made at Immigration Bureau offices, and the status is permitted at the discretion of the bureau.

3. The requirements for SMPR did not specify nationality -- much less "North Korean" nationality, which Japan has not recognized. SMPR was available to 126-2-6 (Potsdam affected) aliens and their offspring who had not qualified for the Agreement Permanent Residence (APR) made available to qualified ROK nationals from 1966.

The majority of those who qualified for SMPR were categorically "Chosenjin" (Chosenese) -- a legacy status meaning that their family register is in the former Japanese territory of Chosen -- i.e., on the Korean peninsula. Under Japanese law, "Chosenjin" are regarded as having reverted to the nationality of "Korea" prior to its annexation by Japan as Chosen in 1910. In the eyes of Japan, they are neither ROK nor DPRK nationals, and whether their family registers are north of south of the 38th parallel is of not an issue.

4. "South Koreans" do not enjoy treaty rights in Japan. Some (only qualified) ROK nationals were able to acquire APR under the 1965 status agreement. APR and SMPR were conflated into a new (and somewhat different) Special Permanent Residence (SPR) status in 1991.


Nationality of Koreans in Japan

Takemae makes the following statement concerning the disposition of the Japanese nationality status of Chosenese and Taiwanese after the San Francisco Peace Treaty came into force on 28 April 1952 (page 511, italics in original, underscoring mine)

With the Republic of Korea no longer a party to the peace, the San Francisco settlement avoided the contentious issue of Koreans in Japan. In early November 1951, Foreign Ministry official Nishimura Kumao told the Diet that the government purposely had not included a clause in the treaty offering ex-colonials a choice of citizenship. As independence drew new, Tokyo quietly engineered its own solution to this problem. On 18 April 1952, the day the San Francisco Peace Treaty entered into force, the Justice Ministry unilaterally stripped Koreans and Chinese of their Japanese nationality. The authorisation for this act of radical denationaisation was an internal ministerial directive, Circular No. 438 of 19 April, that stated simply, 'With the coming into effect of the Peace Treaty, Koreans and Formosans shall lose their Japanese nationality.' Many Japanese women married to former colonials also were denationalised, since by law they were listed in their husband's family register (koseki) in Korea or Formosa. [Note 108].

[ Paragraph on treatment of Koreans as aliens after 28 April 1952 omitted. ]

[ . . . ] To discuss legal status and related problems, on 15 February 1952, SCAP's Diplomatic Section brokered the first formal bilateral negotiations between Tokyo and Seoul, but the talks ended in acrimony, and an agreement on the status of South Korean residents would not be reached until the Japan-ROK Normalisation Treaty of 1965. [ . . .]

[Note 108] On Nishimura's statement to the Diet, see Tanaka (1995), pp. 70-1. The Japanese Foreign Ministry had included the option of Japanese citizenship in its own treaty drafts between 1947 and 1950 on the assumption that the Americans would demand such a provision. In fact, however, the Ministry had envisaged citizenship for a select few, intending to forcibly repatriate the majority. Neither Japan nor the Republic of Korea was prepared to offer Koreans a choice in this matter, nor did the Korean movement in Japan ever formulate such a demand. All three parties regarded ethnicity and nationality as synonymous, conflating the very distinct concepts of ethnic identity, nationality and citizenship. On the nationality issue, see Matsumoto Kunihiko, 'Zainichi Chōsenjin no Nihon kokuseki hakudatsu' (The Denationalisation of Koreans in Japan), in Hōgaku, vol. 52, no. 4, 1988, pp. 645-79 and Kashiwazaki Chikako, "The Politics of Legal Status: The Equation of Nationality with Ethnonatinal Identity', in Sonia Ryang, ed., Koreans in Japan: Critical Voices from the Margin, Routedge, 2000, pp. 20-30).

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Tashiro Aritsugu   田代有嗣
1974

国籍法逐条解説
Kokusekihō chikujō kaisetsu
[An article by article commentary on the Nationality Law]
東京:日本加除出版、1974
Tokyo: Nihon Kajo Shuppan, 1974
2 (plates), 3 (preface), 20 (contents), 853 pages, hardcover, boxed
日本加除出版創立30周年記念出版
[Publication commemorating 30th anniversary of founding of Nihon Kajo Shuppan]

This is the standard reference on the workings of Japan's 1950 Nationality Law up to about one decade before its 1985 revision. Most laws and ordinances related to nationality in Japan, beginning with the 1873 Great Council of State proclamation, are appended. The appendix includes nationality measures related to Taiwan and Karafuto.

As a general guide this volume supersedes Hiraga 1950-1951, but Hiraga contains important historial materials not found in Tashiro, such as the "national status" articles of the promulgated but unenforced 1890 Civil Code, and commentary on the . . . .

To be continued.


Biographical note

Tashiro Aritsugu (1928-2007), who passed away just weeks before I created this page, was an attorney and bureaucrat. He was the Director of the Second Division of the Civil Affairs Bureau of the Ministry of Justice, responsible for family register and nationality matters, when he compiled this book.

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William Wetherall
2006

"Nationality in Japan"
In: Soo im Lee, Stephen Murphy-Shigematsu, and Harumi Befu (editors)
Japan's Diversity Dilemmas
(Ethnicity, Citizenship, and Education)
Lincoln (NE): iUniverse, 2006
Pages 11-46 (Chapter 2)

This article, which I began writing and posting in 2002, was my attempt to bring together a lot thoughts which I had previously expressed -- some in published articles, mostly only in drafts -- about nationality law in Japan. Over the decades, I have constantly been correcting and refining my understanding of nationality, and that process has not stopped.

The 2006 article continues to be corrected and updated in the Nationality section of this website as Nationality in Japan: The legal foundations of a raceless nation. At the rate I am revising it, what I used to consider an "A" effort I would now -- in the retrospect of only five years -- give a qualified "C".

While it remains, in my humble opinion, a very solid overview, I continue to find details that need either correction or clarification, or better nuancing. All such revisions are clearly shown on the web version, with boxed commentary on selected matters. For an outline of all my writing on nationality in Japan, with links to features and resources on this website, see Japan's Nationality Law: A primer and guide to other articles.

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Naturalization

Materials about naturalization, in the sense of volitional acquisition of a state's nationality, are grouped here.

Asakawa Akihiro   浅川晃広
2003
2007
Asakawa 2003

在日外国人と帰化制度
Zainichi gaikokujin to kika seido
[Aliens in Japan and naturalization system]
東京:新幹社、2003
Tokyo: Shinkansha, 2003
202 pages, softcover, jacket

Asakawa 2007

近代日本と帰化制度
Kindai Nihon to kika seido
[Recent-period (Modern) Japan and (its) naturalization system]
<Naturalization in the Modern Japan>
東京:溪水社、2007
Tokyo: Keisuisha, 2007
vi, 274 pages, softcover, jacket

Both Asakawa 2003 and Asakawa 2007 are reviewed on an independent page as Asakawa Akihiro on "naturalization" in Japan.

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Kobayashi Yoshinori   小林よしのり
2011

小林よしのり
新日本人に訊け!
帰化 < Naturalized in Japan > ゴーマニズム対論集

東京:飛鳥新社、2011年5月16日
333ページ

Kobayashi Yoshinori
Shin Nihonjin ni kike!
[Listen to the new Japanese!]
Kika [Natualization] < Naturalized in Japan >
Goomanizumu taironshō
[Gomanism discussion (argument) collection]
Tokyo: Asuka Shinsha, 16 May 2011
333 pages, paper cover, dust jacket

Shin Nihonjin ni kike! is one of several that have come out over the years in Kobayashi Yoshinori's "Gomanism discussion collection" series.

The spine and front of the dust jacket, and the spine of book -- but not the title page, and not the colophon -- show the characters for "kika" or "naturalization" beside the "shin" and "Ni-" of "Shin Nihonjin". The English subtitle "Naturalized in Japan" appears on the dust jacket, in large caps on the front and small caps on the back.

The book features separate discussions or between Kobayashi and each of six discussants who had fairly recently became Japanese by naturalization. All of the discussants have been active, in the pursuit of various careers, as writers on political, social, and economic issues in Japan.

Each discussion runs about 50 pages and covers topics related to the specific background and interests of the discussant. In all the discussion, however, Kobayashi draws out what moved the discussant to want to be Japanese -- given the attitudes not a few people seem to have naturalization, from doubts that naturalizers can ever truly be Japanese, to associations of naturalization with treachery and betrayal. Each discussion includes a number of black-and-white photographs of the discussant and a couple of Kobayashi.

New Japanese

The six "new Japanese" introduced in this volume are introduced by their kanji or katakana names. The kanji names are spaced and their readings are given in hiragana spaced without middots. The katakana names are shown with middots. In the following lists, the romanizations are mine. The forms of the names shown in [brackets] are based on publications or official personal websites. The biographic particulars are gleaned from the profiles at the beginning of each talk.

石 平 せき へい Seki Hei [Seki Hei]
1962 born in PRC
1988 came to Japan
2007 naturalized

呉 善花 お そんふぁ O Sonfa [O Son Fa]
1956 born in ROK
1983 came to Japan
2005 naturalized

鄭 大均 てい たいきん Tei Taikin [Tei Taikin]
1948 born in Japan
2004 naturalized

ペマ・ギャルポ Pema Gyarupo [Pema Gyalpo]
1953 born in Tibet
1965 came to Japan
2005 naturalized

ビル・トッテン Biru Totten [Bill Totten]
1941 born in the United States
1969 came to Japan
2006 naturalized

金 美齢 きん びれい Kin Birei [Kin Birei]
1934 born in Taiwan [then part of Japan]
1959 came to Japan
2009 naturalized

In the back of the book is a collection of short essays the discussants wrote on their experiences and views of the 11 March 2011 "great disaster" in Eastern Japan.


2010 Takarajima mook

Seki Hei, Tei Taikin, and Kin Birei are also featured in the following Takarajima mook, which came out a year before Kobayashi's book.

“外国人参政権”で日本がなくなる日
[別冊宝島 ノンフィクション]
東京:宝島社、2010年3月5日
96ページ (ムック)

"Gaikokujin sanseiken" de Nihon ga naku naru hi
[The day Japan ceases to exist because of "alien suffrage"]
Bessatsu Takarajima Non-fiction
Tokyo: Takarajimasha, 5 March 2010
96 pages (mook)

Kin Birei, the best known contributor to the mook, is highlighted on the cover as advocating that Japan "give nationality and suffrage only to those who wish to be real Japanese" (本当の日本人になりたい人だけに国籍と参政権を与えなさい Hontō no Nihonjin ni naritai hito dake ni kokuseki to sanseiken o atae nasai).


Biographical note

Kobayashi Yoshinori is the creator of a continuing series of provocative manga stories on political and social issues called "Goomanizumu sengen" (ゴーマンイズム宣言), meaning "Declaration of insolence". As the protagonist of the stories, he adopted a direct, boastful, confrontational style he called "Goomanizumu", which reflects the Sino-Japanese term "gōman" (傲慢), meaning extreme pride bordering on arrogance. The manga stories are essentially graphic op-eds.

Kobayashi the graphic op-ed protagonist became Kobayashi the flashy in-your-face showman provocateur in the real world, where he enjoys a minor cult following. In addition to publishing book-length graphic examinations of a number of specific topics, such as the so-called "emperor system", he has put out collections of interviews with other combatants in the world of political and social criticism -- hence the "Gomanism discussion collection" series in which the book reviewed here appears.

I would describe Kobayashi's opinions as generally "critical conservative" or even "radical conservative". By this I mean that he is not so much "pro-conservative" or "anti-liberal" as he is "anti-nonsense" -- though one might disagree with what he regards as "common sense".

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Michael LeMay and Elliott Robert Barkan (editors)
1999

U.S. Immigration and Naturalization Laws and Issues
(A Documentary History)
[Primary Documents in American History and Contemporary Issues]
Westport (CT): Greenwood Press, 1999
xlvi, 336 pages, hardcover

This book contains 150 documents related to the subjects of its title. The documents, which span nearly three centuries, from DOCUMENT 1: Province Laws -- Massachusetts (March 12, 1700) to DOCUMENT 150: "Legal Immigrants Would Regain Aid in Clinton Plan" (January 25, 1999). Practically all of the documents are texts of laws. Most are prefaced with a short paragraph.

The front matter includes an 11-page Introducdtion of the history of immigration and naturalization law in the United States and a 9-page chronology of Significant Dates in Immigration and Naturalization Law. The back matter includes a 5-page Glossary -- which is seriously flawed.

Glossary and Index flawed

This book is undoubtedly the most useful single-volume source for students of the history of naturalization law in the United States. It's lack of international perspective may be an artifact of its focus on US domestic law. But the shortcomings of its Glossary and Index reflect domestic oversights.

"naturalization"

The Glossary, for example, defines naturalization as "The conferring, by any means, of citizenship upon a person after birth" (page 315). While this definition might work within the framework of US domestic law, it does not apply to the domestic laws of countries like Japan.

Japan confers its nationality to all those who qualify, only after birth, under two circumstances: (1) by notification, acceptance of which results in acquisition of nationality through operation of the law, or (2) by petition, approval of which results in acquisition of nationality by permission of competent authorities. Only the later is termed "naturalization" in Japanese domestic law.

Entirely missing from the Glossary are keywords like nation, nationality, and national, and even citizenship and citizen. These omissions underscore the major limitation of the definition given for naturalization. US law defines both nationals and citizens, whereas international law recognizes only nationality" as an attribute of affiliation with a state's national entity.

"passport"

The definition of passport as "A legal identification document issued by a sovereign nation-state attesting to the nationality of an individual for international travel purposes" is accurate to the extent that it recognizes the currency of nationality as opposed to citizenship in international law. However, the term nation-state -- which is not defined -- appears to be a misnomer for either state or nation, which are never both.

International law recognizes a "state" as an entity which confers its nationality on members of its singular nation or several nations. Some states include semi-sovereign subnations which, though they are not states, may issue their own passports: Hong Kong in the People's Republic of China, for example. Some Indian nations in the United States issue passports which attest to the tribal nationality of their members.

Hong Kong passports are internationally recognized as documents which reflect Hong Kong's status as a Special Administrative Region (SAR) within PRC.

"national origin" and "race"

National origin, despite its importance in US immigration and naturalization law, appears in the Index but not in the Glossary.

Race, which conflates with national origin in US usage, and is directly or indirectly so central to the story narrated by the documents included in this book, appears in neither the Glossary nor the Index.

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Gilmar G. Udell (compiler) [Superintendent, Document Room, House of Representatives]
1972

Naturalization Laws
Washington [D.C.]: Government Printing Office, 1972
ix, 431 pages, softcover

This is the bible of US nationality law for the period 1918 to 1972. It contains hundreds of acts from Public No. 144, 65th Congress, approved May 9, 1918 -- to Public No. 584, 92nd Congress, approved October 27, 1972.

"Contents" lists included acts in chronological order by law number, congress number, approval date, and title. The titles are generally specific enough to identity the purpose of the act.

Unfortunately, there are no other navigation aides. No subject index. No flow charts showing the progression of related legislation.

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