"Japan" and "Japanese"

The legal alienation of territories and inhabitants

By William Wetherall

First posted 1 January 2007
Last updated 6 February 2016


Postwar settlementsOccupation legalities, control and jurisdiction, sovereignty, repatriation, registration, and separation
SCAP and other directives to the Japanese governmentHow JCS and SCAP redefined nations and nationality
1945-11-3 JCS 1380/15 Japan, Formosan-Chinese, and Koreans | 1945-11-1 SCAPIN-224 Repatriation of Non-Japanese from Japan | 1946-1-29 SCAPIN-677 Governmental and Administrative Separation of Certain Outlying Areas from Japan | 1946-2-17 SCAPIN-746 Registration of Koreans, Chinese, Ryukyuans and Formosans | 1946-2-19 SCAPIN-756 Exercise of Criminal Jurisdiction | 1946-2-19 SCAPIN-757 Sentences imposed on Koreans and certain other nationals | 1946-3-16 SCAPIN-822 Repatriation | 1946-4-2 SCAPIN-852 Entry and Registration in Japan | 1946-11-20 SCAP statement on "Koreans in Japan" | 1947-2-25 SCAPIN-1543 Registration of Chinese Nationals
"Dual nationality" during OccupationThe naichi-gaichi divide before, during, and after the Occupation of Japan
1949 Cabinet Order No. 51 As drafted early in 1949 | As promulgated on 15 March 1949 | As revised from 28 April 1952
Legal status of SCAP's "non-Japanese"Koshikawa's 1949 study of gaichijin under Japan's Common Law
Effects of 1952 Peace TreatySeparation of gaichi from Japan meant separation of gaichijin from its nationality


Postwar settlements

The end of World War II in Asia and the Pacific reduced the Empire of Japan to what was left after its leaders unconditionally surrendered under the terms of the Potsdam Declaration. In accepting these terms, they also recognized that the United States would be squatting on prefectural territories like Okinawa.

Occupation legalities

Wars are brutal to those they effect. Survivors of wars remember them for the suffering they caused in terms of destroyed lives and properties. Yet wars are begun, fought, and ended through government acts that involve legal and other administrative procedures. Postwar occupations and reconstructions are also carried out by all manner of orders, directives, edicts, laws, ordinances, and regulations.

In this section, I will introduce and comment on a number of legal instruments that illuminate Japan's postwar settlements with what became, and remain over half a century later, a divided China, a divided Korea, a Soviet Union that is now again Russia -- and a prefecture called Okinawa, which continues to bear the stomping of American boots. In particular I will focus on Taiwan, Chōsen, Karafuto and Chishima, and the Ryukyus, and on the status of the people affiliated with these entities.

Control, jurisdiction, and sovereignty

Japan's effective sovereignty over Taiwan, Karafuto, and Chōsen ended when Japan surrendered to the Allied Powers in 1945. The subnation of Taiwan was surrendered to the Republic of China (ROC) and remains the major part of the remnants of that state. Karafuto, which had become a prefecture, and the Chishima islands, which had been part of Hokkaido, were invaded, captured, and occupied by the Soviet Union and remains part of Russia. The subnation of Chōsen was surrendered by halves to the United States and the Soviet Union, which oversaw the establishment of the Republic of Korea (ROK) in the south and the Democratic People's Republic of Korea (DPRK) in the north.

While Taiwan, Karafuto and Chishima, and Chōsen were parts of Japan, people with principal registers in these territories were Japanese by nationality. When Japan abandoned its rights to these territories provisionally in 1945 it lost de jure control and jurisdiction and de facto sovereignty. It lost de jure sovereignty when it confirmed its abandonment of these territories in 1952.

Repatriation and status

In occupying the Empire of Japan, the Allied Powers faced enormous logistic problems. One of the most challenging, in terms of coordination throughout East Asia and the Pacific, was the repatriation of millions of people to and away from "Japan" as redefined by the Supreme Commander for the Allied Powers (SCAP).

"Japanese nationals in Conquered Territory" were to be repatriated back to Japan. All manner of non-Japanese in Japan when the war ended -- from Americans, British, and Chinese to Germans and Italians -- were to be repatriated back to their "homelands".

SCAP's definition of "non-Japanese nationals" for repatriation purposes included also people it viewed as "liberated peoples" -- name "Koreans" (Chosenese) and "Formosans" (Taiwanese) -- while recognizing that legally they were Japanese nationals until otherwise decided by appropriate treaties.

But people who had been domiciled in the Ryukyus (which SCAP defined as Okinawa prefecture, plus a couple of island groups affiliated with Kagoshima prefecture) were also declared "non-Japanese" for purposes of repatriation.

SCAP's repatriation directives commonly spoke of "Koreans, Chinese, Ryukyuans and Formosans" (SCAPIN-746) -- or "Chinese, Formosans, Koreans and Ryukyuans" (SCAPIN-822) -- but also of "Korean, Chinese, or Formosan nationals, or Ryukyuans" (SCAPIN-822) -- thought among these, only "Chinese" were actually aliens under Japanese law.

Alien registration

After the repatriation program ended, Taiwanese and Chosenese who had remained in Occupied Japan -- but not Ryukyuans -- were alienated for the purpose of alien registration, though they continued to be recognized as Japanese nationals. When the occupation ended, from the day the San Francisco Peace Treaty came into effect, Taiwanese and Chosenese were fully alienated by separated from Japanese nationality.

All this may seem "contradictory" or "paradoxical" if one assumes that Taiwanese and Chosenese could not possibly have been Japanese under Japan's statute or customary laws -- if in fact they were also "non-Japanese" and "aliens". Not only was such dual status possible, but it was entirely legal. And it had precedents in other countries.

Nationality dispositions

When Taiwan and Chōsen were fully separated from Japan's national territory in 1952, Taiwanese and Chosenese were separated from Japanese nationality, since it was predicated on affiliation with registers reached by Japanese law. Japanese law no longer reached the territories of Karafuto or Chishima, but it reached the registers, as they had been part of the interior. People with Karafuto or Chishima registers therefore retained their Japanese status, though some would have to establish a new register in the locality within Japan where they resided.

Legally, Japan could have made similar provisions for Taiwanese and Chosenese. I.e., provisions could have been made for people residing in Japan, whose registers were in Taiwan or Chōsen, to establish a new register in the prefectural municipality in which they had been residing as "non-Japanese" for purposes of repatriation and "aliens" for purpose of alien registration.

Much has been written, most of it critical, about Japan's decision to denationalize all Taiwanese and Chosenese as of 28 April 1952, when the San Francisco Peace Treaty came into force. Practically all writers on this subject chastise Japan for not allowing those who had settled in Japan to remain Japanese, or at least to regain their Japanese status after provisionally losing it.

Japan, as a sovereign state, was free to do anything it wished regarding the conditions for remaining or becoming its nationals. Domestic and international political conditions gravitated against offering options other than naturalization, under conditions somewhat eased residential status under laws related to Japan's unconditional surrender under the Potsdam Declaration.

Politically, the Allied Powers, in particular SCAP, chose not to impose nationality settlements on Japan in the peace treaty. And ROC in its negotiations of a peace treaty with Japan, and ROK in its negotiations of a normalization treaty and status agreement with Japan, accepted Japanese determination that Taiwanese and Chosenese would lose their Japanese nationality, and that those who wished to again be Japanese would have to naturalize.

Taiwanese and Chosenese

Over two million people affiliated with Taiwan and Chōsen were in the prefectures when the war ended. Tens of thousands of Taiwanese, and hundreds of thousands of Chosenese, had remained in the prefectures rather than return to Taiwan or Korea. Some had been born in the prefectures, the children or grandchildren or migrants.

During the first year or so of Occupation of Japan they were treated as "non-Japanese" for repatriation purpose. From 2 May 1947, Chosenese and most Taiwanese became "aliens" for registration purposes but not for purposes of nationality. Their future legal status was left to a peace treaty that would not be signed until 1951 and would not come into effect until 1952. Its effectuation left them without Japanese nationality, hence categorical aliens. Since then, their legal status in Japan has been effected by a series of changes in laws reflecting treaties and agreements between Japan and concerned states over the years.

Most former Japanese in Japan who became aliens because of the effectuation of the peace treaty in 1952, and their qualified descendants, are Special Permanent Residents, which places them somewhat between Japanese and other aliens in terms of their legal treatment under domestic laws. SPR status is not based on nationality but on residential statuses tied to Japan at time it surrendered. Aliens representing about fifty (50) different nationalities, the vast majority of them nationals of the Republic of Korea, are SPRs. But the SPR population is rapidly shrinking as a result of mortality and naturalization, and the fact that most marry Japanese and their children, who may be dual nationals, are registered as Japanese.

Over the years since 1965, when Japan and ROK signed a normalization treaty and status agreement, practically all Chosenese migrated to ROK (Kankoku) nationality. Some, however, have remained Chosenese, referring to their status as affiliates of Chōsen, a former Japanese entity.

Chosenese are not de jure stateless. They classified as aliens of "Chōsen" nationality in a conflated "Kankoku/Chōsen" category. The problem is not that they have no nationality, but that "Chōsen" has no state -- which means that they are de facto stateless.

Some Chosenese, and at least one ROK national, and even a few Japanese, claim to be nationals of DPRK, but neither Japan nor ROK recognize DPRK's nationality. Japan also tallies the few aliens it has admitted with DPRK documents under the same "Kankoku/Chōsen" status.

At which point Japan recognizes DPRK, Chosenese who migrate to DPRK's nationality will be classified apart from ROK nationals. How will Japan classify Chosenese who remain Chosenese -- nationals of neither ROK nor DPRK? Under ROK or DPRK? Or will they be classified as stateless?

Top  


SCAP and other directives to the Japanese government

By the time Emperor Hirohito surrounded to the Allied Powers on 15 August 1945, Iwojima and Okinawa had already been taken and were occupied by US forces. USSR forces were four days into their invasion of Japan's half of Sakhalin, and three days later they would commence their invasion of the Kurils. By the end of 1945, Japan had also formally surrendered Taiwan and Chosen to the Allied Powers.

The Supreme Commander for the Allied Powers (SCAP) was under the Joint Chiefs of Staff (JCS) in Washington, D.C. JCS issued numerous directives to SCAP concerning SCAP's mission, including his governing of Occupied Japan.

The Japanese Government, in turn, was under SCAP, whose General Headquarters (GHQ) was in Tokyo. SCAP directed the Government of Japan by issuing instructions called SCAPINs and related memoranda.

Most JCS and SCAPIN documents spoke of "Formosa" and "Formosans" and "Korea" and "Koreans", to refer to what Japanese in Japanese were "Taiwan" (台湾 Taiwan) and "Taiwanese" (台湾人 Taiwanjin), and "Chosen" (朝鮮 Chōsen) and "Chosenese" (朝鮮人 Chōsenjin). The Japanese terms are still used today in legacy matters regarding the two territories and their affiliates.

Here I will introduce and comment on the JIS and SCAPIN documents that most clearly show how the Allied Powers laid the legal foundation for the alienation of Chosenese and Taiwanese from Japanese nationality.

Top  


JCS 1380/15 directive on "Japan" and "Japanese"
excluding "Formosan-Chinese" and "Koreans"

3 November 1945

Basic Initial Post Surrender Directive to Supreme Commander
for the Allied Powers for the Occupation and Control of Japan

"Japan" includes the four main islands
and about 1,000 smaller adjacent islands
"Formosan-Chinese" and "Koreans"
are not included in the term "Japanese"

On 3 November 1945, the Joint Chiefs of Staff (JCS) issued the following directive (1380/15) to the Supreme Commander for the Allied Powers (SCAP) concerning the post-surrender military government in "Japan Proper" as it called the prefectures of Japan. This directive defined "Japan" and the status of "Formosan-Chinese" and "Koreans" in what was left of the Empire of Japan.

"Japan Proper"

"Japan Proper" had commonly been used in English to reflect the term "Naichi" in Japanese. "Naichi" -- meaning "Interior territory" or "Interior" -- referred to the prefectural jurisdiction of the Empire of Japan, as distinct exterior (gaichi) jurisdictions like Taiwan and Chōsen, which the Allied Powers were calling "Formosa" and "Korea". In Japanese, however, "Nihon" (Japan) included Formosa and Korea.

"Formosan-Chinese"

This term appears to mean Formosans, here regarded as "Chinese" because the Cairo Declaration listed Formosa as one of the territories it alleged that Japan had "stolen from the Chinese". However, most SCAP directives properly differentiate "Formosa" and "China" and hence "Formosans" and "Chinese".

The following text of the JCS directive table is a reformatted version of the document as posted on the "Birth of the Constitution of Japan" section of the National Diet Library website.

The bold emphasis is mine.

J.C.S. 1380/15
3 November 1945
Pages 134-168, incl
.

JOINT CHIEFS OF STAFF

BASIC DIRECTIVE FOR POST-SURRENDER MILITARY
GOVERNMENT IN JAPAN PROPER

References: a. J.C.S. 1380/5
       b. J.C.S. 1380/8
       c. J.C.S. 1380/12
       d. J.C.S. 1380/14

Note by the Secretaries

The enclosed basic directive for post-surrender military government in Japan proper which has been approved by the State-War-Navy Coordinating Committee and concurred in by the Joint Chiefs of Staff is being forwarded to the Supreme Commander for the Allied Powers with information copies to the Commander in Chief, U.S. Pacific Fleet; Commander in Chief, U.S. Army Forces, Pacific; and the Commanding General, U.S. Forces, China Theater.

A. J. McFARLAND,
C. J. MOORE,
Joint Secretariat.

ENCLOSURE

BASIC INITIAL POST SURRENDER DIRECTIVE TO SUPREME COMMANDER
FOR THE ALLIED POWERS FOR THE OCCUPATION AND CONTROL OF JAPAN

       1. The Purpose and Scope of this Directive

              a. This directive defines the authority which you will possess and the policies which will guide you in the occupation and control of Japan in the initial period after surrender.

              b. Japan, as used in this directive, is defined to include: The four main islands of Japan: Hokkaido (Yezo), Honshu, Kyushu and Shikoku and about 1,000 smaller adjacent islands including the Tsushima Islands.

              c. This directive is divided into Part I: General and Political; Part II: Economic and Civilian Supply; and Part III: Financial.

PART I
GENERAL AND POLITICAL

       4.The Establishment of Military Authority over Japan

              d. You will take appropriate steps in Japan to effect the complete governmental and administrative separation from Japan of (1) all Pacific islands which she has seized or occupied under mandate or otherwise since the beginning of the World War in 1914, (2) Manchuria, Formosa and the Pescadores, (3) Korea, (4) Karafuto, and (5) such other territories as may be specified in future directives.

       8. Prisoners of War, United Nations Nationals, Neutrals, and Other Persons

              c. All civilians who are nationals of the United Nations, resident or interned in Japan will be identified, examined closely, and if you deem it advisable, may be placed in custody or restricted residence. All such nationals who fall within the provisions of paragraph 7 b above shall be arrested and held as suspected war criminals. All other United Nations nationals who have actively participated in any way in the war against one or more of the United Nations will be arrested and held for later disposition. Thereafter, they will be dealt with in accordance with instructions to be furnished you. In general, practical measures will be taken to insure the health and welfare of United Nations nationals.

              d. You will treat Formosan-Chinese and Koreans as liberated peoples in so far as military security permits. They are not included in the term "Japanese" as used in this directive but they have been Japanese subjects and may be treated by you, in case of necessity, as enemy nationals. They may be repatriated, if they so desire, under such regulations as you may establish. However, priority will be given to the repatriation of nationals of the United Nations.

Top  


SCAPIN-224

Repatriation of Non-Japanese from Japan

1 November 1945

Reception Centers and priorities established for
repatriation of Koreans and Chinese, and of persons
formerly domiciled in Formosa and the Ryukyus

Date

Note that this SCAPIN is dated two days before the above-cited JCS directive defining "Japan" and "Japanese".

"non-Japanese nationals"

Note that "Koreans" and "Chinese" are specifically listed as examples of "non-Japanese nationals" and "non-Japanese repatriates".

"homelands"

Does "homelands" refer to "Korea" as the homeland of "Koreans" and "China" as the homeland of "Chinese"? Or does it refer to the place where "Koreans" and "Chinese" in Occupied Japan were "formerly domiciled" and to which they wish to "return"?

Presumably there are also "Koreans" and "Chinese" outside Occupied Japan, who were "formerly domiciled" somewhere in what had become Occupied Japan, who would qualify for "return" to their "homeland" in Occupied Japan.

"formerly domiciled"

The reference to plans for "the return of those individuals formerly domiciled in Formosa, the Ryukyus and South China" is also ambiguous. On the surface, it would seem to mean Koreans and Chinese who used to be domiciled in these places -- i.e., Koreans who would return to Formosa, the Ryukyus, or South China, and similar to Chinese who would return to one of these three places where they used to be domiciled.

The alternative meaning would be people in Occupied Japan whose domicile had been in Formosa, the Ryukyus, or South China at the time they migrated to what has become part of Occupied Japan -- and who, as such, would return to their original domiciles in Formosa, the Ryukyus, or South China -- i.e., Formosans who would return to Formosa, Ryukyuans who would return to the Ryukyus, and Chinese from South China who would return to South China.

The latter interpretation is more consistent SCAPIN-746, dated 17 February 1946, which directed that "Koreans, Chinese, Ryukyuans and Formosans resident in Japan" be registered and "number of each nationality" desiring repatriation be reported (see below).

"reception centers"

Note also that "Reception Centers" as used in this and other SCAPINs related to repatriation was one of the terms used to describe the "Assembly Centers" or "Relocation Centers" set up to process "evacuees" of putative "Japanese descent" on the West Coast in 1942.

"nationality"

Note, moreover, the use of nationality with the implication that at least "Koreans" and "Chinese" constitute a "nationality". According to SCAPIN-746 of 17 February 1946, "Ryukyuans" and "Formosans" also constitute "nationalities" (see below).

From the viewpoint of international law at the time this directive was written, only "Chinese" meaning "national of the Republic of China" would have been recognized as a "nationality". "Korean" would not have been a nationality since there was as yet no Korean state on the peninsula -- much less the two Korean states established in 1948. Nor did Taiwan or the Ryukyus qualify as states for "nationality" purposes.

Why GHQ/SCAP officials should muddle the meaning of "nationality" is not clear. I suspect they were speaking of Koreans, Chinese, Ryukyuans, and Formosans resident in Japan in terms of their presumed "national origin" -- a term familiar especially to Americans, who are apt even today to use the term in reference to someone's putative race or racioethnicity.

GHQ/SCAP used "national origin" in its February 1946 draft constitution, but Japan's lawmakers, correctly understanding its racial implications, deleted the term as alien to Japan's view of nationality as a raceless civil status. GHQ/SCAP It became clear in later GHQ/SCAP directives that "Koreans in Japan" were nationals of Japan and would continue to possess

By the November 1946, GHQ/SCAP's position on the "nationality" of Koreans in Japan was no clearer, judging from what little I have been able to piece together from reported newspaper reports and press statements (see below).

Sources

SCAPIN-224 ran three pages. The following text is an edited and reformatted version of text cut and pasted from bbs.enjoykorea.jp. It has been vetted and corrected against facsimile images of the SCAPIN document posted on the same website.

The text is briefly referred to in Edward W. Wagner, The Korean Minority in Japan, 1904-1950, New York: International Secretariat, Institute of Pacific Relations, 1951 (pages 44-45 and note 4). Wagner 1951 also discusses later SCAPINs related to the repatriation of Koreans.

The red and black bold emphasis in the SCAPIN is mine.

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

1 November 1945

AG 370.5 (1 Nov 45) GC
(SCAPIN-224)

MEMORANDUM FOR : IMPERIAL JAPANESE GOVERNMENT.
THROUGH : Central Liaison Office, Tokyo.
SUBJECT : Repatriation of Non-Japanese from Japan.

1. a. The following plan governing the repatriation of non-Japanese nationals to their respective homelands will be placed in effect without delay.

    b. The entire plan revolves around the use of Reception Centers and the flow of non-Japanese to be repatriated through these Centers in the numbers that can be accommodated by the available shipping.

    c. Memo to the Japanese Government, file AG 370.05 (15 0ct 46)GC dated 15 October 1945, subject: "Reception Centers in Japan for Processing Repatriates" and Memo to the Japanese Government, file AG091 (16 Oct 45)GC, dated 16 October 1945, subject: "Policies Governing Repatriation of Japanese Nationals in Conquered Territory" are included in and become part of this plan.

2. The following Reception Centers will be used to process non-Japanese repatriates leaving Japan:

Senzaki Primarily to process departing Koreans.
Hakata Primarily to process departing Koreans and Chinese formerly domiciled in North China.
Kagoshima Primarily to process departing Chinese formerly domiciled in Central China.
Kure Primarily to process departing Koreans and Chinese formerly domiciled in North Central China. Will be used to lessen the load of Senzaki, Hakata and Kagoshima.

3. The Japanese Ministry of Welfare will:

    a. Make the necessary arrangements with the other Ministries concerned to insure that each of the Reception Centers mentioned in paragraph 2 above is kept filled with outgoing repatriates to the capacities shown in paragraph 3a of Memo to the Japanese Government, file AG 370.5 (15 Oct 45)GC, dated 15 October l945, subject: "Reception Centers in Japan for Processing Repatriates".

    b. Scrutinize carefully the shipping schedules furnished so that Reception Centers do not become congested.

4. The Japanese Ministry of Welfare will be guided by the following in preparing plans for the flow of repatriates to Reception Centers.

    a. Koreans will be cleared from in the following order:

(1) Moji-Shimonoseki-Hakata Area.

(2) Osaka-Kobe Area.

(3) Remainder of Japan.

    b. Within the areas mentioned in paragraph 4a, above, priority for Koreans will be given, in order, to: demobilized soldiers, former forced laborers and other Koreans.

    c. Controls will be established to fix Koreans desiring to return to Korea in their present abodes until they are directed to move under the provisions of this plan.

    d. A special priority will be established for the repatriation of Chinese and Korean coal miners residing in Northern Honshu. They will be evacuated at a rate of 1000 per day beginning not later than 14 November 1945.

    e. Chinese formerly domiciled in North China will be returned to Northern Chinese ports at a rate of not to exceed 10,000 per month. Those domiciled in Central China will be returned to Shanghai at a rate not to exceed 2,000 per month.

    f. Empty spaces on vessels bound for northern Chinese ports will be filled with Koreans who will be offloaded in Korea.

    g. Plans for the return of those individuals formerly domiciled in Formosa, the Ryukyus and South China will be deferred until further notice.

5. The Japanese Government will be furnished shipping schedules governing the movement of:

    a. Japanese merchant and naval vessels in the same manner as at present.

    b. United States Landing Ships, Tank, as they are established, through the same channels. Their schedules will indicate which LST's may be outloaded, with Koreans, Chinese destined for Northern and Central China.

6. The Japanese Ministry of Welfare will furnish all non-Japanese repatriates outloaded on LST's with one day's supply of pre-cocked rice and sufficient dry rice for the voyage plus one day.

7. The Japanese Government, in order to prevent congestion at Reception Centers and unnecessary suffering by repatriates, will adopt among others the following measures:

    a. Inform all concerned of the essential parts of this plan through the media of the press and radio.

    b. Through the same media urge the prospective repatriates to remain in their former places of abode until their movement to Reception Centers can be planned and calling their attention to the sufferings that will result from overcrowding of Centers and the consequent delays in carrying out the program.

8. Japanese Ministry of Welfare will modify their plan, contained in C.L.O. No. 349, subject: "Repatriation of Koreans", dated 23 October 1945 to conform with provisions of this memorandum.

9. A report will be submitted showing the number of repatriates leaving Japan each week. The week will be from Monday through Sunday inclusive and will reach this headquarters not later than the following Wednesday. The following information will be included: name of vessel, time of departure, port of departure, destination, number of passengers by nationality, and total departed to date by nationality.

FOR THE SUPREME COMMANDER:

[Signature]
H. W. ALLEN
Colonel, A.G.D.,
Asst. Adjutant General

Top  


SCAPIN-677

Governmental and Administrative Separation of Certain Outlying Areas from Japan

29 January 1946

"Japan" defined without Taiwan, Karafuto,
Korea, and other "outlying" territories

Second SCAP directive on "Japan"

22 March 1946

"Japan" includes Izu and Nanpo islands

By the beginning of 1946, the Supreme Commander of the Allied Powers, in compliance with the 3 November 1945 Joint Chiefs of Staff directive, had set the boundaries of the territory over which the Empire of Japan would be permitted to exercise a certain degree of sovereignty until otherwise determined by treaty settlements.

Japan -- which would remain an "Empire" until a new constitution could be drafted, approved, and enforced -- was reduced from 48 to 46 prefectures and most but not all of their associated islands. One of the prefectures (Okinawa) came back, the other (Karafuto) didn't. Some of the associated islands (such as the Ogasawaras) came back, others (most significantly the Chishimas) didn't.

Two directives

In January and March 1946, GHQ/SCAP issued two directives concerning the administrative separation of certain outlaying areas from Japan. The directives defined "Japan" for the purpose of administering the territories that had once been part of the Empire of Japan.

The first directive defined what was to be included in "Japan" and what was to be excluded from the Japanese government. The second directive modified the first by including in "Japan" a group of islands it had inadvertently (it seems) excluded.

Sources

The following versions of the directives are my transcriptions from this yearbook, which was "Made in Occupied Japan" (Appendix, pages 20-21).

The Japan Year Book, 1946-48
Tokyo: The Foreign Affairs Association of Japan, 1949
Preface dated December 1948
xv, 614 (main text), 340 (appendix and index), foldout map of Japan, unnumbered adverts

See The Japan Year Book: Forty years of rise, then fall for a look at how the Empire of Japan appeared in half a century of English language yearbooks.

The first directive is posted on a number of websites concerning the postwar status of Takeshima -- an island claimed by both Japan and the Republic of Korea -- possibly the island referred to in the directive as "Take Island". I downloaded one such copy and compared it with the yearbook version.

The blue heading in my presentation was not in the yearbook, which dispenses with such bureaucratic detail. I have corrected obvious scanning errors and somewhat modified the layout to facilitate this presentation.

The second directive was transcribed from the yearbook without the benefit of vetting against another source.

The bold emphasis in both directives is mine.

SCAP directive defining "Japan"

AG 091 (29 Jan 46) GS 29 January 1946
(SCAPIN-677)
MEMORANDUM FOR: IMPERIAL JAPANESE GOVERNMENT.
THROUGH: Central Liaison Office, Tokyo.

SUBJECT:

Governmental and Administrative Separation of Certain Outlying Areas from Japan.

1. The Imperial Japanese Government is directed to cease exercising, or attempting to exercise, governmental or administrative authority over any area outside of Japan, or over any government officials and employees or any other persons within such areas.

2. Except as authorized by this Headquarters, the Imperial Japanese Government will not communicate with government officials and employees or with any other persons outside of Japan for any purpose other than the routine operation of authorized shipping, communications and weather services.

3. For the purpose of this directive, Japan is defined to include the four main islands of Japan (Hokkaido, Honshu, Kyushu and Shikoku) and the approximately 1,000 smaller adjacent islands, including the Tsushima Islands and the Ryukyu (Nansei) Islands north of 30° North Latitude (excluding Kuchinoshima Island); and excluding (a) Utsuryo (Ullung) Island, Liancourt Rocks (Take Island) and Quelpart (Saishu or Cheju) Island, (b) the Ryukyu (Nansei) Islands south of 30° North Latitude (including Kuchinoshima Island), the Izu, Nanpo, Bonin (Ogasawara) and Volcano (Kazan or Iwo) Island Groups, and all other outlying Pacific Islands including the Daito (Ohigashi or Oagari) Island Group, and Parece Vela (Okino-tori), Marcus (Minami-tori) and Ganges (Nakano-tori) Islands, and (c) the Kurile (Chishima) Islands, the Habomai (Hapomaze) Island Group (including Suisho, Yuri, Akiyuri, Shibotsu and Taraku Islands) and Shikotan Island.

4. Further areas specifically excluded from the governmental and administrative jurisdiction of the Imperial Japanese Government are the following: (a) all Pacific Islands seized or occupied under mandate or otherwise by Japan since the beginning of the World War in 1914, (b) Manchuria, Formosa and the Pescadores, (c) Korea, and (d) Karafuto.

5. The definition of Japan contained in this directive shall also apply to all future directives, memoranda and orders from this Headquarters unless otherwise specified therein.

6. Nothing in this directive shall be construed as an indication of Allied policy relating to the ultimate determination of the minor islands referred to in Article 8 of the Potsdam Declaration.

7. The Imperial Japanese Government will prepare and submit to this Headquarters a report of all governmental agencies in Japan the functions of which pertain to areas outside a statement as defined in this directive. Such report will include a statement of the functions, organization and personnel of each of the agencies concerned

8. All records of the agencies referred to in paragraph 7 above will be preserved and kept available for inspection by this Headquarters.

Top  

SCAP directive modifying definition of "Japan"

22 March 1946

Governmental and Administrative Separation of Certain Outlying Area from Japan.

1. Reference is made to the following:

a. Memorandum to the Japanese government AC C91 (29 Jan. 46) GS (SCAPIN 677), subject, "Governmental and Administrative Separation of Certain Outlying Areas from Japan."

b. Memorandum from the Japanese Government C.L.C. No. 918 (1.1) of 26 February 1946, subject, "Request for Information Regarding Status of Izu Islands."

2. Paragraph 3 of reference "a" is hereby amended so that the Izu Islands and the Nanpo Islands north of and including Lot's Wife (Sofu Gan) are included within the area defined as Japan for the purpose of that directive.

3. The Japanese government is hereby directed to resume governmental and administrative jurisdiction over these islands, subject to the authority of the Supreme Commander for the Allied Powers.

4. Nothing in this directive shall be construed as an indication of Allied Policy relating to the ultimate determination of the minor islands referred to in Article 8 of the Potsdam Declaration.

Top  


SCAPIN-746

Registration of Koreans, Chinese, Ryukyuans and Formosans

17 February 1946

Imperial Japanese Government ordered to register
Koreans, Chinese, Ryukyuans, and Formosans in Japan

Having decided what was "Japan" and who were "non-Japanese", SCAP instructed the government of Japan to register all Koreans, Chinese, Ryukyuans, and Formosans who were resident in "Japan" -- ostensibly in order to control their "repatriation" to their "homelands" or "native lands" outside "Japan".

Note the use of nationality with the implication that Korean, Chinese, Formosan, and Ryukyuan were nationalities.

Sources

SCAPIN-746 ran two pages. The following text is an edited and reformatted version of text cut and pasted from bbs.enjoykorea.jp. It has been vetted and corrected against facsimile images of the SCAPIN document posted on the same website.

The text is briefly referred to in Edward W. Wagner, The Korean Minority in Japan, 1904-1950, New York: International Secretariat, Institute of Pacific Relations, 1951 (page 46 and note 14). Wagner 1951 also discusses the application of the 1947 Alien Registration Order to Koreans (pages 66-67).

The red and black bold emphasis in the SCAPIN is mine.

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

APO 500               
17 February 1946

AG 053 (17 Feb 46) GC
(SCAPIN-746)

MEMORANDUM FOR : IMPERIAL JAPANESE GOVERNMENT.
THROUGH : Central Liaison Office, Tokyo.
SUBJECT : Registration of Koreans, Chinese, Ryukyuans and Formosans.

1. The Imperial Japanese Government will register all Koreans, Chinese, Ryukyuans and Formosans resident in Japan by 18 March 1946.

2. Registration will include:

a. Name

b. Age

c. Sex

d. Place of residence in native land.

e. Place of residence in Japan.

f. Occupation.

g. Statement of desire concerning repatriation.

h. In the case of those desirous of repatriation, the destination in repatriate's native land.

3. Those registering as not desirous of repatriation forfeit their privilege of repatriation.

4. Individuals having received notification to register and failing to do so at or prior to the appointed time will be considered as not desiring repatriation and will forfeit their privilege of repatriation.

5. Upon completion of registration the Imperial Japanese Government will report the following information to this headquarters:

    a. The total number of Koreans, Chinese, Ryukyuans and Formosans resident in Japan.

    b. The number of each nationality desiring repatriation.

    c. The total of Koreans desiring repatriation will be sub-totaled to show:

(1) Total of those whose destination is northern Korea (that portion of Korea north of 38 degrees north latitude).
(2) Total of those whose destination is Korea south of 38 degrees north latitude.

    d. The total of Ryukyuans desiring repatriation will show the sub-total for each destination island.

    e. The total of Chinese desiring repatriation will be sub-totaled to show the number destined for North, Central, and South China respectively.

6. Prior to registration and again at the time of registration the Imperial Japanese Government will inform the Koreans, Chinese, Ryukyuans and Formosans that:

    a. They are to be registered for the purpose of determining their desire or non-desire for repatriation.

    b. Failure to register will be grounds for forfeiture of repatriation privileges.

    c. Those registering as desirous of repatriation will be required to undergo repatriation in accordance with instructions issued by the Japanese Government or forfeit their repatriation privileges.

    d. That those registering as desirous of remaining in Japan forfeit their repatriation privileges.

FOR THE SUPREME COMMANDER:

[Signature]
B. M. FITCH,
Brigadier General, AGD,
Adjutant General.

Top  


SCAPIN-756

Exercise of Criminal Jurisdiction

19 February 1946

Directive specifying persons and offenses over which
Japanese courts would have no criminal jurisdiction, and
establishing military occupation courts to deal with them

United Nations Nationals and organizations, including corporations, were thus provided with what amounted to extraterritorial treatment in criminal matters, and Japanese nationals and others who were generally subject to Japanese courts would be subject to military occupation courts in offenses prejudicial to the Occupation Forces or to the objectives of the occupation.

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

APO 500               
19 February 1946

AG 015 (19 Feb 46) LS
(SCAPIN 756)

MEMORANDUM FOR : IMPERIAL JAPANESE GOVERNMENT.
THROUGH : Central Liaison Office, Tokyo.
SUBJECT : Exercise of Criminal Jurisdiction.

1. Japanese courts will henceforth exercise no criminal jurisdiction over United Nations Nationals or organizations, including corporations. All pending criminal proceedings in which Nationals of the United Nations are defendants will be reported to this headquarters; further action by Japanese Courts with respect to such defendants will be stayed; and the defendants will be held subject to directions from authorized representatives of the Supreme Commander for the Allied Powers.

2. Japanese courts will henceforth exercise no criminal jurisdiction over the following offenses:

    a. Acts prejudicial to the security of the Occupation Forces, or any member thereof, or any person attached to or accompanying such forces.

    b. Killing or assaulting any member of the Occupation Forces or any person attached to or accompanying such forces.

    c. Unauthorized possession, taking, receipt or disposal of property of the Occupation Forces or any member thereof, or of any person attached to or accompanying such forces.

    d. Interfering with or hindering the arrest of any person sought, or assisting in or furthering the escape of any person detained, by the Occupation Forces or/by others pursuant to the direction of the Supreme Commander for the Allied Powers or his authorized subordinates.

    e. Interfering with, refusing information required by, making any false or misleading statement orally or in writing to, or defrauding in any manner, any member of the Occupation Forces or any person attached to or accompanying such forces in a matter of official concern.

    f. Acts on behalf or in support of any organization dissolved or declared illegal by the Supreme Commander for the Allied Powers or dissolved or declared illegal at the order of the Supreme Commander for the Allied Powers.

    g. Conspiracies to commit, or acts which aid or abet the commission of, any of the foregoing offenses.

3. Japanese courts will continue to exercise jurisdiction over acts prejudicial to the objectives of the occupation insofar as such acts constitute violations of Japanese law. However, military occupation courts may also assume jurisdiction over such acts or any other acts which are prejudicial to the objectives of the occupation.

4. The Commanding General of the Eighth Army and the Commander, Fifth Fleet, have been directed to appoint military occupation courts including commissions and provost courts with jurisdiction over the foregoing persons and offenses.

5. a. Military commissions are authorized to impose sentences which may include:- fines; imprisonment at hard labor, or both, or specified alternative imprisonment in lieu of payment of fines; expulsion; confiscation, padlocking and forfeiture of estates; and death.

    b. Provost courts are authorized to impose sentences including:- fines not to exceed Seventy-five thousand (\75,00O) Yen; imprisonment at hard labor not to exceed five (5) years, or both, or specified alternative confinement in lieu of payment of fine; expulsion; confiscation and padlocking respecting properties not exceeding Seventy-five thousand (\75,000) Yen in value.

6. The Imperial Japanese Government shall have no authority to arrest United Nations Nationals, except (a) in areas where Allied troops are not actually present on duty and there is a reasonable evidence suspicion that a serious crime has been committed by a United Nations National, or (b) when otherwise directed by the Supreme Commander for the Allied Powers or his authorized subordinates: provided that, when such persons are taken into custody, the apprehending authority will immediately report the incident to the nearest Allied Military Authority and deliver such persons upon instructions from such Authority.

7. The Japanese people and all other persons in Japan will be informed of this directive.

FOR THE SUPREME COMMANDER:

[Signature]
B. M. FITCH,
Brigadier General, AGD,
Adjutant General.

Top  


SCAPIN-757

Review of Sentences Imposed Upon Koreans and Certain Other Nationals

19 February

Directive limiting authority of Japanese courts in cases involving
Koreans and other nationals of countries formerly under Japanese rule
if such persons can prove their intention to return to their homelands

This SCAPIN qualifies SCAPIN 756 concerning "Exercise of Criminal Jurisdiction".

Koreans in Occupied Japan, and Taiwanese who had not migrated to Republic of China nationality, were Japanese nationals. They and other aliens who were not categorically "United Nations Nationals" -- meaning nationals of countries which had declared war on Japan, otherwise known as the Allied Powers -- were subject to the jurisdiction of Japanese courts. However, those who were presently a defendant in a Japanese court, might be allowed to repatriate, depending on the offense and their ability to prove their intention to repatriate.

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

APO 500               
19 February 1946

AG 015 (19 Feb 46) LS
(SCAPIN 757)

MEMORANDUM FOR : IMPERIAL JAPANESE GOVERNMENT.
THROUGH : Central Liaison Office, Tokyo.
SUBJECT : Review of Sentences Imposed Upon Koreans and Certain Other Nationals.

1. Reference is made to memorandum for Imperial Japanese Government AG 015 (19 Feb 46) LS, subject "Exercise of Criminal Jurisdiction".

2. Sentences imposed by Japanese Criminal Courts on Koreans and other nationals of countries formerly under the domination of Japan, who furnish adequate proof of their intention to return to their homelands, shall be subject to review and further action by the Supreme Commander for the Allied Powers or his designated representatives. However, such a review will be made and action taken only after remedies in Japanese Courts reasonably available to the defendant have been exhausted and at the request of the person upon whom sentence has been imposed.

3. The action by the Supreme Commander for the Allied Powers or his designated representatives may include staying of execution disapproval, suspension, mitigation, remission in whole or in part, or commutation, but will in no way operate to increase the sentence imposed.

4. The Commanding General, Eighth Army, has been designated as a representative of the Supreme Commander for the Allied Powers for the accomplishment of the review and action specified above.

FOR THE SUPREME COMMANDER:

[Signature]
B. M. FITCH,
Brigadier General, AGD,
Adjutant General.


SCAPIN-822

Repatriation

16 March 1946

Basic directive governing the repatriation of
a. Japanese nationals from areas under Allied military control outside Japan, and
b. Displaced persons in Japan formerly domiciled in China, Formosa, Korea, and the Ryukyus

This SCAPIN contained the following annexes concerning repatriation in all occupation zones.

Annex I - General Policies Governing Repatriation of Japanese Nationals in Formerly Japanese Occupied Territory, and Non-Japanese from Japan.

Annex II - Reception Centers in Japan for Processing Repatriates.

Annex III - Repatriation to and from Japan.

Annex IV - Supply and Transportation.

Annex V - Medical and Sanitary Procedures.

Annex VI - Currency, Securities, and Other Documents and Possessions.

Annex VII - Miscellaneous.

Annex VIII - Rescissions.


"Japanese nationals" and "Displaced persons"

SCAPIN-822, which establishes SCAP's repatriation program in Allied military occupation zones throughout the former Empire of Japan, fumbles its initial characterization of "Japanese nationals" and "Displaced persons". The basic SCAPIN concerns the "repatriation" of the following two classes of persons (bold emphasis mine).

1. This memorandum is the basic directive governing repatriation of:

a. Japanese nationals from areas under the military control of:

Commander-in-Chief, United States Army Forces, Pacific.

Commander-in-Chief, Pacific Ocean Areas.

Generalissimo, Chinese Armies.

Supreme Allied Commander, Southeast Asia Command.

General Officer Commanding, Australian Military Forces.

Commander-in-Chief, Soviet Forces in the Far East (when appropriate agreements have by consummated).

b. Displaced persons in Japan formerly domiciled in China, Formosa, Korea and the Ryukyus.

"Japanese nationals" who are outside Japan (as defined for Occupation purposes) are to be "repatriated" from those areas, presumably to Japan.

"Displaced persons" who are "in Japan" -- and who were "formerly domiciled" in China, Formosa, Korea and the Ryukyus" -- are also to be repatriated, presumably to China, Formosa, Korea, or the Ryukyus.

Neither "Japanese nationals" nor "displaced persons" are defined. Because Annex I defines "non-Japanese as "Chinese, Formosans, Koreans and Ryukyuans" (see below), "displaced persons in Japan" apparently means "non-Japanese" in Japan. But under Japanese law, Formosans, Koreans, and Ryukyuans were Japanese.

As a legal term, "domiciled" means "residing" in a locality as opposed to just passing through or visiting. To say that someone "in Japan" was "formerly domiciled" elsewhere, implies that they used to reside elsewhere and migrated to Japan. Are migrants "displaced"? Are their descendants born "in Japan" displaced?

And are not "Japanese nationals" outside Japan either migrants or the descendants of migrants? Were the migrants, having been formerly domiciled "in Japan", not also "displaced persons"?

One cannot expect a general outline of repatriation to define all the possible variations of individual or family circumstances. However, SCAPIN-822 leaves the impression that people were expected to "repatriate" to their place of ascribed nationality -- "Japanese" outside Japan to Japan, and "non-Japanese" in Japan to their respective "former" domiciles outside Japan.

In actual practice, "Japanese nationals" in many places outside Japan had little or no choice but to "return" to a country they had left long ago or never been. Whereas "non-Japanese" in Occupied Japan were relatively free to choose whether to stay or leave, and many stayed -- not a few because they would have been more "displaced" in the places where SCAPIN-822 assumed they had been "formerly domiciled".


Definition of "non-Japanese"

As shown below, Annex I contains the basic definition of "non-Japanese" for purposes of repatriation (bold emphasis is mine).

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

ANNEX I

Memorandum for the Imperial Japanese Government, file AG 370.05 (16 Mar
46)GC, (SCAPIN-822), dated 16 March 1946, subject: "Repatriation."

General Policies Governing Repatriation of
Japanese Nationals in Formerly Japanese Occupied Territory, and
non-Japanese* from Japan

The following policies will govern repatriation of Japanese nationals in formerly Japanese occupied territory, and non-Japanese from Japan.*

    1. Maximum utilization will be made of Japanese naval and merchant shipping allocated for repatriation of Japanese nationals.

    2. Japanese naval vessels and those Japanese merchant vessels, designed primarily for the transport of personnel and not required for inter-island or coastal passenger service, will be utilized for the repatriation of Japanese nationals.

    3. Personnel to be repatriated will not be transported on cargo vessels to the extent that the essential cargo is displaced. Repatriates will be transported on cargo vessels destined only for authorized repatriation ports (see paragraph 2a, Annex II).

    4. The Japanese Government will operate, man, victual and supply Japanese-manned shipping used for repatriation to the maximum practicable extent. In case of emergency, fuel, food, medical supplies and material repairs may be obtained from U.S.Army or Navy sources, or at foreign ports from foreign government sources, by memorandum receipt signed by the master of the vessel concerned (see Annex IV).

    5. First priority will be granted to the movement of Japanese military and naval personnel, and second priority to the movement of Japanese civilians. Exception may be made by the appropriate Allied area commanders as deemed necessary for areas under their control.

    6. Only personnel being repatriated to and from Japan under the Japanese repatriation program or such others as may be authorized in special cases by the Supreme Commander for the Allied Powers will be transported on repatriation vessels.

1

* The term "non-Japanese" as used in this annex and throughout this memorandum
includes only Chinese, Formosans, Koreans and Ryukyuans
.


7. Non-Japanese nationals who have been repatriated to their homelands will not be permitted to return to Japan until such time as commercial facilities are available, except as authorized by the Supreme Commander for the Allied Powers.

    8. All Japanese personnel will be disarmed prior to return to Japan proper.

    9. The Supreme Commander for the Allied Powers is responsible for making necessary arrangements concerning repatriation with other interested foreign governments.

    11. The Supreme Commander for the Allied Powers retains control over, and will make such arrangements as may be required for, the transportation to and reception in Japan of Japanese nationals evacuated from areas under the control of: the Generalissimo, Chinese Armies; the Supreme Allied Commander, Southeast Asia Command; the General Officer Commanding, Australian Military Forces; and the Commander-in-Chief, Soviet Forces in the Far East (the last when appropriate agreements have been consummated).

2


The language of SCAPIN-822

Of some interest is how SCAP instructions are translated into Japanese -- given the conceptual and linguistic disconnects between the shakiness of SCAP views and English terminology, and the relative precision and clarity of Japanese legal and bureaucratic usage. When and why did SCAP speak of "Chosen" rather than "Korea" in English? What choices did translators make when faced with SCAP references to "homeland" or "Japan proper" or even just "Japan"? And terms like "repatriation" and "return"?

Here I will examine usage in a translation of SCAPIN-822 and its annexes that has been posted on a website called toaniuniu. The website, dedicated to Korea-Japan relations, presents numerous SCAPINs that touch upon the Chōsen hantō (but also Chosenese in Occupied Japan). Its manager -- xiaoke (小可しゃおこー) -- states that materials are from the following publication.

竹前栄治 (監修)
連合国軍最高司令官総司令部 [原編]
GHQ指令総集成
東京:エムティ出版・平凡社、1993-1994
総目次、全15巻

Takemae Eiji (kanshū) [supervision]
Rengōkoku saikō shirei kan, Sōreibu [genpen]
[Supreme Commander for the Allied Powers, General Headquarters (original compilation)]
GHQ shirei sōshūsei
[General compendium of GHQ instructions]
Tokyo: Emuti [MT] Shuppan / Heibonsha, 1993-1994
General Index and 15 volumes

Takemae Eiji is a widely published authority on the Occupation of Japan. Some of his work is represented, not without some serious problems, in Inside GHQ (The Allied Occupation of Japan and its Legacy), New York: Continuum, 2002 -- a translation, and substantial revision and expansion, by Robert Ricketts and Sebastian Swann, of a 1983 Japanese work. I have reviewed parts of this book as Takemae 2002 under Nationality in the Bibliographies section of this website.

Images and English transcriptions

The webpage presents readable images of the SCAP documents, followed by English transcriptions and Japanese translations. I have vetted my representations of the English transcriptions against the images.

Received Japanese translations

I have not seen Takemae's compendium, so cannot vouch for the accuracy of the translations. The website manager states that some obvious errors in the translations have been corrected and gives an example. These matters do not, however, particularly concern me here. I am mainly interested in the received translations as examples of how someone has attempted to make sense of the SCAP documents.

There are a number of inconsistencies in the treatment of English metaphors, and in places the translations are more interpretive than structural. The variations in usage in the received translations suggest the complexities of rendering SCAP's English terms -- which reflect points of view that were intentionally (if not sometimes unintentionally) at odds with Japanese law -- into Japanese terms which are generally used with considerable precision in Japanese laws and bureaucratic materials.

My general impression of the received translations, though, is that they generally done with care. They show evidence that the translators -- most likely multiple hands -- sought to make linguistic distinctions in Japanese that were not necessarily clear on the surface of the English -- aware, for example, of the cline between "Japan" as a legal entity before the Occupation, and "Japan" as redefined by Occupation authorities.

Japanese, non-Japanese

SCAPIN-822 precisely speaks of (1) the "repatriation [to Japan] of Japanese nationals in formerly Japanese occupied territory", and (2) the "[repatriation of] non-Japanese [to their homelands] from Japan". A certain Japanese translation (see note at end of this section) generally renders "Japanese nationals" as "Nihon kokumin" (日本国民) and Japanese as ""Nihonjin" (日本人), while "non-Japanese nationals" and "non-Japanese" are both "hi-Nihonjin" (非日本人).

Chinese, Formosans, Koreans, Ryukyuans

Apart from occasionally different orders of these four categories of "non-Japanese" for purposes of repatriation, the labels for the categories vary in some interesting ways.

"Chinese, Formosans, Koreans and Ryukyuans" is rendered "Chūgokujin, Taiwanjin, Chōsenjin oyobi Ryūkyūjin" (中国人、台湾人、朝鮮人及び琉球人) -- more literally "Chinese, Taiwanese, Chosenese and Ryukyuans".

"Korean, Chinese, or Formosan nationals, or Ryukyuans" is rendered "Chōsenjin, Chūgokujin mata wa Taiwanjin mata wa Ryūkyūjin" (朝鮮人、中国人または台湾人または琉球人).

The translations of both phrases attempt to be structurally faithful to the English phrasing. Metaphorically, though, the second translation is somewhat less faithful -- in that, like the first translation, it uses "persons" (人 jin) rather than "nationals" (国民 kokumin) of Korea, China, and Formosa.

Whereas SCAPIN-746 (see above) spoke of "Koreans, Chinese, Ryukyuans and Formosans" as "nationalities", we Annex VI of SCAPIN-822 has spoken of "Korean, Chinese, or Formosan nationals" -- but "Ryukyuans" rather than "Ryukyuan nationals".

In fact, references to "Korean nationals" and "Chinese nationals" are common in SCAP documents -- while references to "Formosan nationals" are rare -- and I find no examples of references to "Ryukyuan nationals" in SCAPINs. From this scarcity or absence of references to "Formosan nationals" or "Ryukyuan nationals", I would speculate that at least some SCAP officials, while treating "Koreans, Chinese, Ryukyuans and Formosans" as "non-Japanese", (1) understood that neither "Formosa" nor "Ryukyu" qualified as entities for nationality purposes in the sense of state nationality, and (2) anticipated that "Formosans" would become "Chinese" while "Ryukyuans" would eventually resume being "Japanese".

Note in this regard that the 1947 Alien Registration Order, while alienating Chosenese and some Taiwanese (namely, those who had not become Chinese), it did not alienate Ryukyuans, or anyone else affiliated with Japans Interior (Naichi) territory. This was especially significant in the postwar disposition of Japanese nationality, which drew a clear line between Interior and non-Interior (Chōsen and Taiwan) registers.

There are, though rare, occasional references to "Ryukyuan nationals" in United Nations reports and U.S. Civil Administration of the Ryukyu Islands documents, among others publications.

The 1952 Demographic Yearbook (New York: Statistical Office of the United Nations, Department of Economic Affairs, 1953) gives the population of Japan in 1950 as 83,199,637 and qualifies this figure as "Excluding foreigners and some Koreans, Formosans and Ryukyuans".

The same UN publication qualifies the "de jure population" of Japan in 1940 as that of the "Territory of Japan proper, i.e., including the Kurile Islands, the Ryukyu Islands south of 29 N. Latitude and the Bonin Islands" -- but not "Taiwan and Southern Sakhalin (Karafuto) which were [sic] part of Japan proper in the years 1942-1945". No mention is made of Korea, which like Taiwan was never part of "Japan proper" (the Interior). The phrase "Ryukyu Islands south of 29 N. Latitude and the Bonin Islands" is an extreme simplification of a list of territories islands which Article 3 of the 1952 San Francisco Peace Treaty would place under the sole administrative authority of the United States under the United Nations trusteeship system. So-called "de jure" populations are based on honseki register populations. National censuses enumerate "de facto" populations, meaning they count people where they are living as opposed to where they are registered, though honseki addresses are also recorded for cross tally purposes.

Japanese government statistics today qualify the same 1950 figure as that of the "former Interior" (旧内地 kyū Naichi) minus Interior territories to which Japan's administrative authority did not then extend -- including Okinawa prefecture, the Chishima and other islands associated with Hokkaido, the Ogasawara islands associated with Tokyo, and islands associated with Shimane and Kagoshima prefecture. Karafuto has also been excluded. For purposes of comparing present-day and past populations, however, government statistics show the 1950 population inclusive of the territories that have since been returned to Japan as 84,114,574.

Demographers commonly adopt descriptive labels to accommodate particular views of political boundaries. Irene Taeuber for example, in a table called "The population of Japan and the former Empire, 1920-1940", lists "Japan" as a subtotal of "46 prefectures" and "Okinawa", and "Outlying areas" as a subtotal of "Korea, Taiwan, Karafuto, Kwantung, and Nanyo-gunto" (Princeton: Princeton University Press, 1958, Table 16, page 60). The "Total" of course is the population of the de jure Empire of Japan defined by its legal territories. The 73,114,[000] figure she gives for 1940 corresponds to the 73,114,308 given in Japanese government statistics today for what was then the Interior (内地 Naichi) consisting of 47 prefectures including Okinawa. The term "outlying areas" was also used by SCAP to refer to the "exterior" (外地 gaichi) territories of the Empire of Japan.

Taeuber variously refers to "Japan" as "the home islands" (page 59), "the home country" (page 59 ), "Japan itself" (page 59), and "the mother country" of the empire (page 60) -- in reference to the legal entity called the Interior (内地 Naichi) or, when more consciously referring to it as a defunct entity, the "former Interior" (旧内地 kyū Naichi) -- though it still exists in the hindsight of legacy law. She speaks of "Japanese and subject peoples" (page 59), of the "out-movement of Japanese" and the "in-movement of colonials" with reference to "Japan" (page 60). The latter are enumerated as "Non-Japanese in Japan", while the distribution of "Japanese" inside and outside the Japanese Empire is described as one of "the ethnic Japanese" (page 61). The intent of "ethnic Japanese" -- which has no foundation in Japanese nomenclature -- is not explained.

Japan proper

SCAPIN-822 generally speaks of "Japan" but twice refers to "Japan proper". In Annex I "Japan proper" is translated "Nihon" (日本), but in Annex II it is translated "Nihon hondo" (日本本土), meaning "Japan mainland". "Hondo" (本土) continues to be used today, especially in Okinawa, to refer to the rest of Japan. In SCAP usage, both "Japan" and "Japan proper" refer to Japan as redefined by the Allied Powers.

The Japanese translation of "Japan" in many parts of Annex VI uses "Naichi" (内地) or "Interior" or "Nihon Naichi" (日本内地). For example, the phrase "Japan, Korea, Formosa, Kwantung Province, and north China" is rendered "Naichi, Chōsen, Taiwan, Kantōshū oyobi Kahoku" (内地、朝鮮、台湾、関東州及び華北). And "Japan" in several reference to savings books, insurance policies, checks, certificates of deposits, and other such documents issued by institutions "in Japan" is rendered "Nihon Naichi" (日本内地).

My impression is that the translators have used "Naichi" and "Nihon Naichi" in order to clarify that by "Japan" SCAP must have been thinking of (1) the formal prefectural entity (legal jurisdiction) of the Empire of Japan called "Naichi" (内地) or "Interior" -- as opposed to (2) "Japan" as downsized by the Allied Powers for purposes of the Occupation.

Legally, the distinction between pre-Occupation "Japan" as a sovereign state, and "Japan" as an occupied state under the sovereignty of SCAP, is very important. Sovereign "Japan" at the time the war ended included the Interior, Taiwan, and Chōen, hence the Japanese nationality not only of Interiorites but also of Taiwanese and Chosenese. Whereas "Japan" under SCAP was essentially the Interior (so-called "Japan proper") minus Karafuto, the northern and southern Chishima islands, the Nansei islands (the Ryukyus, including Okinawa, and other islands), and the Ogasawaras among other islands.

For a look at the formal and informal meanings of "naichi" in Chinese and Japanese, see Linguistic notes on "Interior" in "The Interior: The legal cornerstone of the Empire of Japan".

homeland

The received translation renders "homeland" as "hongoku" (本国), and SCAPIN-822 uses these terms mainly in reference to SCAP has defined as "non-Japanese" for repatriation purposes.

As legal terms, "hongoku" and "home country" refer to one's country of nationality. They are standard term in laws of laws that determine applicable law -- as in the expression "home country law" or "law of one's home country" (本国法 hongokuhō).

Metaphorically, "hongoku" does not mean "ancestorland" or "fatherland" or "motherland" or "native land" -- but refers only to the country that is regarded as one's principal affiliation for nationality purposes -- as opposed to "domicile", which is where one legally resides.

The term "honseki" (本籍) in Japanese law means "principle register" in reference to the address of the local polity with which one is primarily affiliated as a matter of household or family registration (本籍地 honsekichi). Japanese nationality is territorially associated with family registers of polities within Japan's sovereign dominion. The "honseki" of aliens, who do not have honseki registers in Japan, is taken to be their country of nationality.

repatriation, return

"Repatriation" and related terms use the metaphor "hikiage" (引揚) meaning "withdraw" or "pullback".

"Return" is typically "kikan" (帰還) or "sōkan" (送還). The former "return" is closer "come back (to)" or "go back (from)" and is most commonly used for Japanese. The latter is nearer "send back (to)" and is used mainly for non-Japanese.

Both "returns" are also used to translate "repatriate" -- with the same intransitive and transitive (hence also passive) distinctions. The latter (transitive) "return" is the root of the expression "kyōsei sōkan" (強制送還) meaning "forcibly send back" -- i.e., "enforced (compulsory) repatriation" or "deportation".

Bank of Chosen

The Allied Powers spoke mainly of "Korea" -- both out of habit, and out of regard for the position taken by Korean liberationists who refused to speak of Chōsen. The formal name of the peninsula as a territory of Japan, however, was "Chosen" -- and the United States used "Chosen" used on numerous official documents, including US immigration cards in "Chosen, Seoul" to Chōsen subjects, whose nationality was "Japanese".

Only a few early Allied documents documents speak of "Korea (Chosen)". SCAPINs generally speak of "Korea" -- except where, unavoidably, formal usage requires "Chosen". Annex VI of SCAPIN-822 -- concerning currency, securities, and other documents and possessions -- refers to the "currency of the Bank of Chosen, the Bank of Taiwan, and the Central Bank of Manchuria" (朝鮮銀行券、台湾銀行券、満洲中央銀行券) -- using the formal English names of the issuing organs.

"Bank of Korea" -- established as a private bank in the Empire of Korea -- was renamed "Bank of Chosen" when Korea was annexed by Japan as Chōsen. The bank continued to be known by this name until dissolved in 1950, when the Republic of Korea established the Bank of Korea as its central bank.

Top  


SCAPIN-852

Entry and Registration of non-Japanese in Japan

2 April 1946

Instructs the Government of Japan to establish procedures for
the legal entry into Japan and the registration in Japan
of non-Japanese other that Occupation Forces personnel

This directive was rescinded by SCAPIN-2137 of 16 January 1951, which was also titled "Entry and Registration of Non-Japanese Nationals in Japan".

Koshikawa introduces the SCAPIN-852 without naming it as such like this (page 7).

A 2 April 1946 [GHQ] "Memorandum concerning the entry into the country and registration of non-Japanese" uses the word non-Japanese with the meaning of outsiders in toto including aliens, stateless persons, and so-called exteriorites.

一九四六年四月二日「非日本人の入国及登録に関する覚書」は、非日本人の語を外国人、無国籍人、所謂外地人を含む外人全体の意味に用いて居る。

As SCAPIN-852, the memorandum is formally titled "Entry and Registration of Non-Japanese Nationals in Japan".

Note that Koshikawa is using "gaijin" (外人) to mean "outsiders" in the sense of "outside the jurisdiction of Occupied Japan" while "gaikokujin" (外国人) is the operational term for "aliens" or "foreigners".

As transcribed in the appendix to Koshikawa's 1949 report, SCAPIN-852 reads as follows (pages 322-324). I have underscored selected words and shown their received translations in (parentheses). Koshikawa does not use the term "SCAPIN" or assign numbers to the memoranda that correspond to SCAPINs. I have not seen a facsimile of SCAPIN-852 and so cannot ascertain the completeness or accuracy of the following text.

Memorandnm [sic = Memorandum] Concerning Entry and Registration [of] Non-Japanese Nationals (非日本人の日本入国と登録に関する覚書 Hi-Nihonjin no Nihon nyōkoku to tōroku ni kan suru oboegaki). 2 April 1946.

1. From time to time non-Japanese nationals (外国人 gaikokujin), not part of the Occupation Forces, will be granted permission to enter Japan (日本へ入国する Nihon e nyōkoku suru). These persons will reside in Japan on a semi-permanent basis. Absence of Japanese consuls abroad and [the] consequent impossibility of obtaining visea [sic =visas], necessitaes [sic =necessitates] the establishment of a procedure for legal entry and residence.

2. It is desired that the Imperial Japanese Government take action [to] implement its part in the following procedure.

a. This headquarters will notify persons approved for entry of such approval, informing them that visa requirements are waived, but that they will report for registration to the Japanese Ministry of Home Affairs upon arrival in Japan.

b. The Imperial Japanese Government will be furnished the names of persons approved as described in the above.

c. When such persons report to the Ministry of Home Affairs the Imperial Japanese Government will register them and furnish them with identification and such documents as are necessary to legalize their residence in Japan.

Top  


SCAP statement on Koreans in Japan

20 November 1946

On 11 November 1946 SCAP reportedly announced that "the nationality of Koreans in Japan shall be determined through their recognition as its nationals by a government which shall be duly established in Korea in the future." On 12 November, the following day, a press release attributed to SCAP stated that "Koreans who refuse to return to their homeland under the SCAP repatriation program will be considered as retaining their Japanese nationality until such time as a duly established Korean government accords them recognition."

An addendum to a memorandum from the Korean Diplomatic Mission in Japan to the Diplomatic Section of GHQ/SCAP, dated circa 10 August 1951, cites the above line from the 11 November 1946 SCAP announcement as support for its claim that Koreans in Japan had already become ROK nationals pursuant to its 1948 Nationality Law (see 10 August 1951 Koreans in Japan ROK nationals for the fully texts.

Writers on Koreans in Japan have widely cited, or cited citations of, the 12 November 1946 press release from an article published early the following year by David Conde in "The Korean Minority in Japan" in Far Eastern Survey (26 February 1947, Volume 16, Number 4, pages 41-45). The first to cite Conde was probably Edward W. Wagner in The Korean Minority in Japan, 1904-1950, first published in 1951 (New York: International Secretariat, Institute of Pacific Relations, 1951, pages 58-59, note 49, which attributes the citation to page 45).

Chang Hyo Sang, writing in "Nationality in Divided Countries: A Korean Perspective" (Chapter 6) in Nationality and International Law in Asian Perspective also refers to the 12 November press release and to a similar statement made a week earlier (Chang 1990: 298, in Ko 1990, both in Bibliography).

On 5 November 1946 the Allied Commander in Japan announced in a press release that (ethnic) [sic] Koreans who refused to return to their homeland under the repatriation programme would be considered to have retained their Japanese nationality until such time as an officially established Korean Government recognized them as Korean nationals. The announcement was virtually repeated in a later press release on 12 December: those Koreans who refused to return to Korea under the repatriation programme should be regarded as having retained the nationality of Japan until the legitimate Korean Government recognized them as being Koreans.

Whenever whatever was announced by SCAP, and whatever was addressed in the press release, on 20 November 1946, a SCAP spokesman issued a statement calling "entirely incorrect" press statements alleging that "this Headquarters recently issued an order that Korean nationals remaining in Japan after 15 December 1946 must obtain Japanese citizenship" -- whatever "obtain Japanese citizenship" could possibly mean -- since (1) Japanese law defined only nationality, not citizenship, and (2) Koreans in Japan still possessed Japanese nationality and were therefore Japanese nationals.

The SCAP press release is worth reading in its entirely, and so I take the liberty of showing it as I have received it.

The bold emphasis is mine.

1946 SCAP statement on Koreans in Japan

Source

The following document has been transcribed from the following source, which also cites Conde 1947.

Soon-Won Lee
Korean-Japanese Discord, 1945-1965
(A Case Study of International Conflict)
Rutgers: The State University, 1967
PhD dissertation, Political Science
Ann Arbor (MI): University Microfilms, 1974

Appendix III, pages 262-263

Source: Ministry of Foreign Affairs, ROK, Hanil Kwanke Chamko Moonsezip (Collection of Documents and References Concerning ROK-Japan Negotiations), Seoul, 1958.

I have not been able to consult the above source. It appears to refer to the following Korean work.

大韓民国外務部
대한민국 외무부
Tae Han Minguk Oemubu
[ Republic of Korea, Ministry of Foreign Affairs ]
韓日関係参考文書集
한일관계참고문서집
Han-Il Kwangye Ch'amgo Munsŏjip
[ Collection of reference documents on ROK-Japan relations ]
서울 Seoul, 1958

玄大松(ひょん でそん)-- Hyon Deson 현대송 Hyŏ Daesong -- cites this text in his 2006 study of territorial nationalism centering on the Dokdo/Takeshima/Dokdo issue between Japan and Korea. See Ryōdo nashonarizumu no tanjō: "Dokdo/Takeshima mondai" no seijigaku (領土ナショナリズムの誕生: 「独島/竹島問題」の政治学) [The birth of territory nationalism: The political science of the "Dokdo/Takeshima problem"], Minerva Shobō ミネルヴァ書房, 2006)., 2006 - 339 ページ. Hyon was born in Pusan in 1961. , is an expert on "territorial nationalism" centuring on territorial issues between Japan and the Republic of Korea. Hyon cites his translation of Syngman Rhee's 18 January 1952 declaration of matters related to the sovereignty in neighboring waters, through determinations of the International Conference (国務会議の議決を経て,隣接海洋に対する主権に関し次のごとく宣言する。

STATEMENT ISSUED BY A SPOKESMAN FOR SCAP
CONCERNING THE STATUS AND TREATMENT
OF KOREANS IN JAPAN

20 November 1946

Recent misconceptions appearing in some sections of the press in regard to the status and treatment of Koreans in Japan require clarification.

From the earliest days of the Occupation it has been the policy of the Occupation Authorities, pursuant to United States, and later, Allied policy decisions, to accord Koreans treatment as liberated people and do everything possible for their welfare. Steps were promptly taken to free from prison those held for political reasons and to liberate those who were virtually slave laborers. A program of repatriation was initiated and to date over 919,000 have been returned to their native land, not including more than 14,000 who illegally re-entered Japan and who have been repatriated a second time. There are now approximately 600,000 Koreans in Japan of which only approximately 75,000 have requested repatriation. The Japanese authorities have been issued strict orders to insure that Koreans are not discriminated against in any way and the Occupation Authorities are at constant pains to see that these directions are given full effect.

Koreans charged by police authorities with commission of crimes have had the additional protection provided by review of their cases by the Occupation Authorities. Persecution has, of course, been instituted against Koreans as well as all other persons who engage in illegal black market or other criminal activities.

Press statements to the effect that this Headquarters recently issued an order that Korean nationals remaining in Japan after 15 December 1946 must obtain Japanese citizenship are entirely incorrect. The Occupation Authorities have no intention of interfering in any way with the fundamental rights of any person of any nationality in regard to retention, relinquishment or choice of citizenship. Under date of 16 October 1946 this Headquarters issued a memorandum to the Japanese Government stating that repatriation of Koreans in Japan, who were formerly residents of Korea south of the 38 North Latitude, would be completed on or before 15 December 1946 except for those who have refused to comply with repatriation plans. Koreans refusing repatriation and electing to remain in this country make their choice with full knowledge that continued residence in Japan subjects them to all appropriate local laws and regulations. Discrimination in favor of Koreans in Japan which would exempt them from the observance of appropriate local laws and regulations would create a form of extraterritoriality. This would be without justification from any point of view and would be contrary to general Allied policy in the light of the action of various Allied Governments in the last few years in relinquishing the vestiges of extraterritorial jurisdiction in other countries.

Conde also cited the above statement in his 1947 Far Eastern Survey report. According to Lee, Conde's article was "based on his personal observations in postwar Japan, where he served as an officer in the Civil Information and Education Section of SCAP" (Lee 1967: 98).

For what it is worth, Lee criticized SCAP for not promoting and facilitating more repatriation (ibid., page 95).

Inasmuch as 98 per cent of the Korean population in Japan had come originally from the provinces of South Korea, had SCAP encouraged repatriation, the problem of the Korean minority would not have assumed the proportions that it did.

However, Koreans who stayed presumably calculated that they were better off in Japan. And not a few of those who did repatriate found reason to sneak back into Japan. Later, when it becomes possible for ROK nationals to come to Japan for study and other purposes, some who had been in the prefectures before the end of the war, when they were Japanese subjects, "returned" to Japan.

Top  


SCAPIN-1543

Registration of Chinese Nationals

25 February 1947

China's mission in Japan will register Taiwanese who claim China's nationality
and those with registration certificates will be presumtively Chinese subjects
and thus United Nations nationals for purposes of exercising criminal jurisdiction.

The following text is transcribed from United States Department of State, Foreign relations of the United States, 1947, The Far East, Japan, Occupation and Control of Japan, pages 183-184, of pages 156-595. I have embedded the text in a standard SCAPIN template.

GENERAL HEADQUARTERS
SUPREME COMMANDER FOR THE ALLIED POWERS

25 February 1947

AG 014.33 (25 Feb 47) LS/L
(SCAPIN 1543)

MEMORANDUM FOR : IMPERIAL JAPANESE GOVERNMENT.
THROUGH : Central Liaison Office, Tokyo.
SUBJECT : Registration of Chinese Nationals.

1. The Chinese Mission in Japan has undertaken the registration and documentation of persons in Japan who claim Chinese nationality and has issued registration certificates similar to the sample copy inclosed herein.

2. Legitimate bearers of these registration certificates will be presumptively considered as Chinese subjects and hence United Nations Nationals for the purpose of the exercise of criminal justice by the Japanese authorities.

FOR THE SUPREME COMMANDER:

[Signature]
John B. Cooly,
Colonel, AGD,
Adjutant General.

Note 38 describes DOS's copy of SCAPIN-1543 as follows (Ibid. page 183, underscoring mine).

Copy [of SCAPIN-1543] transmitted to the [State] Department in despatch 885, February 28, from Tokyo; received March 12. In the despatch, Mr. Bishop [POLAD] stated: "There is every reason to believe that with the completion of the registration of Chinese citizens (including Formosans) in Japan, many of the vexatious problems concerning treatment of Formosans by Japanese police authorities will be obviated." (740.00119 Control (Japan) 2/2847)

Exemption from capital levy

The immediate chronological context of SCAPIN-1543 is a telegram from the acting POLAD (Political Adviser) in Japan, Bishop [Max Waldo Bishop (1908-1994)], also dated 25 February 1947, concerning the exemption of United Nations nationals from the capital levy in Occupied Japan.

Bishop mentions ReDeptel 45, dated 11 February 1947, which "suggested consideration by SCAP of a 100,000 yen exemption from a capital levy only for Koreans intending to remain in Japan" (894.512 2-1147)" (Ibid. Note 35, page 182). The telegram goes on to say this (Ibid. 183).

Neutrals, former belligerents later considered friendly [Austrians, Italians, Siamese], stateless individuals, and liberated persons [Formosans and Koreans] all are presently subject to the capital levy.

It is estimated there are 561,000 Koreans now in Japan who have refused repatriation. Of this number some 20,000, many of whom have sizeable assets, are believed to be subject to the capital levy.

Should Formosans be determined to be Chinese and thus United Nationals nationals, they would automatically be exempt under present FEC [Far East Commission] policy; but this question is understood to be still under inter-governmental discussion and involves many complications, reourtel 492, October 29, 1946 and other correspondence to and from [State] Department regarding Formosans in Japan.

If Department is considering proposing changes in FEC policy re exemption from capital levy or other extraordinary taxes request SCAP be fully advised of Department's views soonest and given opportunity to comment thereof prior to final decision US position and before presentation to FEC.

Top  


"Dual nationality" during Occupation

The effect of SCAP's definition of "non-Japanese" in 1945 and 1946 was to impose a "non-Japanese" nationality on the Japanese nationality of Koreans, Formosans, and Ryukyuans. The "dual nationality" of Chosenese (Koreans) and Taiwanese (Formosans) led to their regard as "aliens" for the purpose of enforcing the 1947 Alien Registration Order. And this "alienation" set the stage for their separation from Japanese nationality in 1952 when, under the terms of the San Francisco Peace Treaty, Chōsen and Taiwan were separated from Japan's national territory.


Nationality under Japanese law

Nationality has always been, in the domestic laws of states, a primary cause for differentiating "nationals" from "aliens" for the purpose of treating them differently. The legal principle of treating nationals differently from aliens, as recognized in international law, did not essentially change in Japan after the war.

Under Japanese law, "Chosen" and "Taiwan" were not nations, but territories, and "Chosenese" and "Taiwanese" were not nationality but territorial statuses. I have called them "subnationalities" in the sense that they were territorial subdivisions of Japanese nationality, but they were not, under international law, nationalities. Chosenese and Taiwanese were Japanese, not aliens.

The territorial principle of Japanese nationality -- i.e., the principle of nationality as an artifact of membership in a household register affiliated with the state -- remains in the 21st century the same as it was in the 19th and 20th centuries. All that changed in 1952, when Chosenese and Taiwanese lost their Japanese nationality, was the definition of Japanese territory.


Nationality under SCAP rules

Territorial changes set in motion in 1945 and finalized in 1952 -- not changes in Japan's definition of its state nationality -- resulted in the separation of Chōsen and Taiwan from Japan, hence the separation of their registrants from Japan's nationality. SCAP's status rules, based on the territorial break-up of the Empire of Japan under the terms of surrender, had the effect of imposing an additional "nationality" on Japanese nationality.

Until the Occupation of Japan, Chosenese and Taiwanese were Japanese. During the Occupation they remained Japanese but also became "non-Japanese" (and "aliens" for certain legal purposes) of "Korean" (Chosenese) and "Formosan" (Taiwanese) nationality. After the Occupation, they lost their Japanese status and became merely aliens, defined as persons who do not possess Japanese nationality.

Since Chōsen and Taiwan had been separated from Japan's control and jurisdiction for purposes of military occupation and government, and would be permanently separated from Japan's sovereignty, Chosenese and Taiwanese were regarded as different nationalities.

Between 1945 and 1952, Chosenese and Taiwanese, and some others who were Japanese in the eyes of Japan's laws, were partly alienated by policies of the Supreme Commander for Allied Forces (SCAP). The definitions of Japanese and alien in Japanese law did not change, but SCAP imposed measures that caused some Japanese to be regarded as "non-Japanese" or treated as "aliens" for the purpose of the Allied Occupation of Japan.

Generally speaking, under the 1947 postwar Constitution and other laws revised or introduced during the Occupation of Japan between 1945 and 1952, aliens residing in Japan after the Occupation have been treated more like nationals than before the Occupation. The before, during, and after distinctions are important because, during the Occupation of Japan, Japan's definitions of "Japanese" and "aliens" were augmented -- not suspended but supplemented -- by conflicting SCAP definitions of "Japanese" and "non-Japanese".

SCAP's status rules constituted a union of Japan's distinction of "Japanese" (J) and "Alien" (A). This union of (J) and (A) created a status of "Japanese-Alien" (JA) -- meaning people who would remain in "Japan" and be treated as "Japanese" (J) until determined by future treaties. In the meanwhile, though, they would also be treated as "aliens" (A) for certain Occupation purposes.


Nested statuses

The concept of treating some people as both nationals and aliens was familiar in the domestic laws of the United States, which also differentiated between nationals and citizens. Neither of these distinctions were familiar in Japan, which had drawn a clear line between nationals and aliens, and did not define citizens apart from nationals.

Yet such distinctions were not incompatible with Japan's domestic status laws. As in most countries, an individual's civil status consist of nested territorial affiliations -- i.e., multiple affiliations centering on local municipal and prefectural status, overlayed by a regional status, in turn overlayed by national status.

During the Occupation, an additional territorial "nest" was simply added to the conventional "nests" of affiliation" -- namely, the "nest" of territories provisionally separated from Japan's sovereign dominion under the terms of surrender signed on 2 September 1952 -- the "nest" of territories that the Allied Powers determined were outside "Japan" in the sense of "Occupied Japan" as a legal jurisdiction. The SCAP-defined nest included Korea and Formosa (Chōsen and Taiwan), which were exterior (gaichi) territories, but also some parts of the Interior (naichi), most notably the Ryukyus (Okinawa).

Japan as redefined by the Allied Powers regained its sovereignty on 28 April 1952, when the San Francisco Peace Treaty came into force. Under provisions of the treaty, Korea and Formosa were formally separated from Japan, but Japan would retain residual sovereignty over the Ryukyus and other Interior territories then under US control and jurisdiction. Consequently, among the Japanese who had been partly alienated as "non-Japanese", only those in registers affiliated with Korea or Formosa would be separated from Japanese nationality concomitant with the territorial separations affected by the treaty. In other words, SCAP's partial alienation ultimately anticipated changes in nationality for the "liberated nationals" -- meaning people affiliated with Japan's exterior (gaichi) territories -- Korea and Formosa -- as opposed to the Interior (naichi).


Legal territories and laws of laws

Procedurally, it was easy for the government of Japan to accommodate SCAP's status rules within the framework of Japan's own status laws. Laws are full of provisos and supplementary regulations that make exceptions to general rules -- and this is precisely what happened during the Occupation of Japan. Occupation laws used provisos and supplementary regulations to exceptionalize the treatment of Japanese that SCAP wished to treat as "non-Japanese" for some purposes.

In the meantime, throughout the Occupation of Japan, Japanese nationality continued to be linked to registers in territories still regarded as parts of Japan for purposes of applying its laws with Occupied Japan. One of the most important laws that continued to operate during the Occupation was the 1918 Common Law, a law of laws that determined applicable law within the legal empire. Another important law was the 1898 Rules of Laws, which determined applicable law between the empire and foreign entities, but also included provisions for the enforcement of laws in "Taiwan, Hokkaidō, and Okinawa prefecture, and [certain] other insular lands [places] [that are part of Japan's sovereign territory]".

Consequently, both during and after the Occupation of Japan, status and applicable law in Japan continued to be determined in accordance with the naichi/gaichi register distinctions made before Japan lost Chōsen and Taiwan (both of which were gaichi) and even parts of the Interior (Naichi). Japanese laws today also continue to reflect the legacy of the prefecturization of Hokkaido and Okinawa, and the nationalization of other islands, during the Meiji period.


"Choice" versus "Recovery and Naturalization"

There were various opinions within SCAP and the Japanese government, which made agreement within each side much less between them difficult. In the end, SCAP accepted Japan's conclusion that Chosenese and Taiwanese would lose their Japanese nationality when Japan lost Chōsen and Taiwan. In other words, the Allied Powers would leave issues of the nationality and status of Chosenese and Taiwanese to negotiations and agreements between Japan and the concerned states -- which turned out to be the Republic of Korea and the Republic of China.

Legally, there were all manner of ways that standing laws could have been amended or new laws enacted to give Chosenese and Taiwanese residing in Occupied Japan a "Choice" of nationality, including the option of retaining their Japanese nationality when the San Francisco Peace Treaty came into effect. Some ways would have involved more administrative difficulties than others, but none would have been legally difficult. Politically -- within the government and legal bureaucracy on the streets of Japan, and even on tables between Japan and ROK and ROC -- the "Recovery and Naturalization" solution, based on the logic of denationalization as a reversal of nationalization, proved to be the simplest and least controversial.

Status rules before, during, and after the Occupation of Japan

Status under Japanese law before, during, and after 1945-1952 Allied Occupation
Japanese nationality as derivative of territorial affiliation did not change

Japanese

persons who possess Japan's nationality

i.e., persons who are members of population registers of polities within Japan's national territory (sovereign dominion)

Aliens

persons who do not possess Japan's nationality

i.e., persons who are not members of Japan's population registers, including persons who have no national affiliation and are thereby stateless

Japan's nationality is predicated on membership in household registers affiliated with its sovereign dominion, which at the end of World War II consisted of three territories -- the Interior (including Karafuto), Chōsen (Korea), and Taiwan (Formosa). Under Japan's domestic laws, these territories were different jurisdictions, but their inhabitants were equally subjects and nationals of Japan.

The Election Law, when revised during the Occupation in December 1945, limited rights of suffrage to residents of Occupied Japan who were subject to the Family Register Law -- an Interior law that did not extend to Chōsen and Taiwan registers. Hence Chosenese and Taiwanese residing in the Interior were no longer eligible for rights of suffrage. Though the law applied to Okinawan registers, Okinawa was not part of Occupied Japan, hence hence elections could not be held there, but Okinawans residing in Occupied Japan were eligible.

Chosenese and Taiwanese in Occupied Japan retained their Japanese nationality and hence were categorically aliens during the Occupation. The 1947 Alien Registration Order, however, exceptionalized them as aliens for the purposes of that law.

Chosenese and Taiwanese were not legally alienated from Japanese nationality until 1952 when, under the terms of the San Francisco Peace Treaty, Korea (Chōsen) and Formosa (Taiwan) were formally separated from Japan's territory.

Japan retained residual sovereignty over Okinawa while it was occupied and administered by the United States. During this period, the Japanese nationality of Okinawans was on hold. They resumed being counted as Japanese after Okinawa was returned to Japan in 1972.

Status under SCAP directives in Occupied Japan
Two nationalities for Koreans, Formosans, and Ryukyuans

Nationality for purposes of Japanese law

nationals of Japan under Japanese law (see above)

Though Koreans (Chosenese), Formosans (Taiwanese), and Ryukyuans (Okinawans and "Nansei islanders") were "non-Japanese" for purposes of repatriation, and though Chosenese and Taiwanese were treated as "aliens" for purposes of alien registration, they continued to be Japanese nationals under Japanese law.

Nationality for purposes of Occupation

liberated nationals

enemy nationals

Joint Chiefs of Staff directive 1380/15 of 3 November 1945 -- "basic directive for post-surrender military government in Japan proper" -- made the following stipulation in a section titled "Prisoners of War, United Nations Nationals, Neutrals, and Other Persons".

You will treat Formosan-Chinese and Koreans as liberated peoples in so far as military security permits. They are not included in the term "Japanese" as used in this directive but they have been Japanese subjects and may be treated by you, in case of necessity, as enemy nationals. They may be repatriated, if they so desire, under such regulations as you may establish. However, priority will be given to the repatriation of nationals of the United Nations.

United Nations, Neutral Nations, and Enemy Nations were defined by SCAPIN-217 of 31 October 1945. SCAPIN-1757 of 4 August 1947 added Special Status Nations and Undetermined Status Nations to the list. The list was somewhat modified by GHQ/SCAP Memorandum of 21 June 1948.

Korea was classified as a Special Status Nation, along with Austria, Italy, and Siam (Thailand). What all four countries had in common was their incorporation into an Enemy Nation (Austria, Korea) or their alliance with an Enemy Nation (Italy and Siam).

Taiwan was not a nation, but as it had been occupied by China and quickly incorporated as a province of China, Taiwanese who became Chinese were regarded as United Nations nationals -- a status not available to Koreans.

"Formosan-Chinese

"Formosan-Chinese" in the JCS directive is a misnomer. SCAP directives more properly speak only of Formosans. Japan formally surrendered Formosa (Taiwan) to the Republic of China on 25 October 1945, a week before the JCS directive. Note, however, that ROC did not decree the provisional restoration of Taiwanese to Chinese nationality until 12 January 1946. Though retroactive to 25 December 1945, Taiwanese outside Taiwan, including those in Occupied Japan, would not be recognized as Chinese until they were formally enrolled in ROC's nationality by an ROC agency.

"Japan proper"

"Japan proper" was the most common Angloesque tag for the prefectural jurisdiction of the Empire of Japan. It reflects the Japanese term "Naichi" (内地), more properly translated "Interior".

"non-Japanese" for purposes of repatriation

"Chinese, Formosans, Koreans and Ryukyuans"

i.e., Chinese domiciled in Occupied Japan, who were aliens under Japanese law; and Formosans, Koreans, and Ryukyuans domiciled in Occupied Japan, who were Japanese nationals under Japanese law, but whose principle registers were outside Occupied Japan -- i.e., in Formosa, Korea, or the Ryukyus.

SCAPIN-224 of 1 November 1945, concerning the Repatriation of Non-Japanese, established priorities for the repatriation of Koreans and Chinese, and of persons formerly domiciled in Formosa and the Ryukyus, who would be leaving Japan for their respective "homelands". "Koreans" and "Chinese" were referred to as "non-Japanese nationals", the expression implicitly embraces also Formosans and Ryukyuans.

SCAPIN-746 of 17 February 1946, concerning the Registration of Koreans, Chinese, Ryukyuans and Formosans, more specifically speaks of "Koreans, Chinese, Ryukyuans and Formosans resident in Japan" as though their "native land" was not "Japan" and their "nationality" was not "Japanese".

SCAPIN-822 of 16 March 1946, concerning Repatriation, specifically defined "non-Japanese" as "Chinese, Formosans, Koreans and Ryukyuans".

"nationality"

"Koreans, Chinese, Ryukyuans and Formosans" are a somewhat mixed bag. While all were "non-Japanese" under SCAP rules, only Chinese were aliens under Japanese law. And though Koreans, Formosans, and Ryukyuans were Japanese, only the Ryukyus were part of Japan's Interior.

Koreans, Formosans, Ryukyuans

Korea, Formosa, and the Ryukyus ["Ryukyu" (Nansei) Islands"] had in common their separation from Occupied Japan -- but a number of other populated Japanese territories were also separated from "Japan" as redefined under the terms of surrender. Demographically, there about two million Koreans in the Interior at the end of the war, and tens of thousands of Formosans and Ryukyuans, and so they represented special logistic problems in terms of also repatriating "Japanese" as defined by the Allied Powers from Korea, Formosa, and the Ryukyus.

Koreans

The two-way traffic was especially busy between "Japan" and "Korea". A number of SCAPINS directed the Japanese government to limit and control the flow of Koreans toward repatriation ports in order to relieve congestion (e.g., SCAPIN-213 of 30 October 1945).

Note in this regard that SCAP left matters regarding Koreans, who were Japanese nationals, mainly to the Japanese government. Employers who sought refunds for railway fares paid on behalf of Korean repatriates would have to settle their claims with the Japanese government (SCAPIN-685, 31 January 1946).

SCAP also directed the Japanese government not to repatriate Korean civilian prisoners in Japan "until they had served their term of imprisonment in Japan and are duly released from confinement" -- but this was not to be taken as an infringement on "the prerogative of the Japanese Government to remit or mitigate such sentences" (SCAPIN-729, (11 February 1946). However, SCAP reserved the right to review the sentences imposed by Japanese criminal courts on "Koreans and other nationals of countries formerly under the domination of Japan, who furnish adequate proof of their intention to return to their homelands" at the request of defendants who had reasonably exhausted remedies in Japanese courts (SCAPIN 757, 19 February 1946).

Chinese

Chinese were probably lumped together with Koreans and Formosans for two reasons. The first reason was political. China was regarded as having been invaded and occupied by Japan, and under Japanese rule at the end of the war -- at least in the eyes of ROC and the nations that had supported the its government in exile. Japan had actually restored its relations with China under the government of Wang Jinwei, and from Japan's point of view the two countries had never been at war. Japan's surrender set in motion in the return of the ROC government to authority in China, within which ROC officers accepted the surrender of Japanese officials in China.

The second reason was demographic. Chinese constituted the largest population of aliens (in the eyes of Japanese law) in the Interior at the end of the war. As United Nations Nationals they had priority in repatriation lines. As United Nations Nationals they were also under the jurisdiction of SCAP rather than Japanese criminal courts (SCAPIN 756, 19 February 1946).

Effects of San Francisco Peace Treaty
People in Chosen and Taiwan registers
but not people in Interior registers
separated from Japanese nationality

Territory

The San Francisco Peace Treaty, signed on 8 September 1951, confirmed that Japan abandoned Korea, Formosa, the Kurile Islands, and the portion of Sakhalin known in Japan as Karafuto, which had been part of Japan's sovereign dominion, and a number of territories that had been part of its larger legal dominion.

I.e., the treaty implied that Korea, Formosa, Karafuto, and the Kuriles would be considered formally separated from Japan's sovereignty effective from the enforcement of the treaty on 28 April 1952.

The treaty did not, however, stipulate successor states, for political reasons that continue to figure in regional disputes today -- a maze which I will not re-enter here (see Territorial settlements for some of the details). The intended successor states were named in the Cairo Declaration and the Yalta Agreement, which were reflected in the terms of surrender. At best one can say that the 1952 treaty, apart from differences in the political views of the states which signed the treaty, considered the territories as possessions of the states which had occupied them or later established control and jurisdiction.

The treaty also confirmed Japan's agreement that Okinawa and a few other islands would be administered by the United States, subject to determinations by the United Nations. This implied that Japan would retain residual sovereignty over these territories. All were eventually returned to Japan, Okinawa finally in 1972.

Nationality

The 1952 peace treaty made no provisions for nationality settlements, implying that nationality matters would be left to Japan and concerned states.

These states turned out to be the Republic of China (ROC) and the Republic of Korea (ROK), neither of which was party to the treaty, again for reasons I will not go into here. And neither of these states, though for different reasons, objected to Japan's determination that Taiwanese and Chosenese would lose its nationality when its abandonment of Taiwan and Chōsen came into effect. These understandings between Japan and ROC and Japan and ROK were on their respective negotiation tables from the beginning.

Shortly after it signed the San Francisco treaty, Japan began to negotiate a peace treaty with ROC and a normalization treaty and status agreement with ROK. By then, Japan had determined that, as a consequence of the separation of Taiwan and Chōsen from it's national territory, Taiwanese and Chosenese would be separated from its nationality -- meaning they would "recover" the nationality associated with these territories and have to naturalize if they wished, again, to be Japanese.

Japan and ROC

On the day the San Francisco treaty came into effect, Japan and ROC signed a peace treaty in which Japan recognized that ROC laws would govern the nationality of Taiwanese in Japan. ROC, as the successor to the Chinese state which had ceded Taiwan to Japan in 1895, had recognized the legal efficacy of cession.

Moreover, shortly after it occupied Taiwan in late 1945, it restored Taiwanese to its Chinese nationality effective from shortly after the start of its occupation of Taiwan. And because ROC was an Allied Power, its agents in Occupied Japan had been permitted to enroll into its nationality Taiwanese domiciled in Occupied Japan.

Japan and ROK

ROK refused to recognize the annexation Korea in 1910. Since in its view Korea had never legally become the Japanese territory of Chōsen, Koreans had ever become Chosenese, much less Japanese. As a sovereign state, ROK regarded nationality as a matter of domestic law, hence not an matter for discussion between the two states. Japan could do what it pleased.

ROK insisted that Japan should regard all Koreans in Japan as its nationals -- though many seemed to support the Democratic People's Republic of Korea (DPRK), with which ROK was then at war. Japan, however, held that Chosenese in Japan would have to decide whether they wished to be ROK nationals, at which time Japan-ROK exchanged diplomatic missions and ROK could enroll individuals in its nationality.

Within a few weeks of 28 April 1952, Japan and ROK had basically agreed over issues involving the status of Chosenese who became ROK nationals. The two states balked over other issues, though, and were unable sign a normalization treaty and status agreement until 1965.

For more about ROK-Japan talks between 1951 and 1965, and the denationalization of Chosenese and Taiwanese in 1952, see Japanese nationality after World War II.

For more about the separation of Chosenese and Taiwanese from Japanese nationality, alien status laws directly tied to the effects of the San Francisco Peace Treaty, and the 1965 normalization treaty and status agreement between Japan and ROK, see Nationality after World War IINationality after World War II, Separation and choice, and Alien registration and immigration.

Top  


1949 Cabinet Order No. 51

The manner in which this order was originally drafted -- and then rewritten to comply with SCAP guidance -- reflects how Japanese law differentiated people regarded as possessing Japanese nationality according to the territory with which their family registers were legally affiliated.

The first draft of this order is interesting in that, while inspired by the manner of exceptionalization of Chosenese and some Taiwanese in the 1947 Alien Registration order, it used the means of exceptionalization found deployed in the revisions to the election law made in December 1945, which had adopted the same means of specifying who is to be included or excluded from the applicability of Interior laws before Japan's surrender -- namely, the territoriality of household registers.

Top  


Early 1949 draft of Cabinet Order 51

Definitions of aliens and Japanese

The loss of control and jurisdiction, and the later loss of sovereignty, resulted in Japanese with registers in areas which Japan did not control or have jurisdiction being regarded as neither fully Japanese nor fully aliens. It was recognized that they were nationals of Japan, but because their Japanese nationality was tied to territories no longer under Japan's control or jurisdiction, they were treated as quasi aliens for purposes of resident (alien) registration and immigration (exit and entry procedures).

I am indebted to Simon Nantais, who shared with me copies of some of the GHQ/SCAP documents he collected concerning Cabinet Order 51, including the following background information (based on his correspondence, 3 August 2008).

Cabinet Order 51 was submitted to the FIB (Foreign Investment Board) on 10 February 1949. The FIB held a meeting on 14 February and the minutes state that:

The following objections to the proposed JG Cabinet Order . . . had been raised by Legal Section:

"Art. 25 discriminates against Formosans and Koreans, is contrary to the Japanese Constitution (Art. 14) and the Post-Surrender Policy."

"The Board agreed Art. 25 should be deleted."

[ Reference: ESS(D) 4174, file 43 ]

Top  


1949 Cabinet Order No. 51 as promulgated

15 March 1949

Cabinet Order No. 51 of 1949 (15 March)
Promulgated on and enforced from 15 March 1949

Revised by Law No. 88 of 1952 (12 April)
Revision enforced from 28 April 1952

Abolished by Law No. 65 of 18 December 1979

外国人の財産取得に関する政令

Gaikokujin no zaisan shutoku ni kan suru seirei

Cabinet order concerning property acquisition by aliens

Cabinet Order No. 51 was revised by Law No. 88 of 1952, promulgated on 12 April and effective from 28 April 1952, the day the Peace Treaty came into force.

Below I have transcribed parts of a Japanese and an English version of Cabinet Order 51 as promulgated on and enforced from 15 March 1949, and have transcribe and translated parts of Law No. 88 as promulgated on 12 April 1952 and enforced from 28 April 1952.

1949 Cabinet Order No. 51
Cabinet order concerning property acquisition by aliens
15 March 1949 order reflecting revisions prior to 28 April 1952

Japanese text

I have transcribed part of the Japanese text appended to Koshikawa 1949 (pages 389-398), but using present-day rather than contemporary forms of kanji. See Koshikawa 1949 below for source particulars.

English translations

The received English translation has been transcribed from the following source, except that I have indented the items (subparagraphs) in the paragraphs to facilitate comparison with the received Japanese text and the structural translation and highlighted terms of interest..

The Japan Year Book, 1949-52
Tokyo: The Foreign Affairs Association of Japan, 1952
Foreword dated August 1952
xvii, 778 (main text), 555 (appendix and index), foldout map of Japan, unnumbered adverts

The title and promulgation particulars are followed by the qualification "as amended and currently in force" -- which, at face value, would mean as of the date of publication, circa fall 1952. Articles 2 and 25 clearly include most Taiwanese and Chosenese as "Japanese" for purposes of the order.

The structural translation is mine.

Commentary

The commentary is mine. To facilitate commentary on specific words and phrases, I have highlighted the words and phrases in various bold colors according the following scheme.

Green = correct
Purple = not incorrect
Red = incorrect or unattested

Received Japanese text

Received English version

外国人の財産取得に関する政令

THE CABINET ORDER CONCERNING THE ACQUISITION OF PROPERTIES AND OR RIGHTS BY FOREIGN NATIONALS

昭和二十四年政令第五十一号

Cabinet Order No. 51

Promulgated March 15, 1949

(目的) (Objects)

第一条

この政令は、諸外国との間の健全な経済関係の回復を促進するとともに、国民経済の復興及び自立を図り、あわせて国家資源を保全するため、外国人の投資及び事業活動を調整することを目的とする。

Article 1

The objects of this Cabinet Order (hereinafter referred to as the "Order") are to regulate the business and investment activities of foreign nationals in Japan, in order not only to stimulate the restoration of international economic relationships as between Japan and the rest of the world, but also to promote the rehabilitation of Japan's national economy on a self-supporting basis, and further to conserve the national resources of Japan.

(定義) (Definition)

第二条

この政令において「外国人」とは、左の各号の一に該当するものをいう。

一、戸籍法(昭和二二年法律第二二四号)の規定の適用を受け本籍を有すべき者意外の者。但し昭和二0年九月二日に日本の国籍を有し、且つ、同日以後引き続きこの政令の施行地域居住する者は、除外する。もつとも、その者が同日以後外国の国籍を取得し、又は連合国最高指令官の任命し、若しくは承認した使節団が発行する登録証明書の交付を受けたときは、除外しない。

二、日本の国籍と日本以外の国の国籍とを有する者。但し、昭和二0年九月二日以後引き続き日本に住所を有する者、同日以後外国から引き揚げた者及び連合国最高指令官から永住の目的をもつて入国を許可された者を除く。

三 [ 省略 ]

四 [ 省略 ]

五 [ 省略 ]

2、 [ 省略 ]

3、この政令において「日本人」とは左の各号の一に該当するものをいう。

一、第一項第一号又は第二号に該当する者以外の人

二 [ 省略 ]

Article 2

A "Foreign National" for the purpose of this Order is difined [sic] as any person who comes under any one of the subparagraphs as stipulated hereunder.

(1) Any person other than those to whom the Law for Census Registration (Law No. 224 of 1947) is applicable and who are required to have a permanent domicile registered under the provisions thereof, except those who had Japanese nationality as of 2 September, 1945, and since then have been in continuous residence within the territory coming under the enforcement of this Order, but such exception is nullified in the case where such a person excepted has since obtained or obtains any foreign nationality or has since taken or takes delivery from any foreign mission which has been duly appointed or approved by the Supreme Commander for the Allied Powers and designated by the Foreign Investment Commission of a registration certificate which has been or is issued by such mission.

(2) Any person who has any nationality in addition to Japanese nationality except any person who has been in continuous residence, with a fixed address, in Japan, since September 2, 1945, any person who has been repatriated or who has been repatriated [sic] or who has been permitted by the Supreme Commander for the Allied Powers to enter with the object of becoming a permanent resident in Japan since September 2, 1945.

(3) Any juridical person established under foreign law, or any juridical person with its head or main office outside Japan or any other similar organization except those designated by the Foreign Investment Commission (hereinafter referred to as the "Commission").

(4) Any juridical person or organization, the stocks or shares of which are wholly owned, directly or indirectly, by a person as specified in any one of the subparagraphs (1) through (3) above.

(5) Any juridical person or organization, the management of which is virtually controlled by a person or persons as specified in any one of the subparagraphs (1) through (3) above.

2. Whether or not a juridical person or organization comes under a juridical person or organization stipulated in paragraph 1, subparagraph (4) or (5) above shall be determined by the Commission.

3. A "Japanese national" for the purpose of this order is defined as any person who comes under any one of the subparagraphs as stipulated hereunder:-

(1) Any person other than those specified in the subparagraph (1) or (2) in paragraph 1 above.

(2) Any juridical person or organization other than those specified in any one of the subparagraphs (3) through (5) of paragraph 1 above.

Structural translation

Article 2

In this cabinet order "alien" refers to a person who falls under of the items to the left [below].

(1) A person other than one who is subject to application of the provisions of the Family Register Law (Law No. 224 of 1947) and should possess a principal register. Provided, a person who possessed the nationality of Japan on 2 September 1945, and, since the same day has continuously possessed a residence in the enforcement territory of this cabinet order, will be excluded. However, when the person has since the same day acquired the nationality of another country, or has received a [nationality] registration certificate issued by a mission appointed or recognized by the Supreme Commander for the Allied Forces, [the person] will not be excluded.

(2) A person who possess the nationality of Japan and a nationality other than of Japan. Provided, [this will] except persons who have since 2 September 1945 continuously possessed a domicile in Japan, persons who since the same day withdrew [repatriated] from a foreign country [to Japan] Japan, and persons who have been permitted by the Supreme Commander for the Allied Forces to enter the country with the purpose of permanent residence.

(3) [ Omitted ]

(4) [ Omitted ]

(5) [ Omitted ]

2. [ Omitted ]

3. In this cabinet order "Japanese" refers to a person who falls under of the items to the left [below].

(1) A person other than one who falls under item 1 or item 2 of paragraph 1.

(2) [ Omitted ]


Definitions of "alien" and "Japanese"

The Japanese version is more lucid and, as a legal prose, more elegant than the structural translation, with its awkward construction marks. Article 2 defines alien, and in effect also Japanese, natural and juridical (legal, corporate) persons. Japanese are simply those who are not defined as aliens.

The Japanese version is crystal clear if one recognizes them as a set of clauses and provisos which function a set of filters applied to all natural persons. Aliens are defined as people who are left after filtering out Japanese nationals (Item 1) and filtering in Japanese dual nationals who are not domiciled in Japan (Item 2).

Item 1 has an exclusionary clause (1m), and an exclusionary proviso (1p) with an exclusionary proviso (1pp). Item 2 has an inclusionary clause (2c) with an exclusionary proviso (2p). Alien natural persons are defined as the summation of the effects of these two items, namely:

Aliens = 1 + 2
       = (1c - (1p - 1pp)) + (2c - 2p)
       = 1c - 1p + 1pp + 2c - 2p

Decoded, this means:

Aliens = All natural persons
       - those in Japan's present Interior family registers
       - those in Japan's former exterior family registers
          if they had Japanese nationality on day of surrender
          and if they have resided in Japan since day of surrender
          and if they have not acquired another nationality
           or received a recognized certificate of nationality  
       + those who have Japanese and another nationality
       - dual nationals who have
           had a domicile in Japan since day of surrender
           or repatriated to Japan after day of surrender
           or been allowed to enter Japan for permanent residence

The main clauses and provisos function as filters.

1c -- Main clause of Item 1
This clause excludes from the population of all natural persons all Japanese nationals whose Japanese nationality is based on membership in family registers within Japan's jurisdiction -- meaning the jurisdiction of Occupied Japan, which the Allied Powers defined as the prefectural Interior of the Empire of Japan, minus two prefectures and a few islands associated with other prefectures.

1p -- Proviso to main clause of Item 1
This proviso excludes from the remaining population of natural persons all Japanese nationals whose nationality continues to be based on membership in registers in former exterior territories of Japan -- namely Taiwan and Chōsen, which had been part of Japan's sovereign dominion, but were separated from Japan's jurisdiction -- if such persons were nationals on the day Japan surrendered, and if they have been domiciled within Japan's present jurisdiction since that day.

1pp -- Proviso to proviso to main clause of Item 1
This proviso excludes from the population excluded by the first proviso -- and thereby alienates -- persons in former exterior registers who may have possessed Japanese nationality on the day of surrender, and have since continuously resided in Japan, but have since acquired another nationality, or received a certificate of nationality from a state recognized by SCAP acting as Japan's proxy in foreign affairs.

2c -- Main clause of Item 2
This clause alienates Japanese nationals who also have another nationality.

2p -- Proviso to main clause of Item 2
This proviso excludes from alienation Japanese nationals who have another nationality, if they have been domiciled in Japan since the day of surrender, or been repatriated since then, or been permitted since then to enter Japan in order to permanently reside in Japan.


Alienated Japanese

The effects of the above clauses and provisos are to draw a line between "aliens" and "Japanese" for the purpose of the order. In doing so, however, some Japanese are alienated for the purpose of the order.

Alienated Japanese include, most obviously, dual nationals who have not been domiciled in Japan since the day of surrender, or settled in Japan after repatriation to Japan or after entering Japan with permission to settle. It is not that, as Japanese, they would not have had the right to return to or otherwise come to Japan if they were recognized as Japan. The question is whether they did so as Japanese, and whether they did so with the intent of establishing becoming domiciled in Japan rather than in elsewhere.

Less obvious is the alienation of Chosenese and Taiwanese who are not considered to have been continuously resident in Japan since the day of surrender, or who have been continuously resident but acquired the nationality of another state or received from a recognized state a certificate of nationality. Those who had acquired another nationality, or received a certificate of nationality from a recognized state, would naturally be regarded as having abandoned their Japanese nationality. At the time, recognized states included of course the Republic of China (ROC), and most Taiwanese appear to have received certificates of nationality from ROC. The People's Republic of China would not be established until later in 1949, and Japan would not switch its recognition from ROC to PRC until 1972. The Republic of Korea (ROK) and the Democratic People's Republic of Korea (DPRK) were founded the year before, but Japan would not recognize ROK for nationality purposes until 1965, and as of this writing, it has yet to recognize DPRK.

The more difficult problem was the alienation, here, of some Chosenese, and perhaps a few Taiwanese, who had only Japanese nationality, and were considered not to have been continuously resident in what became Occupied Japan on the day of surrender.

Since Japanese in Chōsen and Taiwan registers stood to lose their Japanese nationality on 28 April 1952, the day the San Francisco Peace Treaty came into effect, the definition of aliens all laws which had accommodated the complex status arrangements under occupation rules needed to be revised. Effective from the same day, the items defining alien natural persons in Cabinet Order No. 51 were radically simplified as follows).

(1) A person who does not possess the nationality of Japan

(2) A person who possesses the nationality of Japan and a nationality other than of Japan. Provided, [this will] except a person who possesses a domicile in the place of enforcement of this Cabinet Order.

Of some interest is the fact that the line drawn in Cabinet Order No. 51 as originally promulgated in 1949 -- between non-alienated and alienated Taiwanese and Chosenese -- was essentially the same line that was later drawn between those who lost their nationality on 28 April 1952 but simultaneously qualified for a special status as aliens related to the Potsdam Declaration, and those who lost their nationality and had to acquire a status of residence under the 1951 Immigration Control Order as revised to accommodate the effectuation of the Peace Treaty.

However, the 1952 revision of Cabinet Order No. 51 included an article that empowered the Foreign Investment Commission to designate aliens to whom the provisions of the Cabinet Order would not apply, which essentially meant Potsdam-qualified aliens.

For the partial transcriptions and translations of the law amending Cabinet Order No. 51, and other details related to the vagaries of status during and after the Occupation of Japan, see 1952 revision of 1949 Cabinet Order No. 51 below.


Terminology

Family Register Law (戸籍法 Kosekihō) -- The new Family Register Law, promulgated on 22 December 1947 (Law No. 224), came into force from 1 January 1948. Like the often revised Meiji law which it replaced, it applied only to registers in municipalities in Japan's prefectural Interior. This law has never been a census registration law. Population registers, whether honseki (principal registers) or residence registers, have been used to determine Japan's de jure (registered) population, whereas national censuses are de facto population estimates based on door-to-door counts of people regardless of their registration status.

application (適用 tekiyō) -- Many laws draw territorial and demographic lines in terms of the territorial and demographic applicability of other laws. "those subject to" and "those not subject to" the application of the Family Register Law, which had applied only to the prefectural Interior and hence only to people in Interior registers, were stock phrases in prewar, wartime, and postwar laws, including conscription and election laws. During the Occupation of Japan, though in principle still an Interior law, it could directly reach only members of registers affiliated with local polities in Occupied Japan.

honseki [principal register] (本籍 honseki) -- While "permanent domicile" is not an uncommon translation of "honseki", a honseki is not a domicile, permanent or otherwise. As a legal term, it is refers to a person's primary status record as maintained by the municipality having jurisdiction over the address of the record, called "honsekichi" (本籍地). The person may be domiciled elsewhere in Japan or even in a foreign country. Because having such a register defines a person as a national of Japan, aliens who complete a Japanese form with a "honseki" or "honsekichi" box will write their nationality rather than the prefecture (and possibly the municipality and other particulars of) of their honseki address.

2 September 1945 (昭和二0年九月二日 Shōwa nijūnen kugatsu futsuka) -- The day Japan and the Allied Forces signed the general Instrument of Surrender, officially ending the state of war between Japan and the Allied Powers and beginning the Occupation of the Empire of Japan. In postwar laws, the status of a natural or juridical person is typically linked with the status of the person on and/or after this date.

enforcement territory (施行地域 shikō chiiki) -- Presumably the cabinet order, like most legal measures in Japan at the time (and some even today), applied to what in many laws (including the 1947 Alien Registration Order) was called "this country" (本邦 honpō) -- meaning "Japan" as redefined under the terms of surrender, plus other territories at which time they were returned to Japan's control and jurisdiction.

residence (居住 kyojū) -- Here "residence" suggests where one is living and possibly domiciled. Today "habitual residence" (常居所 jōkyosho) is used to refer to where a person is regarded to usually live apart from where the person may be legally domiciled (住所 jōsho) or have other addresses. Both "domicile" (see below) and "habitual residence" are differentiated from what an "address" or "residence" (居所 kyosho) as merely a place where one might be.

registration certificate (登録証明書 tōroku shōmeisho) -- Here this refers to a document certifying that the bearer is a national of the issuing country. At the time, most such certificates would have been those issued by officials of the Republic of China mission (legation) in Occupied Japan. SCAP authorized ROC to issue such certificates in 1946 and ROC made legal provisions for recognizing "overseas Taiwanese" as its nationals. After the establishment of the Republic of Korea in 1948, SCAP allowed ROK to establish a mission in Japan but never authorized it to issue certificates of nationality to Chosenese who wished to be ROK nationals. Japan did not officially recognize ROK nationality until 1965, and still does not recognized the nationality of the Democratic People's Republic of Korea (DPRK).

person who possess the nationality of Japan and the nationality of a country than Japan (日本の国籍と日本以外の国の国籍とを有する者 Nihon no kokuseki to Nihon igai no kuni no kokuseki to o yū suru mono) -- Japan has never categorically prohibited dual nationality. In fact, early history of its first formal Nationality Law is a history of complying with pressure from the United States and other countries that specifically did not welcome the fact that some of their nationals were also nationals of Japan. The treatment of Japanese nationals who have one or more other nationalities is entirely consistent with Japan's laws of laws, which since the Meiji period -- following international customary law -- have generally recognized only one nationality at a time when applying domestic laws to individuals who have more than one nationality. Dual nationals with Japanese nationality are generally regarded as Japanese when domiciled as such in Japan.

domicile (住所 jūsho) -- For Japanese and aliens alike, the term "domicile" (住所 jūsho) means one's "legal address" as a matter of where one is registered as a resident, usually for tax, suffrage, school national health insurance, national pension, school enrollment, and other civil administration purposes -- apart from the locality of one's honseki in Japan or nationality status if not Japanese.

permanent residence (永住 eijō) -- Here the term means simply to permanently reside in Japan as a person with a honseki in Japan who is legally considered to be domiciled in Japan. Today the term refers only to aliens who have been permitted to permanently reside in Japan.


Chosenese and Taiwanese, and dual-national nisei

The statuses of Chosenese and Taiwanese, and of dual nationals with Japanese nationality who owned property in Japan, were discussed and debated during the 7th session of the National Diet, in the 24th meeting of the Economic Stabilization Committee (経済安定委員会 Keizai Antei Iinkai) of the House of Representatives (衆議院 Shūgiin), which convened at 11:17 on the morning of 29 April 1950, a Saturday, and ended at 3:03 that afternoon. Minutes of such meetings are reported in the Proceedings of the National Diet (国会会議録 Kokkai kaigiroku) and can be found at 国会会議録検索システム (Kokkai Kaigiroku kensaku system) or "National Diet Proceedings search system" database, which is managed by the National Diet Library.

Two of the three bills on the agenda of this meeting, which took place about one year after the promulgation and effectuation of Cabinet Order No. 51 of 1949, were the Law Concerning Foreign Investment (外資に関する法律) and the Foreign Investment Commission Establishment Law (外資委員会設置法案). These bills, then called Cabinet submissions No. 185 and No. 186, were promulgated on 10 May 1950 -- two weeks later -- as Laws No. 163 and No. 164.

Chosenese and Taiwanese

In the course of the meeting, a member of the committee raised asked how Chosenese and Taiwanese would be treated under the investment laws, the bills of which made reference a cabinet order. The minister in charge of the Economic Stabilization Board (経済安定本部 Keizai Antei Honbu) replied that they would be treated the same as provided Cabinet Order No. 51.

Dual-national nisei

The same committee member then raised questions about the treatment of Americans who own property in Japan, in particular those who possess "dual nationality" (二重国籍 nijū kokuseki), making reference to the "nisei farmland issue" (二世の農地問題 nisei no nōchi mondai). A government committee member cited Cabinet Order No. 51, to the effect that ordinarily they would be treated as aliens, but exceptionally they would be treated as Japanese if they had continuously resided in Japan from 2 September 1945, or had been repatriated to Japan, or had received permission from SCAP to enter Japan for the purpose of permanent residence.

The background to all this is so-called alien land laws, which determine the extent to which, if any, aliens are permitted to own land in their own name. The same problems associated with alien land ownership affected considerations of alien business ownership and investments that would give aliens control of a business.

Provisions such as those in Cabinet Order No. 51, which have alienated Japanese with other nationalities who are not truly domiciled in Japan, are aimed mainly at dual nationals whose declarations of nationality were likely to be expedient in property and business matters.

[ Articles 3-23 omitted ]

附則 Supplementary Provisions

Article 24

This Order shall become effective as from the date of its promulgation.

Article 25

Any foreign national who has acquired any property or right coming under any one of the items in Article 3, paragraph 1 above, from a Japanese, or the Japanese government or local public authority during the period from January 15, 1949 to the date of promulgation of this Order, shall apply to the Commission for approval and validation concerning the acquisition thereof, within sixty (60) days as from the date of promulgation of this Order.

[ Other supplementary articles omitted ]

Top  


1952 revision of 1949 Cabinet Order No. 51

28 April 1952

Law No. 88 of 1952 (12 April)
Promulgated on 12 April 1952
Enforced from 28 April 1952

ポツダム宣言の受諾に伴い発する命令に関する件に基く経済安定本部関係諸命令の措置に関する法律

Potsudamu Sengen no judaku ni tomonai hassuru meirei ni kan suru ken ni motozuku Keizai Antei Honbu kankei shomeirei no sōchi ni kan suru hōritsu

Law concerning measures for various Economic Stabilization Board related ordinances based on matters concerning ordinances issued in conjunction with the acceptance of the Potsdam Declaration

Rush to revise laws to reflect Peace Treaty

After the signing of the Peace Treaty in San Francisco on 8 September 1951, there was a rush to make legal preparations for effects of the treaty from 28 April the following year -- including the regaining of sovereignty by Japan, and its formal abandonment of sovereignty and other rights over Taiwan and Chosen.

Law No. 88 of 1952 specifically revised ordinances under the supervision of the Economic Stabilization Board (ESB), which was established in August 1946 to facilitate Japan's economic recovery. There were similarly titled laws for other government agencies to revise ordinances under their supervision.

Legalists debate when Japan lost its sovereignty over Taiwan and Chosen. Leaving aside the belief that Japan never legally had sovereignty over Korea, on the basis only of how the Allied Powers regarded Formosa and Korea, Japan lost its sovereignty over these territories from either (1) 2 September 1945 when its signed the Instruments of Surrender in which the terms of Potsdam Declaration were restated, or (2) 28 April 1952, when the terms of the San Francisco Peace Treaty came into force.

While true that Japan lost its own sovereignty from 2 September 1945, and at the same time agreed that it would no longer possess Formosa and Korea, among other territories, as part of its sovereign dominion, the following matters make it clear that Japan did not formally lose the sovereignty it had gained in the eyes of international law in 1895 and 1910 until 28 April 1952.

  1. Allied declarations and agreements between Japan and the Allied Powers preparatory to, and legal measures imposed by the Allied Powers during, the Occupation of Japan
  2. the terms of the San Francisco Peace Treaty between Japan and the Allied Powers
  3. the terms of all treaties and other agreements made between Japan and other countries pursuant to the Peace Treaty
  4. the manner in which Japan revised and continues to revise its domestic laws pursuant to the Peace Treaty and related treaties and agreements
  5. the way in which Japanese courts have generally interpreted the above matters
Definitions of aliens and Japanese

The earlier loss of control and jurisdiction, and the later loss of sovereignty, resulted in Japanese with registers in areas which Japan did not control or have jurisdiction being regarded as neither fully Japanese nor fully aliens. It was recognized that they were nationals of Japan, but because their Japanese nationality was tied to territories no longer under Japan's control or jurisdiction, they were treated as quasi aliens for purposes of resident (alien) registration and immigration (exit and entry procedures).

Cabinet Order No. 51 of 1949 was revised, as were several other domestic laws, shortly before the San Francisco Peace Treaty came into force, to reflect its effects -- including the denationalization by Japan of all Japanese whose family registers were in the former Japanese territories of Taiwan and Chosen, including those who were residing in Japan.

Partial amendment to Cabinet Order No. 51
Cabinet order concerning property acquisition by aliens
Revisions effective from 28 April 1952

Japanese text

The Japanese text was downloaded from the statutory law database on the 衆議院 (The House of Representatives) website.

English translation

The structural translation shown here is mine.

Received Japanese text

Structural translation

ポツダム宣言の受諾に伴い発する命令に関する件に基く経済安定本部関係諸命令の措置に関する法律

Law concerning measures for various ordinances related to the Economic Stabilization Board based on matters concerning ordinances issued in conjunction with the acceptance of the Potsdam Declaration

法律第八十八号 (昭和二七年四月一二日)

日本国との平和条約の最初の効力発生の日から施行 (昭和二十五年七月一日)

内閣総理大臣・法務総裁・外務・大蔵・文部・厚生・農林・通商産業・運輸・郵政・電気通信・労働・建設大臣・経済安定本部総裁署名

Law No. 88 (12 April 1952)

Effective from first day of effectuation of Treaty of Peace with Japan (28 April 1952)

Signed by the Prime Minister of the Cabinet, the Attorney General, the Ministers of Foreign Affairs, Finance, Education, Welfare, Agriculture and Forestry, Trade and Commerce, Transportation, Postal Service, Telecommunications, Labor, and Construction, and the Director-General of the Economic Stabilization Board.

(外国人の財産取得に関する政令の一部改正) (Partial amendment to Cabinet Order concerning the acquisition of property by aliens)

第一条

外国人の財産取得に関する政令(昭和二十四年政令第五十一号)の一部を次のように改正する。

第二条第一項第一号及び第二号を次のように改める。

  一 日本の国籍を有しない者

  二 日本の国籍と日本以外の国籍とを有する者。但し、この政令の施行地に住所を有する者を除く。

[ 省略 ]

本則中第二十三条の次に次の一条を加える。

第二十三条の二 この政令の規定(第七条及びこれに係る罰則の規定を除く。)は、外資委員会の指定する外国人については適用しない。

Article 1

Parts of the Cabinet Order concerning the acquisition of property by aliens (1949 Cabinet Order No. 51) will be amended as follows.

Revise Article 2 paragraph 1 subparagraph 1 and subparagraph 2 as follows.

  (1) A person who does not possess the nationality of Japan

  (2) A person who possesses the nationality of Japan and a nationality other than of Japan. Provided, [this will] except a person who possesses a domicile in the place of enforcement of this Cabinet Order.

[ Omitted ]

Following Article 23 of this regulation add the following article.

Article 23-2   The provisions of this Cabinet Order (Excluding Article 7 and provisions for penalties related to it.) will not apply to aliens the Foreign Investment Commission designates.

"exclude a person who possess a domicile in the place of enforcement of this Cabinet Order"

This is in accordance with the "Rules of Laws" (法例) -- Law No. 10 of 21 June 1898, which contained "Law of country of origin" (本国法) and "Law of place of domicile" (住所地法) provisions. A 1990 revision added a "Law of place of habitual residence" (常居所地法) provision.

The 1898 law, last revised from 1 April 2000 by Law No. 151 of 8 December 1999, lost effectiveness from 1 January 2007, when it was replaced by "General Law Concerning the Application of Laws" (法の適用に関する通則法), promulgated on 21 June 2006 as Law No. 78.

According to both the older and newer law, when determining which country's laws apply to a plural national in Japan, the person's nationality is taken to be the most recently acquired nationality -- except that when one of the plural nationalities is Japanese, Japan's laws will apply. Stateless people are treated according to the law of the country in which they are considered to be domiciled -- or in which they are residing if their domicile is unknown. [Article 27 of law as amended through 10 June 1964]

This is in general accord with international private law, which endeavors to minimize jurisdictional conflicts.

An interesting feature of the original law is the flexibility it provided for specifying when a law came into effect in Taiwan, Hokkaido, Okinawa prefecture, and other insular districts (received English translation from EHS Law Bulletin Series, Eibon Horei Sha, 1975).

第一條

法律ハ公布ノ日ヨリ起算シ満二十日ヲ経テ之ヲ施行ス但法律ヲ以テ之ニ異リタル施行時期ヲ定メタルトキハ此限に在ラス

台湾、北海道、沖縄県其他島地ニ付テハ勅令ヲ以テ特別ノ施行時期ヲ定ムルコトヲ得

Article 1

A law will come into force after the lapse of full twenty days computed from the day of its promulgation; Provided that the same will not apply when the date of its enforcement is otherwise provided by the law.

2. As regards Formosa, Hokkaido, Okinawa Prefecture and other insular districts, a special date of the enforcement of a law may be fixed by Imperial Ordinance.

The older law was extended to Taiwan by Imperial Ordinance No. 161 of 1898.


"aliens the Foreign Investment Commission designates"

Cabinet Order No. 51, as originally promulgated, gave the Foreign Investment Commission the authority to "validate" or designate aliens allowed to acquire property or conduct business in Japan. Japanese whose nationality was based on registers in Taiwan or Chōsen, who had been Japanese on 2 September 1945 when Japan surrendered and had continuously resided in Occupied Japan since that date and not acquired another nationality, were not alienated under Article 2.1(1), and were therefore included in the definition of "Japanese" according to Article 3.1 -- unlike in the 1947 Alien Registration order, in which all but a few Taiwanese were alienated.

Because Chosenese and Taiwanese would lose their Japanese nationality from 28 April 1952, and since Japan would also regain is sovereignty from this date, there was no need for the elaborate qualifications of Article 2.1(1) to take into account the variety of legal statuses that had existed during the Occupation. From this date, all Chosenese and Taiwanese, whether qualified as "Japanese" or as "aliens" under the original order, would become aliens.

However, the distinction between Chosenese and Taiwanese who had not been alienated under the original order, and those who had been alienated, continued after the Occupation. Those who had not been had been alienated under the original had qualified rights of abode linked to the signing of the Instruments of Surrender (2 September 1945), and hence -- unlike other aliens residing in Japan -- they were not required to acquire a status of residence -- or, more precisely, they were assigned a special status under another law, effective from 28 April 1952, which evolved into the Special Resident Status defined in 1991. Moreover, as aliens permitted by the Foreign Investment Commission to acquire property, on a par with Japanese, they would continue to be treated on a par with Japanese in property transactions with other aliens.

Hence Law No. 88 of 1952 caused the phrase "and aliens the Foreign Investment Commission designates" to be added to the following clauses.

Article 3.1, Article 9
日本人又は日本国の政府若しくは地方公共団体
[a Japanese person, and the government of Japan or local public bodies]
as source of property or property rights an alien wishes to acquire

Article 3.1
日本人をして
[a Japanese person]
which an alien would cause to acquire property or property rights for the alien's benefit

Article 7
日本人
[a Japanese person]
as a party to a contract for acquisition of property or property rights, with an alien who has not been validated by the Foreign Investment Commission

In other words, qualified aliens who had lost their Japanese status when the Peace Treaty came into effect, who were defined by their residence in Japan on after 2 September 1945, continued to be regarded on a par with both "Japanese persons" (including natural and juridical persons) -- and the Japanese government and local public bodies (prefectures and municipalities) -- in property and property right transactions.

附則 Supplementary Provisions

この法律は、日本国との平和条約の最初の効力発生の日から施行する。

This law will be enforced from the first day of the effectuation of the Treaty of Peace with Japan.

Top  


Legal status of SCAP's "non-Japanese" (Koshikawa 1949)

The following report, written by a judge doing research at the Judicial Research Institute, an institution supervised by the Supreme Court, from 1948 to 1949, was published in December 1949 by the Attorney General's Office of Japan

法務府
法務資料
第三百八號
(禁轉載)
昭和二十四年十二月
日本に在住する非日本人の法律上の地位
(特に共通法上の外地人について)
4 (序)、15 (目次)、436 (本文) ページ

Hōmufu [Attorney General's Office]
Hōmu shiryō [Legal resources]
Dai 308 gō [Number 308]
(Kin tensai) [Reproduction prohibited]
Shōwa 28 nen 12 gatsu [December 1949]
Nihon ni zaijū suru hi-Nihonjin no hōritsu-jō no chii
(Toku ni Kyōtsūhō-jō no gaichijin ni tsuite)
[Legal status of non-Japanese residing in Japan
(Especially concerning exteriorites under common law)
4 (preface), 15 (contents), 436 (main text) pages
Softcover (A5)

The copy in Yosha Bunko (my library) was one I made from an original copy in the East Asiatic Library of the University of California in the early 1970s (EAL 4846.4/42224).

The document was published by the Resources Section of the Fourth Legislation Opinion Bureau (法制意見第四局資料課 Hōsei Iken Dai-4-Kyoku Shiryō Ka) of the Attorney General's Office. All four legislation opinion bureaus later become the four departments of the Cabinet Legislation Bureau (内閣法制局 Naikaku Hōseikyoku), which examines drafts of pending legislation, and expresses opinions and gives advice to cabinet members regarding existing and pending laws and related legal matters.

The document is presented as a research report by Koshikawa Junkichi (越川純吉), Gifu District Court Judge, Fiscal 1948 Judicial Researcher. The latter title refers to Koshikawa's status during fiscal 1948 (April 1948 to March 1949) as a researcher at the Judicial Research Institute (司法研修所 Shihō Kenshūjo), now called the Legal Training and Research Institute in English. The facility, affiliated with the Supreme Court of Japan, trains and examines attorneys and judges, and also facilitates judicial research.

The main body of the report consumes the first 290 pages. The rest of the report, called a "supplement" or "appendix" (附録 furoku), consists of a bibliography, alien registration statistics, and a collection of related laws and orders, including numerous SCAP directives. The SCAPINs includes those he cites as examples of how SCAP defined "non-Japanese", the last of which is SCAPIN-1961, which is followed by the text of Cabinet Order 51, which it partly inspired. Both SCAPIN-1961 and CO-51 are dated shortly before the preface of Koshikawa's report.

The appended materials end with the 1948 constitutions of the Republic of Korea (ROK) and the Democratic People's Republic of Korea (DPRK), which concern ROK and DPRK claims over the same territory and people, followed by ROK's Provisional Ordinance Concerning Nationality (國籍に關する臨時條例 Kokuseki ni kan suru rinji jōrei) (South Korea [Minami Chōsen] Transitional Government Law No. 11 of 11 May 1948), and finally ROC's Regulatory Law of Disposition of Nationality of Taiwan Sojourners Abroad (在外臺僑國籍處理辦法 Zaigai Taikyō kokuseki benhō) (promulgated by ROC's Legislative Yuan).

The appendix includes what the text of the 1947 Alien Registration Order, an abridged version of the law which abolished Naimushō effective from 1 January 1948, and the text of the Alien Registration Order Enforcement Regulations.

The separately paginated preface, presumably by Koshikawa, is dated 17 April 1949.


Object of study

Koshikawa's object is to explore the statuses of all people residing in Occupied Japan who the Supreme Commander for the Allied Forces (SCAP) defined as "non-Japanese" for Occupation purposes. He translates the SCAP term 非日本人 (hi-Nihonjin), and the term remains an essentially "alien" term which has no foundation in Japanese law.

Koshikawa writes at length about the dissonance between SCAP's determinations of who was to be considered "Japanese" and "non-Japanese" for the purposes of achieving the aims of the Allied Occupation of Japan -- and who actually qualified as "Japanese" and "aliens" under Japan's domestic laws. While addressing the status problems of all "non-Japanese" as defined by SCAP, he is especially concerned with the status of 外知人 (gaichijin) or "exteriorites" (my translation), by which he means Japanese whose nationality is tied to household registers in Taiwan (台湾) and Chōsen (朝鮮), as distinct from Japanese whose nationality is tied to registers in Japan's prefectures or Interior (内地 Naichi).

Koshikawa is to some extent concerned about the future nationality status of Taiwanese (台湾人 Taiwanjin) and Chosenese (朝鮮人 Chōsenjin), which he clearly recognizes possess Japanese nationality (国籍 kokuseki) at the time he is writing, and are therefore nationals (国民 kokumin) of Japan, and therefore Japanese (日本人 Nihonjin). His main concern, though, is the impact of SCAP's "non-Japanese" classification on the treatment of exteriorites under the 1918 Common Law (共通法 Kyōtsūhō), a domestic law of laws which determined which laws, of which legal jurisdictions of the Empire of Japan, would apply in a specific case, depending on the place of origin of the case and the statuses of the litigants. Note that Japan's 1898 Rules of Laws was a law of laws for purposes of international rather than domestic private matters.


"people of outlying areas" as "former exteriorites"

Koshinaga summarizes how the 1890 and 1947 Constitutions provided that the Nationality Law define those qualified to be "subjects" (1890 constitution) or "nationals" (1947 Constitution), thus distinguishing between "inlanders" (内国人 naikokujin) and "outlanders" (外国人 gaikokujin). "Outlanders" [aliens, foreigners] are simply those who are not "inlanders" or "Japanese" (日本人 Nihonjin) as the 1899 Nationality Law, then still in effect, calls those who possess Japanese nationality. (Pages 6-7)

Koshikawa then cites and discusses six examples of how SCAP defined "non-Japanese" for its purposes (pages 7-11), beginning with SCAPIN-852 of 2 April 1946, concerning "Entry and Registration of Non-Japanese Nationals in Japan". This SCAPIN, he says, uses "non-Japanese" (非日本人 hi-Nihonjin" to mean "all outsiders including aliens, stateless persons, and so-called exteriorites" (外国人、無国籍人、所謂外地人を含む外人全体 gaikokujin, mukokusekijin, iwayuru gaichijin o fukumu gaijin zentai).

The text of SCAPIN-852, as transcribed in Koshikawa's appendix is, is reproduced elsewhere on this page as SCAPIN-852.

In conjunction with SCAPIN-852, Koshikawa cites at length the basic definition of "alien" (外国人 gaikokujin) in the Alien Registration Order was promulgated and enforced on 2 May 1947, the day before the new Constitution came into force. Article 2 of the order -- the last imperial ordinance to be issued under the 1890 Meiji Constitution -- defined "aliens" as persons who do not possess Japanese nationality and excepted some aliens from regard as "aliens" for the purposes of the law. Article 11, however, provided that, for the time being, Chosenese, and some Taiwanese, would be regarded as "aliens" for the purpose of the law -- implying that they were not "aliens" according to the definition of in Article 2.

See 1947 Alien Registration Order for a closer examination and analysis of this ordinance.

The last of the six definitions of "non-Japanese" Koshikawa introduces is SCAPIN-1961 of 14 January 1949, titled "Business Activities of Non-Japanese in Japan" (page 9). This directive, he says, uses the term "non-Japanese" (非日本人 hi-Nihonjin) for "outsiders in toto" (外人全体 gaijin zentai).

Koshikawa then observes that, for the purpose of clarifying the study bounds (研究範囲 kenkyū han'i) of the present report, he will limit [restrict, confine, define, qualify] (限定する gentei suru) (1) "Japan" (日本 Nihon) as "the territorial bounds where [within which] the political and administrative authority of the present Government of Japan reaches" (現在日本政府の政治的行政的権能の及ぶ地域的範囲 Genzai Nihon Seifu no seiji-teki gyōsei-teki kennō no oyobu chiiki-teki han'i), (2) "non-Japanese" (非日本人) as "outsiders" (外人), and (3) "people in outside [outlying] areas [exteriorites]" (外地人) as "former exteriorites" (旧外地人).

In other words, he says, the bounds of the present report are the legal statuses of "all outsiders" (一切の外人 issai no gaijin) residing within the bounds of by the authority of the present Government of Japan respect to this definition of Japan's political and legal authority -- especially with respect to "Taiwanese, Chosenese, Kwantung provincials, and Nan'yo islanders" (台湾人、朝鮮人、関東洲人 [sic = 関東州人]、南洋群島人) (page 11).


"future prospects"

Koshikawa explores "future prospects" in terms of the "peace treaty" and "the status of aliens" (pages 29-31). He refers to provisions in the United Nations Universal Declaration of Human Rights, and to provisions concerning human rights in peace treaties between the Allied Powers and the Axis Powers and their Satellite Powers in Europe, beginning with some provisions in the peace treaty signed with Italy, as he specifically notes, on 10 February 1947, and then some provisions in treaties with Hungary, Rumania, Bulgaria, and Finland, which were signed on the same day. He also refers to the 1947 Constitution of Japan as a foundation for human rights of aliens under Japanese domestic law.

He finds some provisions in the European treaties useful benchmarks for considerations of the sort of provisions that might be made concerning the human rights of aliens in Japan in the peace treaty Japan would at some point be signing with the Allied Powers. Other provisions, he observes in conclusion, such as those concerning Albania and Ethiopia in the treaty with Italy, are not so easily arguable in the case of Japan, owing to "the peculiarity of the occupation management [control] policies in Japan and other special circumstances in Japan" (日本の占領管理政策の特殊性其の他日本の特殊事情 Nihon no senryō kanri seisaku no tokushu-sei sono hoka Nihon no tokushu jijō) (page 31).


"third nationals"

Koshikawa's report -- concerned mainly with applicable law in consideration of conflicts between SCAP's and Japan's definitions of the legal status of people regarded as "non-Japanese" (outsiders) and "persons in outlying areas" (former exteriorites)" -- reviews numerous jurisdictional issues that SCAP had to address in the course of its government of Occupied Japan. The appendices is full of SCAP materials transcribed in English and translated into Japanese, including the following Press Release from the Kyoto Military Government Team on 3 June 1947 (Item 31, pages 379-381). I have shown only the English but have shown received Japanese translations of terms of interest in (parentheses). The [bracketed numbers] also reflect numbering shown in the Japanese translation.

Kyoto Military Government Team
Apo 713 (Kyoto Honshu)
June 1947

Press Relesse: [sic] No. 9

In view of the recent phenomenal increase of disputes involving " Therd [sic = Third] Nationals " (第三国人 Dai-san-gokujin) over the evacuation of houses that have been referred to this office for mediation or settlement, we would like to express our views as follows:

[1] Civil cases of this nature should be settled amicably between the parties concerned on the basis of the Japanese Law pertaining to the Renting of Houses i. e. [sic] considering such legal conditions as whether the demand for evacuation is based on cogent reasons and also six months have elapsed after the notification of the cancellatior [sic = cancellation] of the contract of lease.

[2] If the parties concerned have failed to reach any settlement between themselves, they should refer the case to the Japanese Law Court and abide by its decision. The Military Government Team will not act as mediators in disputes of this kind.

[3] If there should be any member of the " Third Nationals " who declared that he has no need to obey the Japanese Civil Law (日本民法 Nihon Minpō) because he is a foreigner (外国人 gaikokujin) or who uses such threatening language as that the house shall be requisitioned in the name of the Occupation Authorities (進駐軍 Shinchūgun) or who otherwise resorts to violence intimidation, or other unlawful conducts, then his case should be referred to the proper court (専門の法廷 senmon no hōtei).

A note to the Japanese translation points out that "proper court" refers to an Allied Authority Court or a Japanese Court.

While a relatively minor issue, handled by a regional authority under GHQ/SCAP's overarching national authority, this press release exemplifies the complications created by SCAP's imposition of "non-Japanese" status on Koreans and Formosans, among others, for purposes of repatriation. The press release came out one months after the enforcement, from 2 May 1947, of the Alien Registration Order, which regarded Chosenese and some Taiwanese as "aliens" for purposes of the order. Yet, under SCAP's rules, Taiwanese who had remained in Japan but not migrated to Chinese nationality, and Chosenese who had remained in Japan, would continue to be nationals of Japan and subject to Japan's laws as Japanese nationals.

"law and order"

The principle of leaving law and order issues essentially to the Imperial Japanese Government is clear from the very beginning of the Occupation of Japan, as seen in the following memorandum dated 26 September 1945 (Koshikawa 1949, page 336).

Memorandum concerning Looting by Chinese Laborers.
26Sept. 1945. [sic]

1. This memorandum is in reply to memorandum No. 1 from the Liaison Committee (Tokyo) for the Imperial Japanese Army and Navy, subject: Preventing the riotous movements of the Chinese laborers (中国人労働者 Chūgokujin rōdōsha), dsted [sic = dated] 24 September 1945 and signed by Lieutenant General s. [sic] Arisue, Chief Commissioner.

2. Under the provisions of directives issued by the Supreme Commander for the Allied Powers to the Imperial Japanese Government, the Civil Police Force shall be held responsible for the preservation of law and order.

A 25 July 1946 memorandum concerning taxes and non-Japanese nationals states that SCAP has no objections to the obligation of non-Japanese to pay ordinary national and local taxes -- except that "the official salaries of military personnel, of civilians attached to the occupation forces, and of personnel accredited by the Supreme Commander for the Allied powers [sic] as having a diplomatic status" (pages 341-343).

28 November 1945 memorandum concerning employment policies stipulates that the Imperial Japanese Government was to insure . . . no discrimination (差別待遇 sabetsu taigu "discriminatory treatment"). . . for or against any worker . . . in wages, hours or working conditions by reason of nationality, creed or social status (国籍、信仰又は社会的地位 kokuseki, shinkō mata wa shakai-teki chii). The memorandum goes on state that "Koreans, Formosans and Chinese who elect to remain in Japan rather than to accept repatriation will be guaranteed the same rights, privileges and opportunities in employment as are extended to Japanese nationals (日本人 Nihonjin) in comparable circumstances" -- among other non-discriminatory provisions related to employment (pages 352-353).

Criminal offenses against Japanese by occupation troops are covered by a 27 September 1945 memorandum (pages 353-355). A 19 February 1946 memorandum provides that Japanese courts will not exercise criminal jurisdictions in cases involving defendants who are United Nations nationals, or cases involving the security of Occupation Forces or the killing or assaulting of a member of such forces, et cetera (pages 356-361).

There are numerous other memoranda concerning criminal and civil jurisdiction issues, some involving Koreans and certain other nationalities.


Registered aliens circa mid 1948

Aliens registered as of July (or June) 1948 are broken down by "nationality" (国籍 kokuseki) and prefecture. "Aliens" are defined as such by various provisions of the 1947 Alien Registration Order. Military and civilian Occupation personnel were excepted from "alien" status. Taiwanese and Chosenese, though not defined as aliens by the order, were declared "aliens" for its purposes.

The 46 prefectures are listed from Aichi to Yamanashi) -- i.e., in what would have been their alphabetical order had their names been romanized. The following table shows nationality entities (not necessarily states) with tallies of 200 or more. The order of these entities in the report is based on their underlying English names, which I have shown after an "equal" (=) sign (pages 303-305; the romanizations and SCAP-esque translations mine).

Aliens registered as of July 1948

Romanizations  = Translations     Number

Kanada         = Canada              567
Chuugoku       = China            20,421
Eikoku         = England             473
Taiwan         = Formosa          14,958
Furansu        = France              346
Doitsu         = Germany             728
Oranda         = Holland             231
Chousen        = Korea           591,410
Hitou          = Philippines         286
Toruko         = Turkey              328 
Amerika        = United States     2,364
Souren         = USSR                338
Hakkei Roshiya = White Russia        343
Mukokuseki     = Stateless           579

[ Other "nationality" entities omitted ]

Kei            = Total           635,142

Note that, under the operational definition of "aliens" for the purpose of the law, the above aliens do not include foreigners SCAP has recognized as related to the Occupation of Japan, or foreign government officials. Nor does it include anyone affiliated with Interior territories that have been separated from "Japan" as an occupied entity -- i.e., "Ryukyuans" are not alienated under the 1947 Alien Registration Order.

GHQ/SCAP Memorandum (21 June 1948)

This memorandum, a rescission of SCAPIN-1757 of 4 August 1947, which also concerned "Definition of United, Neutral, Enemy, Special Status and Undetermined Status Nations". Note that SCAPIN-1757 was a rescission of SCAPIN-217 of 31 October 1945, which defined only United Nations, Neutral Nations, and Enemy Nations.

Of the many "nations" listed under these five categories, the following are of special interest.

United Nations

China
Union of Soviet Socialist Republic
United Kingdom of Great Britain
United States of America

Enemy Nations

Germany
Japan

Special Status Nations

Austria
Italy
Korea
Siam (Thailand)

China was of course a principal member of the United Nations -- the collectivity of nations, not yet the present United Nations, which had jointly vowed to fight Germany, Italy, and Japan on 1 January 1942. The USSR, which had signed a neutrality pact with Japan in April 1941, did not denounce the pact until April 1945.

Austria (which had been a part of Germany), and Korea (which had been a part of Japan), were regarded as "liberated" entities. Italy, among the three Axis enemy states, had surrendered in 1943 and joined the Allied cause against Germany. Siam had allied itself with Japan, to the extent of permitting Japanese forces to pass through and mount operations from its national territory, but had not joined the Tripartite Pact.


ROK and DPRK constitutions

The last two items appended to the report are Japanese translations of the 1948 constitutions of ROK and DPRK. The object of providing such materials is to show how ROK and DPRK defined their geographical and demographic territories.

1948 ROK constitution

Article 3 of ROK's constitution, following the style of Japan's 1890 and 1947 constitutions, stipulated that the qualifications for being its "nationals" (國民 J. kokumin) were to be determined by a statute law. The statute was its 1948 Nationality Act. Article 4 defined ROK's sovereign territory as the "Han peninsula and associated islands and straits" (韓半島及びその附属島嶼 (J. Kan hantō oyobi fuzoku tōsho) (Article 4).

Article 8 of ROK's constitution stipulated that all nationals were equal under the law, and would not be subject to discrimination in their political, economic, or social life on account of their sex, [religious] beliefs, social status (社会的身分 J. shakai-teki mibun), et cetera. Unlike Japan's 1947 Constitution, "race" (人種 jinshu) was not listed as a cause of discrimination. And unlike DPRK's constitution, no mention was made of "racioethnic minorities" (see below).

1948 DPRK constitution

DPRK's constitution speaks of its "people" (人民 J. Jinmin) rather than nationals. Article 11 provided that all "citizens" (公民 J. koōmin) of DPRK were had equal rights regardless of their sex, racioethnicity ["nationality"] (民族 J. minzoku), status (身分 J. mibun), [religious] beliefs, et cetera. "Racioethnic minorities" ["national minorities"] (少数民族 J. shōsū minzoku) in DPRK were to have the same rights as "Chosŭn; citizens" (朝鮮公民 J. Chōsen koōmin).

However, the equality of some people was qualified. A few articles restricted the property and suffrage rights of Koreans who had collaborated with Japanese during the period of Japan's rule. Article 83 disqualified those who had served as a judge or prosecutor under Japan's rule from holding such posts in DPRK.

Top  


Effects of 1952 San Francisco Peace Treaty

Japan, its talks with ROC out of the oven by early April 1952, and its talks with ROK by then in the freezer, announced on 19 April 1952 the effects that the permanent or indeterminant separation of parts of its sovereign dominion from its national territory would have on nationality and family registers.

The San Francisco Peace Treaty resulted in the permanent separation from Japan's sovereign dominion of a number of territories which had been occupied by foreign states other than the United States, while a few parts of its sovereign dominion would, for the time being, remain under the administration of the United States. These territories shared in common the fact that people in their household registers had been Japanese nationals on account of the territories being part of Japan's sovereign dominion.

The effects of the territorial provisions in the treaty on status of the members of such registers were clarified in an Attorney General's Office notification bearing the title "Concerning the disposition of nationality and family register matters regarding Chosenese, Taiwanese, and others, associated with the effectuation of the Treaty of Peace". The notification was issued on 19 April 1952, a Saturday -- and the provisions of the treaty came into effect on 28 April, a Monday, nine days later.

The notification stated as a matter of fact that (1) Chosenese and Taiwanese would lose their Japanese nationality from the day the Treaty of San Francisco came into effect, (2) people who had household registers on Karafuto or Chishima would not lose their Japanese nationality, and (3) that matters concerning the registers of people in the Nansei Islands south of the 29th parallel of north latitude (which included Okinawa), the Ogasawara Islands, the Iou Islands, and Minami-torishima -- which had not yet been returned to Japan -- would be dealt by

For the text of the 19 April 1952 notification, and my structural translation, see Civil Affairs A No. 438 notification.

The notification is concise and lean. It does not elaborate on the coarser and finer points of domestic law that Japan's legal bureaucrats had debated amongst themselves for considerable time before resolving that only members of registers affiliated with the prefectural Interior entity of the former Empire of Japan would remain actual or virtual Japanese nationals.

Though Ryukyuans had been partly alienated by SCAP rules, all people in Interior registers, if they were domiciled in Occupied Japan, had qualified for rights of suffrage in the first postwar elections in 1946. And they had not been alienated by the 1947 Alien Registration Order.

People in Chōsen and Taiwan registers, however, had been alienated not only by SCAP rules, but by Japanese laws effected by SCAP's insistence that registers in Korea (Chōsen) and Formosa (Taiwan) were no longer Japan's business. Members of Chōsen and Taiwan registers had not been reached by the revised election law, their they were alienated for purposes of alien registration.

People in Chishima and Karafuto had began evacuating shortly before the Soviet Union invaded these territories in mid-August 1945. Formal evacuation from Karafuto after its occupation by the USSR resumed for a while from December 1946, but a number of people remained for personal reasons. In principle, though, the Karafuto registers of people domiciled in Japan would continue to justify their treatment as Japanese nationals.

Registers in the Nansei Islands (including Okinawa) and other islands temporarily under US administration continued to be serviced under Interior laws. The civilian government of the Ryukyus adopted localized versions (somewhat Americanized) version of Japanese laws, including the Family Register Law. Japan made provisions to service the family registers of Ryukyuans domiciled in Japan. Ryukyu versions of Japanese laws were Japanese when Okinawa was returned to Japan in 1972.

One point in Japan's decision is the continuity of actual or virtual legal servicing of Interior registers not directly under the control and jurisdiction of Occupied Japan from 1945, or of Japan as a reborn sovereign state from 28 April 1952. Whereas Japan's influence over registers in Chōsen and Taiwan ceased when these territories were surrended.

Another point is the correlation between the manner in which SCAP rules, and Japanese legal measures influence by SCAP's rules, had already essentially alienated Koreans and Formosans from Japan's civil nationality. The formal territorial severance of Korea (Chōsen) and Formosa (Taiwan) from Japan left Japan with no legal foundation for continuing to regard Chosenese and Taiwanese as Japanese.

Other provisions could have been made for them to easily retain their Japanese status, or to easily regain it without the fuss of naturalization. Those options, though, are another matter -- and one in which neither ROC nor ROK showed the least interest. Any gesture on Japan's part to provide options other than naturalization would have been a purely unilateral act within the prerogatives of its sovereign domestic laws.

Top