Derivative nationality

Personal status based on interpersonal relationship

By William Wetherall

First posted 15 May 2014
Last updated 1 June 2021

Derivative status Derivative nationality in Japanese laws from 1873-1950 • 1957 Convention on the Nationality of Married Women

Derivative status

I use "derivative status" to mean any status attributed as an effect of entering into a relationship with another person, such that one acquires the other person's status, or a status based on the other person's status. Though names are not ordinarily thought of as a status, family names identify their holders as members of one family and not another. A certain name may or may not engender peculiar social or political effects, but that is another matter.

A nationality is like a name. Most people acquire both a name and a nationality at birth. A child's name is determined by the conventions of a child's families. Its nationality is determined by the legal conventions of the state in which the child is born, and/or the states that control the nationalities of its parents. Some children end up with two, sometimes more nationalities. Some end up with none.

The social or political effects of a given nationality vary with the nationality. And within the same nationality, the advantages and disadvantages of possessing the nationality may vary individually with sex, age, domicile or place and status of residential, legal competency, mental capacity, criminal record, and so forth, possibly even with religion, language, ethnicity or race.

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Derivative nationality in Japanese laws from 1873-1950

By "derivative nationality" I mean any nationality acquired later in life as a result of changing one's relationship with another person, such as through adoption or marriage, if not both.

In Japan, the earliest law to make a provision for an alien to acquire Japanese status through marriage or adoption was Great Council of State Proclamation No. 103 of 1873. This proclamation allowed the head of a Japanese household to petition the government for permission for male member of the family to marry an alien, or for the family to adopt an alien.

Derivative nationality for alien wives

An alien woman who married a Japanese man would enter his family's register, and thereby acquire both its family name -- which everyone in the register shared -- but also the "status of being Japanese" as being a subject or national of Japan was then called. And a Japanese woman who married an alien man, who stood to gain his nationality, would lose the status of being a Japanese.

These provision reciprocated similar provisions in the nationality laws of most other countries, including jus soli (right-of-soil) states, which regarded nationality as a male province. Women generally couldn't vote or hold political offices. They were free to change their national allegiance.

In the 19th century, most societies in the world viewed married women as having left their natal family and joined their husband's family. In the process they also -- usually but not necessarily -- adopted their husband's family name in lieu of their original family name. In Japan, then and still now, a married couple must share the same family name, but at the same time -- then as now -- it was possible for a husband to leave his original family and enter his wife's family, and assume it name.

In some Korea, until very recently, however, people were generally not marry something with the same surname or clan name, and while a married woman became part of her husband's family, she retained her natal clan name.

When Japan annexed Korea as Chōsen in 1910, it respected most conventions of Korean family law in its administration of Chōsen household registers. But from 1940, the Governor-General of Chosen imposed ordinances that required heads of Chōsen families to chose a single name from the family register for use as a shared family name. See Soshi kaimei myths for why most Chosenese didn't like the idea.

Derivative nationality for alien husbands

Proclamation 103, however, also provided for the adoption of a foreign husband into his Japanese wife's family register. He, too, by entering the register, would assume its family name and acquire the status of being Japanese. This startled officials at the British legation in the foreign settlement, who had difficult understanding the notion of a man changing his national allegiance.

In customary Japanese family law, the woman usually migrated to her husband's household and became a member of his family. But it was possible for the man to migrate to his wife's family as a so-called "adopted son-in-law" (婿養子 muko yōshi) or "incoming husband" (入夫 nyūfu), and in doing so he stood to be an heir to the family's headship. This practice facilitated the continuation of families that had no sons, or had sons but none who qualified for the headship.

Proclamation 103 therefore merely extended customs already familiar in Japan's domestic family laws, into the realm of international private law, so to speak.

Japan, when attempting to make Chōsen's territorial family laws compatible with the family laws of the prefectural Interior, also introduced the provision for husband adoption. Some Chosenese liked the idea. Most preferred to adopt heirs from their own blood lines. For that matter, most Interior families without sons were also more like to adopt a surplus son of a related family.

What most upset Chosenese, though, was the permissiveness in Japanese family law for marriages between relatives as close as 1st-cousins -- though in practice such marriages are rare. Compared with Koreans, Japanese have generally been more liberal about maintenance of pedigree and more tolerant of closer degrees of genetic or "blood" mixture.

Derivative nationality through naturalization or adoption

Japan's 1899 Nationality Law provided for the usual variety of ways to acquire Japanese nationality other than through birth, including parental (paternal or maternal) recognition, but also naturalization and adoption.

Alien children, but also adults, could become Japanese through adoption into a Japanese family register.

The alien wife of an alien man who naturalized had to naturalize with him, unless there were provisions in her home country law that conflicted with this requirement. Minor alien children also had to be naturalized with their parents.

One nationality per person and one nationality per family

All of the above provisions for derivative nationality were predicated on the ideal -- observed by practically all states at the time -- that everyone in a family be of the same nationality. This was assured by compelling married women to follow their husband's nationality.

It was easy then, when men were regarded as politically superior to women, to rationalize nationality laws that treated the nationality of a woman as something that wasn't really hers. This attitude began to change in countries that extended rights of suffrage to women.

In the 1920s, there were efforts within the League of Nations to adopt a convention that eliminated the practice of depriving a woman of her nationality simply because she married, or because her husband changed his nationality. The League of Nations was interested in minimizing statelessness and dual nationality, but not in recognizing the right of a woman to her own nationality, so to speak.

Not until after World War II was the political climate ripe for the United Nations, which succeeded the League of Nations, to recognize that a woman had as much a right as a man to control her nationality -- even if this meant the end to the standard of one nationality per couple. For a remarkable book on this subject, see Candice Lewis Bredbenner's A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998), reviewed as Bredbenner 1998 in the "Nationality" section of the "Bibliographies" feature of this website.

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1957 Convention on the Nationality of Married Women (CNMW)

The United Nations Convention on the Nationality of Married Women (CNMW) is relative simple. The first 3 of its 12 articles are given to its main provisions. The other articles are pretty much boilerplate provisions related to the enforcement, applicability, and bureaucratic maintenance of the convention.

The majority of the world's states -- including Japan -- have not joined it, ostensibly because they were already in compliance with its provisions.

No derivative nationality in Japan's 1950 Nationality Law

Japan's 1947 Constitution, in recognizing the dignity of the individual and the essential equality of the sexes, required eliminating patriarchy and primogeniture from Japan's family laws. Effective from 1948, the Civil Code and Family Register Law put men and women on an equal footing, as least in the eyes of the law. It would take many years for long-standing attitudes to catch up with the spirit of the Constitution and law.

The 1950 Nationality Law retained the preferential patrilineal provisions of the 1899 Nationality Law, but otherwise respected the letter and spirit of the Constitution. Under the 1950 Nationality Law, aliens who marry Japanese have to naturalize if they wish to become Japanese. And a Japanese woman no longer loses her Japanese nationality simply because she marries an alien and acquires his nationality as an effect of the marriage.

The 1950 law would not become ambilineal until 1985. However, nationality law suits filed in the late 1970s and early 1980s, alleging that patrilineality was unconstitutional because it discriminated against Japanese women married to aliens and their children, were dismissed (see Sugiyama v. State, 1978-1988).

In dismissing the cases, courts agreed with the Ministry of Justice that Japanese nationality, though usually acquired at time of birth to a Japanese parent, was not acquired from the parent but from the state, through the operation of laws enacted by the legislature. The Constitution both obliged and empowered the legislature to determine the qualifications to be a national of Japan in the form of statutes. The Nationality Law, not a parent, was the source of a child's nationality.

To put it a bit differently -- Japanese are Japanese because they possess Japanese nationality. But the nationality they possess is not an asset that they can share with or give to another person, even their own child.

Convention on the Nationality of Married Women
Nationality of married woman independent of husband's nationality

Sources

The following text is a reformatted version of a copy of the text on the United Nations Treaty Collections website.

Signing and enforcement

The convention was opened for signature and ratification on 29 January 1957.

The convention entered into force on 11 August 1958 in accordance with Articles 6.

Participating states

As of this writing (2014), the 74 states had joined the convention, including 29 signatory states. As is common with such conventions, many of the party states qualified with participation with reservations concerning particular provisions.

Convention on the Nationality of Married Women

  The Contracting States,

  Recognizing that, conflicts in law in practice with reference to nationality arise as a result of provisions concerning the loss or acquisition of nationality by women as a result of marriage, of its dissolution or of the change of nationality by the husband during marriage,

  Recognizing that, in article 15 of the Universal Declaration of Human Rights, the General Assembly of the United Nations has proclaimed that "everyone has the right to a nationality" and that "no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality",

  Desiring to co-operate with the United Nations in promoting universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to sex,

  Hereby agree as hereinafter provided:

Article 1

  Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.

Article 2

  Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national.

Article 3

  1. Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

  2. Each Contracting State agrees that the present Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband's nationality as a matter of right.

Article 4

  1. The present Convention shall be open for signature and ratification on behalf of any State Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a Party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.

  2. The present Convention shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 5

  1. The present Convention shall be open for accession to all States referred to in paragraph I of article 4.

  2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 6

  1. The present Convention shall come into force on the ninetieth day following the date of deposit of the sixth instrument of ratification or accession.

  2. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.

Article 7

  1. The present Convention shall apply to all non-self-governing, trust, colonial and other non-metropolitan territories for the international relations of which any Contracting State is responsible; the Contracting State concerned shall, subject to the provisions of paragraph 2 of the present article, at the time of signature, ratification or accession declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession.

  2. In any case in which, for the purpose of nationality, a non-metropolitan territory is not treated as one with the metropolitan territory, or in any case in which the previous consent of a non-metropolitan territory is required by the constitutional laws or practices of the Contracting State or of the non-metropolitan territory for the application of the Convention to that territory, that Contracting State shall endeavour to secure the needed consent of the non-metropolitan territory within the period of twelve months from the date of signature of the Convention by that Contracting State, and when such consent has been obtained the Contracting State shall notify the Secretary-General of the United Nations. The present Convention shall apply to the territory or territories named in such notification from the date of its receipt by the Secretary-General.

  3. After the expiry of the twelve-month period mentioned in paragraph 2 of the present article, the Contracting States concerned shall inform the Secretary-General of the results of the consultations with those non metropolitan territories for whose international relations they are responsible and whose consent to the application of the present Convention may have been withheld.

Article 8

  1. At the time of signature, ratification or accession, any State may make reservations to any article of the present Convention other than articles 1 and 2.

  2. If any State makes a reservation in accordance with paragraph 1 of the present article, the Convention, with the exception of those provisions to which the reservation relates, shall have effect as between the reserving State and the other Parties. The Secretary-General of the United Nations shall communicate the text of the reservation to all States which are or may become Parties to the Convention. Any State Party to the Convention or which thereafter becomes a Party may notify the Secretary-General that it does not agree to consider itself bound by the Convention with respect to the State making the reservation. This notification must be made, in the case of a State already a Party, within ninety days from the date of the communication by the Secretary-General; and, in the case of a State subsequently becoming a Party, within ninety days from the date when the instrument of ratification or accession is deposited. In the event that such a notification is made, the Convention shall not be deemed to be in effect as between the State making the notification and the State making the reservation.

  3. Any State making a reservation in accordance with paragraph 1 of the present article may at any time withdraw the reservation, in whole or in part, after it has been accepted, by a notification to this effect addressed to the Secretary-General of the United Nations. Such notification shall take effect on the date on which it is received.

Article 9

  1. Any Contracting State may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

  2. The present Convention shall cease to be in force as from the date when the denunciation which reduces the number of Parties to less than six becomes effective.

Article 10

  Any dispute which may arise between any two or more Contracting States concerning the interpretation or application of the present Convention which is not settled by negotiation, shall, at the request of any one of the parties to the dispute, be referred to the International Court of Justice for decision, unless the parties agree to another mode of settlement.

Article 11

  The Secretary-General of the United Nations shall notify all States Members of the United Nations and the non-member States contemplated in paragraph 1 of article 4 of the present Convention of the following:

  (a) Signatures and instruments of ratification received in accordance with article 4;

  (b) Instruments of accession received in accordance with article 5;

  (c) The date upon which the present Convention enters into force in accordance with article 6;

  

  (d) Communications and notifications received in accordance with article 8;

  (e) Notifications of denunciation received in accordance with paragraph 1 of article 9;

  (f) Abrogation in accordance with paragraph 2 of article 9.

Article 12

  1. The present Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.

  2. The Secretary-General of the United Nations shall transmit a certified copy of the Convention to all States Members of the United Nations and to the nonmember States contemplated in paragraph 1 of article 4.

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Citizenship but not nationality

Article 3 of the 1957 Convention on the Nationality of Married Women makes the following provision for the alien wife of a national to acquire "his" (sic) nationality through eased naturalized procedures.

Article 3

  1. Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

  2. Each Contracting State agrees that the present Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband's nationality as a matter of right.

The of Paragraph 1 is fairly clear. Article 6 of Japan's 1950 Nationality Law was already in compliance with this provision for relaxing the requirements for naturalization of an alien wife. Article 5 relaxed requirements for an alien husband but not as much. Article 7 of the 1985 revision of the 1950 Nationality Law relaxes naturalization requires for the alien spouse -- husband or wife.

Uruguay's reservation to Article 3

Uruguay signed the Convention on the Nationality of Married Women on 20 February 1957, only 3 weeks after it was opened for signature. Uruguay has not ratified the convention, but made the following reservation to Article 3 (underscoring and [clarifications] mine.

  On behalf of Uruguay we hereby make a reservation to the provisions of article 3 which has a bearing on the application of the Convention [on the Nationality of Married Women]. The [5th] Constitution of Uruguay [1952-1967] does not authorize the granting of nationality to an alien unless he is the child of a Uruguayan father or mother, in which case he may become a natural citizen. This case apart, an alien who fulfils the constitutionality and legal conditions may be granted only legal citizenship, and not nationality.

In other words, Uruguay draws a clear distinction between "nationality" and "citizenship" -- and "nationality" is limited to "natural citizenship".

Uruguay began making this distinction from its 1st constitution in 1918. It current 6th constitution, in force since 1967, continues to make the same distinction. See Uruguayan nationality for the full text, and an examination, the articles in Section III of Uruguay's constitution, which govern the natural (through birth) acquisition of its nationality, which cannot be lost.

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