Nationality in Japan
The legal foundations of a raceless nation
Article drafted 2002, published 2006, updated 2024
By William Wetherall
First posted August 2002
Last updated 1 January 2024
Publication history
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Corrections
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Terminology
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Abstract
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Author
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Bibliographical note
1. State, territory, and nation
1.1 Nationality and citizenship
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1.2 Pre-Meiji Japan
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1.3 Legal foundations
1.4 1871 1872 Family Registration Law
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1.5 1873 International Marriage Proclamation
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1.6 1899 Nationality Law
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1.7 Initial determination
2. Nationalization
2.1 The sovereign empire
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2.2 Hokkaido
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2.3 Okinawa
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2.4 Ogasawara
2.5 Taiwan
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2.6 Karafuto
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2.7 Korea as Chōsen
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2.8 Subnationality
3. Degenderization
3.1 1950 Nationality Law
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3.2 1985 Nationality Law
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3.3 DPRK, PRC, ROK, and ROC laws
4. Nationality issues
4.1 Continuing problems
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4.2 Statelessness
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4.3 Recognition and legitimation
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4.4 Surrogacy and adoption
4.5 Naturalization
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4.6 Dual nationality
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4.7 Merging registers
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4.8 Imperial Caste Law
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4.9 Nationalism and race
See 2009 Nationality Law revisions (new page) for the current version of 1950 Nationality Law.
See Loss of nationality when naturalizing in another country (below) for 2018-2021 court case.
Publication history
This article is a corrected, appended, and hyperlinked version of the following article.
William Wetherall
"Nationality in Japan"
Soo im Lee, Stephen Murphy-Shigematsu, and Harumi Befu (editors)
Japan's Diversity Dilemmas
(Ethnicity, Citizenship, and Education)
Lincoln (NE): iUniverse, 2006
Pages 11-46 (Chapter 2)
Corrections
The following scheme has been used to mark all text which differs from the published article.
Revised parts are overstruck.
Revisions are shown in purple.
Addenda are boxed and shown in blue.
Links to related articles are shown in green.
Word or phrase with comment in following box.
All diacriticals and non-alphabetic graphs have been added.
Terminology
Laws Unless otherwise noted, laws are now identified by the year they came into force.
Chōsen and Chosenese During the period of Japanese rule, "Korea" (韓国 Kankoku) and "Koreans" (韓人 Kanjin) became "Chosen" (朝鮮 Chōsen) and "Chosenese" (朝鮮人 Chōsenjin) in Japanese law. Clearly denoting this change in designation facilitates understanding the status of the territory and its affiliates during this period, and the legacy of their status as it continues to this day in treaties and other forms of legal treatment in Japan.
Japanese Also because the coordinate system for nomenclature in this article is Japanese law, "Japanese" shall always refer only to those who are affilitated with Japan by reason of nationality, regardless of regional (subnational) or personal (racioethnic) attributes. Accordingly, during the period that Taiwan, Karafuto, and Chōsen were subnations of Japan's sovereign empire, their affiliates, as imperial subjects, were Japanese, as were subjects of the Interior subnation consisting of the prefectures.
Abstract
Japan's Nationality Law has always been on a par with the nationality laws of most other countries in that being Japanese has been a matter of legal status, not race. Originally patriarchal and patrilineal, Japan's Nationality Law no longer links nationality with gender. Japanese nationality is now acquired at time of birth primarily through ambilineal kinship and secondarily through place-of-birth. Some minor aliens can become Japanese through legitimation and acknowlwedgement after birth] [1985-2008] acknowledgement after birth [since 2009]. Some adult aliens can become Japanese through naturalization, and there is no legal distinction between natural and naturalized status. Statelessness is not entirely prevented. Dual nationality is possible. Because Japanese nationality evolved from, and continues to be based on, membership in a family register associated with Japan's sovereign territory, registers of aliens are administered separately, a practice that makes life cumbersome for families with members of Japanese and other nationalities. Historically, Japan's nationalization of Taiwan, Karafuto, and Korea as Chōsen between 1895 and 1910, and the loss of these territories as parts of Japan's sovereign territory in 1945, created a host of nationality issues that continue to affect millions of people throughout East Asia.
Author
William Wetherall received a BA, MA, and PhD in Japanese and Asian Studies from the University of California at Berkeley, where he studied psychological anthropology and literature. He has written extensively on suicide, minorities, and other social issues in Japan, both as a free lance journalist and as an independent researcher. He has also translated a few short stories, co-translated a novel, written several original short stories, and is now working on a full-length novel. He migrated to Japan in 1975 and became a permanent resident in 1983. In 1978 and 1982, he and his then wife sued the Japanese government on behalf of their two children, alleging that the patrilineal bias in the Nationality Law at the time violated the constitutional rights of the children and their mother.
Bibliographical note
All translations of Japanese sources are mine. Hundreds of book, journal, and web sources have been consulted, but I am solely responsible for the presented distillations and interpretations of historical facts, events, developments, and trends.
Two books, unrelated to Japan, have inspired the broader sweep of this report, and I consider them essential reading for any student of nationality theory and practice. One is T. Alexander Aleinikoff and Douglas Klusmeyer, editors, Citizenship Today: Global Perspectives and Practices (Washington, D.C.: Carnegie Endowment for International Peace, distributed by Brookings Institution Press, 2001). The other is Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998).
The most valuable single source relevant to nationality in Asia is Ko Swan Sik, editor, Nationality and International Law in Asian Perspective (Dordrecht: Martinus Nijhoff Publishers, 1990). The chapters on ROC and ROK are dated, and PRC and DPRK are not covered, but Hosokawa Kiyoshi's "Japanese nationality in international perspective" (pp. 177-253) is the clearest and most comprehensive overview of Japan's Nationality Law, arguably in any language. Hosokawa's prefatory comments on Shinto, racial and cultural homogeneity, and the Japanese language fortunately have no relevance to his generally sound and reliable legal treatise.
See Bibliography for more references.
1. State, territory, and nation
1.1 Nationality and citizenship
A state defines its geographic limits by territory and its demographic limits by nationality. Nationality is a legal status, or membership, within a nation governed by a state. Japan, like most other countries in the world, is a mononational state. There are no semi-sovereign subnations of the kind that exist in, say, Canada, the Commonwealth of Independent States, the People's Republic of China, the Republic of China, or the United States. Moreover, all Japanese possess a nationality that is essentially of the same quality. It is something one either has or does not have. Expressions like "half" or "full" Japanese, or "pure" or "ethnic" Japanese, are legal impossibilities.
Unlike nationality, citizenship is not a status but a variable set of rights and obligations. States extend various elements of citizenship to nationals, to non-nationals within their territories, and to otherwise affiliated non-nationals. For example, aliens outside Japan, if affiliated with Japan through a valid visa or residence status, will continue to exercise the elements of citizenship that derive from their affiliation. Citizenship is accorded not only by states, but also by subnations within states, by intranational polities like prefectures, municipalities, and neighborhood associations, and even by transnational and supranational bodies (a company governed by the laws of at least two states would be a "transnational body", while the United Nations, with treaties that extend to all signatory states, would be a "supranational body"). Citizenship usually varies with personal attributes like nationality, residence status, age, gender, mental capacity, and criminal record. Japanese laws accord all Japanese, and non-Japanese affiliated with Japan, various elements of municipal, prefectural, and state citizenship on the basis of such attributes.
"Nationality" and "citizenship" are commonly confused, as are "nationality" and "race." One reason "US citizen" is more idiomatic than "US national" is that US nationality law differentiates between citizen nationals and non-citizen nationals. Americans who have political rights in the federal United States are citizens as well as nationals, while those who do not have such rights are only nationals. In emerging civil societies like Japan and the United States, however, citizenship encompasses more than rights of suffrage. In both countries, most of the elements of citizenship accorded to nationals are also accorded to affiliated non-nationals. Since this report is about nationality, it will touch upon citizenship only when affected by naturalization, dual nationality, or Imperial Family status.
US nationality and US citizenshipBearers of US passports will observe that the identification page states that their "Nationality" is that of the "United States of America". The page does NOT state whether the bearer is a citizen or merely a national of the United States, for only "nationality" matters when crossing a state (national) border. The State Department page of a US passport refers to the bearer as a "citizen/national" because while all US citizens are US nationals, not all US nationals are US citizens. However, this distinction matters only in US municipal (domestic) law, while only nationality matters in private international law. Philippine citizens as US nationalsQualified inhabitants of Porto Rico (Puerto Rico), the Virgin Islands, and Guam became citizens of the United States, as well as nationals, in 1900, 1916, and 1950. Today, most non-citizen nationals of the United States are people who were born in the unincorporated U.S. territory of American Samoa to parents who were not themselves US citizens. For nearly half a century, Filipinos were "nationals" of the United States but "citizens" first of the Philippine Islands (1902-1935), and then of the Republic of the Philippines (1935-1946). During the latter of these two periods, Filipinos were "considered as if they were aliens" for immigration purposes. Not until the Philippines gained full independence in 1946 did Philippine citizens become nationals of the Philippines and not the United States. Only then did "Philippine citizenship" under municipal law become tantamount to "Philippine nationality" under international law. See US nationalizes Philippine Islands as territory for an overview of the Treaty of Paris of 1898. See Philippine Islands become Republic of Philippines for an overview of the 1934 Philippine Independence Act and the 1935 Filipino Repatriation Act. See 1934 Philippine Independence Act for an overview of the political context of the change in status of Filipino's as US nationals from 1935. |
Another reason some people speak of "citizens" rather than "nationals" is that "nationality" and "national origin" are popular synonyms for race and ethnicity. This racial sense of "nation" is preserved in US laws and policies concerning several hundred semi-sovereign indigenous tribes and bands. Formal membership in these polities is typically based on documentable blood quantum. US nationality and citizenship in the federal states, once highly racialized, did not become entirely race-free until after World War II, whereas race has never been a requisite of, or barrier to, nationality or citizenship in Japan. The League of Nations was ambivalent about race as a trait of a member state, but the United Nations formally regards all of its member states, including mononational states like Japan, as non-racial, non-ethnic entities.
The odds are very high that readers of this book and its authors, including this writer in unguarded moments, reflexively associate nationalities like Japanese, Chinese, Korean, and even American with race or ethnicity. Such associations are instilled from childhood to the point that racialism -- the impulse to racialize people on the basis of their face or name or nationality -- becomes a hard habit to break. Ironically, in their mission to rescue the world from racial bias and discrimination, some multiculturalist educators are doing more to deepen and harden racialist outlooks than inculcate raceless, colorless, and cultureless attitudes toward nationality as a purely legal status. The side-effects of identity politics, which sometimes embrace race and ethnicity with more passion than nationality and citizenship, is another story, however. Here I will focus on the only facet of being Japanese that matters in civil society: legal status according to Japan's Nationality Law, the whole law, and nothing but the law.
CitizenshipCitizenship involves more than the right to vote and hold office in a political community. If people not yet old enough to vote can be regarded as "citizens" -- because despite their age they have certain rights and duties -- then someone not qualified to vote because they are aliens can also be regarded as "citizens" -- because they, too, have certain rights and duties. Unlike nationality, a trait equally possessed by all nationals, the value of an individual's citizenship has to be computed personally. See Elements of citizenship: Social and political belonging in Japan for a look at the rights and duties of Japanese and foreign citizens of Japan. |
1.2 Pre-Meiji Japan
Japan today is the product of migration, settlement, development, civilization, exploration, expansion, exploitation, successful and failed wars, and all the other individual and collective behaviors that define the human condition. The glacially punctuated prehistories of migrations to the lands (not always islands) that now comprise Japan, and the histories of the polities that had emerged by the 6th century, are rich and relevant to an understanding of the country's complex ethnogenesis. Yet its history of social control through population registration, more than its ethnography, illuminates how Japan came to define its nationality in the late 19th century.
In the 6th century, when the dominant polity was called Yamato, there were disputes in Imna (任那 J. Mimana), a Yamato-ruled part of Korea, involving the status of children born between a Yamato man and a Korean woman. The Nihon shoki (日本書籍), an 8th century chronology, states that such cases were difficult to resolve, but an interlineal annotation comments that "When a Great Yamato person takes a barbarian [neighboring county] woman as a wife and a child is born, it shall be a Korean."
The 6th century also saw non-Yamato peoples submitting to the Yamato court, sometimes through population registration. Contingents of Emishi (蝦夷), a northern frontier people who were probably related to present-day Ainu (アイヌ), and Hayato (隼人), a southern Kyūshū people who became imperial guards, attached themselves (歸附 帰付 kifu) to the Yamato court. Envoys from the Korean kingdoms paid tribute. Large numbers of people who had come from barbarian countries (諸蕃 shoban) were summoned to the court, then settled in the provinces and districts and enrolled (編貫 henkan) in household registers (戸籍 koseki).
In the late 7th century, the dominant polity, by then called Nihon, introduced a Chinese-inspired legal system that included the selective use of population registers to keep track of certain groups of people, particularly aristocratic clans. Under the new administrative system, consisting of offices and laws that reached throughout the provinces, the reformed Japan came closer to being a nation than Yamato had been, though clan rivalries and divisiveness would prevail for another millennium and prevent the emergence of a state until the late 19th century.
Some early chronologies speak of Koreans and Chinese only as "coming across" (渡来 torai) the sea. Others describe them as "submitting and changing" (歸化 帰化 kika) in the classical Chinese sense of accepting the moral influence of a sovereign. "Kika" now means "naturalization," a legal process not defined in Japanese law until 1899.
The most significant population register in early Japan was the Shinsen Shojiroku, a peerage last compiled around 815. According to this register, about thirty percent of all aristocratic clans in the vicinity of the Heian capital in present-day Kyoto were of continental origin. By then, migration from the peninsula had stopped. Families mixed. Old families faded and new ones emerged. The passage of time and memory made it increasingly difficult, if not pointless, to keep track of lineal origins that no longer mattered.
Though large scale migration from the continent had ceased by the start of the 8th century, Japan was still an end of the trail for people who came, were brought, or drifted from all quarters to the islands until the mid 19th century, and the beginning of the trail for children born of unions between newcomers and locals. Encounters and mixing with peripheral Ainu and Okinawans also intensified during this millennium. In 1868, after two and a half centuries of isolationism, ambitious leaders set out to build a nation capable of holding its own with the foreign powers that were anchoring their ships off Japan's shores, demanding provisions, trade, and -- until Japan had became a legally competent state -- extraterritorial rights for their nationals.
Allegiance changes in early JapanSee Allegiance change in Yamato: How natives and migrants joined the fold for an overview of how people embraced by the expansion of Yamato territory, and people who settled in Yamato from other territories, including the Korean peninsula, changed their allegiance in the course of being registered in Yamato settlement, and for links to related articles. Among the related articles, see especially Reports from early records: Natives and barbarians at the dawn of Japanese history for transcriptions and translations of accounts of allegiance change in the earliest centuries of Japanese history. |
1.3 Legal foundations
Until 1868, Japan was neither a nation nor a state. The loose confederation of feudal domains that comprised Japan at the time could not be transformed into either a nation or a state overnight. The first task of the new Meiji government was to gain political control over what it considered the Japanese nation, meaning Japan's inherent islands and their inhabitants. Only then could a state evolve.
Nationhood meant consolidating the feudal domains into prefectures that constituted a single territory, and then nationalizing all local polities and their inhabitants under the banner of an evolving imperial state. Statehood meant enacting a world-class constitution and a body of laws through which the sovereign emperor and his proxies could govern the prefectures and their people.
It took only a few years to pass and implement a population registration law, but two decades to create a constitution, and another decade to settle on a civil code. The first nationality law did not come into force until 1899. Coincidentally, this was This was, not coincidentally, the year Japan terminated the last of the extraterritorial treaties it had signed with the United States, Britain, and other countries that now regarded its polity as legally competent.
1.4 1871 1872 Family Registration Law
Nationalizing inhabitants of a sovereign Japan began with the creation of a common domicile registration system throughout the country. Japan passed promulgated its first Family Registration Law (戸籍法 Kosekihō) in 1871, and the first registers were completed when the law came into force the following year.
Controlling a population through family registration already had a long history in Japan. Until the Meiji period, population registers had been used to keep track of lineage and relationships within a clan or family. During the 17th century, a parish registration system was imposed on Buddhist temples, some of which had already been recording births, marriages, deaths, and other matters about local families. The parish registers were contrived to support temples, but also to ensure that families were not Christians or members of a proscribed Buddhist sect. Temples lost their legal status as registrars with the enactment enforcement of the new law in 1871 1872.
The importance of the Family Registration Law is reflected in the fact that it came two decades before either the Constitution (憲法 Kenpō) or the Civil Code (民法 Minpō). It was even revised, in 1886, three years before the Constitution. The Civil Code and the Nationality Law (国籍法 Kokusekihō), and many other fundamental laws, presume the existence of family registers. The Family Registration Law was revised again in 1914, and ammended several times before the end of World War II. The existing Family Registration Law and Civil Code date from 1948.
1.5 1873 International Marriage Proclamation
In 1862, when Japanese were still not allowed to travel overseas, the Tokugawa shogunate decreed that a child born between a Japanese woman and a non-Japanese man would be allowed to leave Japan with its father, as a non-Japanese, with the permission of its mother. During most of the Tokugawa period, such children were treated as Japanese, an echo perhaps of the matrilineality evident in 6th century Imna. Though marriages between Japanese women and non-Japanese men were possible before the Meiji period, they were not legally recognized until 1873, when the Great Council of State issued a proclamation that permitted international marriages and allowed changes in nationality marriage and adoption alliances between Japanese and foreigners and concomitant gain or loss of "the status of being Japanese".
The 1873 proclamation shows how closely nationality was linked with the family as a corporate rather than blood entity. Though not a law of nationality, the proclamation provided guidelines for registering marriages marriage and adoption alliances between Japanese and foreigners. Such marriages alliances had to be permitted by the government. A foreign woman who became the wife of a Japanese man would become a Japanese national. A Japanese woman who became the wife of a foreign man would lose her Japanese nationality status if, as was often the case then, she acquired her husband's nationality through marriage.
Linking a woman's nationality status to that of her husband was in full accord with the patriarchal standard of laws in most other countries at the time. Though marriage and family customs in Japan had always varied regionally and included matrilocal practices, patriarchy had become the cornerstone of Japan's corporate family system, already being served by the Family Registration Law, and soon to be defined by the Civil Code.
Despite the prevalence of racial consciousness throughout the world, the 1873 proclamation permitted international marriages, and changes of nationality, without regard to race. This alone made Japan's emerging nationality laws more progressive than those in, say, the United States, where racism -- the treatment of people according to their putative race -- would prevail in immigration and naturalization law and policy for another seventy-five years.
Even more remarkably, the 1873 proclamation allowed a foreign man to become Japanese by being adopted as the husband of a Japanese woman, in which case he joined her register, took her family name, and stood to become the legal head of household and principle heir. Some foreign governments took issue with this provision because it went against the grain of their patriarchal definition of nationality, according to which males, not females, counted in a nation's political make-up.
Where suffrage existed, it was usually limited to males. So long as a woman could not vote, her change of nationality was inconsequential. Males, though, mattered politically. And it was unconscionable that a man could change his national loyalties. Hence the fear, particularly in North America and Europe, that immigrants and their offspring, especially males, constituted a potentially disloyal fifth column.
In 1880, Allick Asam, an Indian who had been living in Yokohama's Foreign Settlement for 16 years, was the first foreigner to become Japanese as an adopted husband adopted son-in-law. An Australian, Henry Black, better known in Japan as the storyteller Kairakutei Burakku, became Japanese through marriage in 1893. Lafcadio Hearn married Koizumi Setsu in 1891, renounced his British nationality in 1895, and was adopted into the Koizumi register as Koizumi Yakumo (小泉八雲 "Yakumo" (八雲) is "Haun" in Sino-Japanese) in 1896.
First allegiance changes under Meiji lawWhile "kika" as a legal process called "naturalization" was not provisioned until the 1899 Nationality Law, the Japanese government permitted some individuals and families of various nationalities of foreigners on Ogasawara, some Chinese in Hokkaidō and Nagasaki, and some Chinese on the Liaotung peninsula, to change their allegiance to Japan [kika]. See Becoming Japanese in the Meiji period: Adopted sons, incoming husbands, and naturalization for a closer look at the legal and political implications of such specially deliberated changes of status. |
First marriages under 1873 proclamationWhile Allick Asam appears to have been the first foreign male to become Japanese through marriage after 1873, in his case as an adopted son-in-law (婿養子 mukoyōshi), the first to become Japanese as an incoming husband (入夫 nyūfu) was Kashimu Wisuramu (romanization of カシム ウィスラム, which may be a kanaization of Kassim Wisram), in 1881. Wisuramu, like Asam, was a British subject from India residing in Yokohama's Foreign Settlement. In 1880, a Chinese man in Nagasaki was permitted to change his allegiance, partly on grounds that he had married a Japanese woman before the 1873 proclamation. See Becoming Japanese in the Meiji period: Adopted sons, incoming husbands, and naturalization for a more detailed discussion of intermarriage and the acquisition of Japanese status by foreigners during the first three decades of the Meiji period. See International marriages, 1873-1899: Statistics based on Koyama Noboru's 1995 study for my analysis of Koyama's data on alliances under the 1873 proclamation. |
1.6 1899 Nationality Law
Article 18 of the 1889 1890 Constitution stated that the requisites (要件 yōken) for being a Japanese subject (日本臣民 Nihon shinmin) shall be determined by law (法律 hōritsu). These requisites were set down in Japan's first Civil Code, which was promulgated in 1890 but never enacted. A revised Civil Code was enacted in 1896 and augmented in 1898, but without the articles on nationality. The detached articles became the nucleus of a free-standing Nationality Law enforced from 1899.
The 1899 Nationality Law, modeled on French law, adopted the patrilineal jus sanguinis (right of blood) kinship standard for children born to married parents, which meant that the children of a married Japanese man would be Japanese regardless of their mother's nationality. The law was matrilineal for children born to unmarried Japanese women regardless of their father's nationality, and it was jus soli (right of soil) for children of stateless or unknown parents. The law provided that a Japanese woman who married a foreign man would lose her Japanese nationality should she gain his nationality, and that a foreign women would become Japanese when she married a Japanese man.
In all these respects, Japan's new law was a state-of-the-art statute that looked very much like the majority of nationality laws in the world at the time. Japan's adoption of such a mainstream law reflected the fact that Japan was unexceptional as a society. Like practically all other countries in the world, Japan was largely patriarchal. And the laws that governed family status within Japan were not unlike the laws most countries used to govern nationality within the family of nations.
After the French Revolution in the late 18th century, kinship within a nation replaced the feudal domain as the cause for affiliation with a territorial polity, with allegiance to a state instead of a liege lord. Only in British commonwealth states, and in the Americas as a result of the dominance of British law in colonies that went on to become independent states, was territory retained as the primary cause for a person's affiliation with the nation. Yet right-of-soil states continued to be as patriarchal as right-of-blood states. And regardless of how a state accorded its nationality at birth, democracy developed as a male, more than female, reserve. Hence the global logic that nationality, even when based on soil, was essentially a male domain, something a woman derived through her father then husband.
Japan's 1899 law also allowed a foreigner to become Japanese when adopted or when recognized by its Japanese father or mother. Also reflecting the 1873 proclamation, a foreign man could become Japanese by marrying a female head of household. Such provisions were intended to make the Nationality Law compatible with the standards of the corporate family defined by the Family Registration Law and the Civil Code. Finally, too, it became possible to become Japanese through naturalization. And unlike naturalization in the United States at the time, race was not an issue.
"jus soli" and "jus sanguinis"There is considerable misunderstanding about the meanings of "jus soli" (right of soil) and "jus sanguinis" (right of blood). The former is actually the older and more "feudal" principle. The latter emerged as an effort to break the territorial bonds of "subjects" and "sovereigns" by defining affiliation in terms of parental or family bonds. See jus soli and jus sanguinis for further details. |
1.7 Initial determination
There was never a formal definition of who in Japan should constitute the nation to which Japan's first nationality law would apply. It was simply assumed that all people who were members of a family register in Japan, prior to 1 April 1899 when the new law came into effect, were legally regarded as native (natural) Japanese for purposes of administering the law.
This is quaintly significant because, unlike the 1950 and later nationality laws in Japan, the 1899 law did not permit anyone who had become Japanese through naturalization, child adoption, or husband adoption to hold a high government or military post. However, Koizumi Yakumo and others who had become Japanese under the 1873 proclamation -- i.e., before the de facto initial determination in 1899 -- were native Japanese in the eyes of the law. So Kairakutei Burakku, a very popular bilingual entertainer, could have been a prime minister had he not preferred to make people laugh on a different stage.
2. Nationalization
2.1 The sovereign empire
By the 1930s, when Japan began to expand its control of the Republic of China, the Japanese empire consisted of two parts: a sovereign national empire comprised of four subnational territories, and some non-sovereign territories in China and the South Pacific. The sovereign empire consisted of one interior Interior (内地 naichi) subnation (the prefectures) and three exterior (外地 gaichi) subnations (Taiwan, Karafuto, Korea Chōsen). The prefectural polities of the As parts of the emperor's sovereign dominion, interior Interior were under the jurisdiction of Diet-enacted statutes, while the exterior polities were outside the automatic reach of such lawsinterior Interior and exterior polities were constitutionally subject to laws passed by the Imperial Diet and promulgated by the Emperor. However, the exterior subnations were beyond the automatic reach of the body of laws intended for the prefectural subnation.
Legislative powersThe 1890 Constitution gave the Emperor the right to rule the Empire of Japan in accordance with the constitution, which gave the Emperor the power to sanction and promulgate laws that had received the consent of the Imperial Diet. In practice, the Imperial Diet passed laws and the Emperor enacted them. In 1896, the year after China ceded Taiwan to Japan, the Imperial Diet conditionally delegated its legislative powers to the Governnor-General of Taiwan. The Taiwan Governor-General was thereby able to formulate laws and have them promulgated by the Emperor, with the mediation of only the Prime Minister. This, in effect, established Taiwan as a territorial subnation with the empire, alongside the prefectural subnation. When Karafuto was ceded to Japan in 1905, it was also treated as a territorial subnation. However, Karafuto had previously been under Japanese control, and its tranfer did not entail the complex problems (including rebellion) that the governor of Taiwan had to face. Hence the Governor of Karafuto was never given the sort of authority granted the Governor-General of Taiwan. Korea had been a protectorate of Japan for nearly five years when it ceded itself to Japan and became Chōsen in 1910. For this reason, among others, the Governor-General of Chosen was granted an even broader mandate of authority than his counterpart in Taiwan. See Subnationality and integration: The merging of exterior polities into the |
The interior nation did not exist in 1868. Japan did not exist as a "nation" in 1868. Nor did it spontaneously form. It had to be forged, with ample use of political hammers and anvils, the tools of nationbuilders the world over. The Meiji rulers first saddled and bridled the distant domains that had been loosely tethered to the Tokugawa shogunate, then corralled a number of remote island groups regarded as inherent to Japan's natural territory. Such actions occasioned unrest and armed rebellion within some domains, and diplomatic conflicts with countries that also claimed some of the remote islands.
NationI am using the term "nation" here to refer to a population of people who strongly identify with a "national" body than with a "local" one. Think of Socrates declaring that he was a citizen of the world, not a Greek or an Athenian, or Thomas Jefferson announcing that he was not a Virginian but an American. It took a few years to instill in a significant number of people affiliated with the new and still merging domain-like prefectures that they were "Japanese" before they were denizens of their villages, towns, cities, or provinces. Think of the situation in which Socrates is supposed to have declared that he was a citizen of the world, not a Greek or an Athenian, or in which Thomas Jefferson is said to have announced that he was not a Virginian but an American. I would argue that Japan's population reached a "critical mass" or "tipping point" from which it can be said to have become a "nation" sometime after the Seinan War in 1877 and before the innaguration of the Meiji Constitution and the first convening of National Diet in 1890. Perhaps the formation of the first National Cabinet in 1885 would be a useful benchmark in terms of domestic politics. Internationally, Japan was clearly a "nation" by the time it engaged and defeated China in the Sino-Japanese war of 1894-1895. And by 1899 -- when extraterritoriality ended in Japan -- its population was unquestionally a "national" population which, by then, consisted of two distinct subnational territories and legal jurisdictions -- one the prefectural Interior, the other Taiwan, which Japan had acquired from China as part of the postwar settlement. |
InteriorShortly before and well into the Meiji period, the term "Interior" (内地 Naichi) was used to refer to parts of Japan that were outside the extraterritorial foreign settlements in treaty ports. The term had previously been used, and continued to be used, and is still used today in reference to the "mainland" domains and provinces, then prefectures of Japan, from the point of view of peripheral, especially insular parts of the country. It had also been used to parts of the country "inland" from its coats. All such uses stemmed from Chinese usage that went back many centuries. However, the term "Interior" was not yet -- in 1868 -- used as a pronoun for the prefectural entity of an empire that did not yet exist. This usage gained currency, and finally legal standing, after the need in 1895 to differentiate the prefectural entity from the newly acquired territory of Taiwan. Next came Karafuto (1905), and finally Korea renamed Chōsen in 1910. This technical use of "Interior" survives in objective historical descriptions of the sovereign Empire of Japan, and in legacy court cases that require accurate descriptions of historical legal conditions and statuses. |
Most Ainu, and all Okinawans and Ogasawarans, became Japanese through relatively peaceful processes. Later, Taiwan and Karafuto were ceded to Japan as concessions in wars with China and Russia. Korea, a stage for both of these wars, was a political basket case by the time Japan pressured its rulers to cede its sovereignty. In the eyes of international law, Japan was legally entitled to extend its sovereignty, hence its subjecthood and nationality, to Korea as Chōsen as well as Taiwan and Karafuto. Strictly speaking, these territories were not colonies but subnational components of the imperial Japanese state, alongside the original nation consisting of the prefectures.
In time, Taiwan, Karafuto, and Korea Chōsen were slated for merger with the interior Interior as prefectures. Merger was to be achieved by gradually extending the laws and customs of the interior Interior subnation to the exterior subnations until the subjects of all four subnations could be ruled under a common polity. Exterior subjects learned to use the Japanese language in their daily life and worship the Emperor as the embodiment of State Shinto. They also had to accommodate the standards of interior Interior family law, which meant that married couples who had customarily kept their different clan surnames had to adopt a common family name, and accept other corporate family practices that violated their sensibilities about clan integrity and incest. The ultimate tools for such assimilation were family registers.
While race was not an element of imperial law, Japan's dream of subnational merger was driven by an ideology of racial homogeneity. Nationalistic writings in Japan leading up to, and during, World War II are full of expressions like "Wareware ichioku no Nipponjin ga tan'itsu no seimeitai o nasu" (我々一億の日本人が単一の生命体を成す We one-hundred million Japanese constitute a single living body). Such phrases were invariably found in the context of terms like "Nippon minzoku" (日本民族 Japanese race) or "Yamato minzoku" (大和民族 Yamato race), which they were meant to define. The belief that the sovereign Japanese empire was, or would be, a nation of one race, one language, one culture, one historical experience, and one destiny was best vented in the ever popular slogan "Ichioku isshin" (一億一心 One-hundred million [imperial subjects with] one heart). More poetically rendered "One-hundred-million hearts beating as one", this jingo envisioned the subjects of all four subnations marching to the same racial drummer.
While imperial Japan thus endeavored to pour its subjects into a common racial mold, race never became an element of nationality. The Nationality Law was used to facilitate nationalization, which paved the way for polity integration and racial assimilation. But the law itself resisted both racialism and racism, in which respect it upheld the highest ideals of civil law.
Ichioku isshinMany writers have argued that the "myth of homogeneity" is a postwar invention, but this is not true. The notion that the complex empire of Japan, compounded as it was of diverse territories and inhabitants, had become a single living body -- a single racioethnic entity -- is a common theme in pre-postwar ethno-nationalistic (racialist) writing in Japan. "Wareware ichioku no Nipponjin ga tan'itsu no seimeitai o nasu" (我々一億の日本人が単一の生命体を成す) -- "We one-hundred million Japanese constitute a single living body" -- is a paraphrase of a description of Japan as a "large living tissue" (大生命組織 dai seimei soshiki) by Tajima Issaku (田島一作) in his 11 February 1942 book, Nihon minzoku no sekai shidō ryoku (日本民族の世界指導力) or "The world leadership of the Nippon race". In this book, as in many others then and now, "minzoku" (民族) is used to mean "nation" in the racioethnic sense of the word. As such, it is commonly "racialized" with biological metaphors -- unlike "kokumin" (国民), which refers to a "national" of a country, or to the country's "nation" as the demographic aggregate of its "nationals" defined as those who possess its raceless civil "nationality" (国籍 kokuseki). See Tajima 1942: "A singular and inseparable living body" two months after Pearl Harbor for a full transcription and translation of his "large living tissue" paragraph, and other reviews of books and articles related to "The semantics of race and racial mixture: The porous boundaries of biological metaphors". |
2.2 Hokkaidō
In the middle of the 19th century, Ainu villages dotted not only present-day Hokkaidō in Japan, but also southern Sakhalin (Saghalien, J. Karafuto) and the entire stretch of the Kurils (Kuriles, J. Chishima) in Russia. By the middle of the 20th century, practically all Ainu on Sakhalin and the Kurils had been relocated to Hokkaido, and by the end of the century most Ainu settlements had been absorbed by the towns and cities built by Honshu migrants and their descendants.
Conflicts between Yamato and non-Yamato peoples in the northern half of Honshu, possibly ancestors of latterday Ainu, go back to at least the first millennium. By the second millennium, Yamato clans had pushed the frontier all the way north, and by the 17th century the Ainu-inhabited islands of Ezo had come under the suzerainty of a Tokugawa-tethered domain but was not itself part of Japan. Ezo was colonized as Hokkaidō territory in 1869, and Hokkaidō Ainu have had family registers from their introduction in 1872. The colony territory became Hakodate, Sapporo, and Nemuro prefectures in 1882, and these prefectures were merged into Hokkaidō prefecture in 1886.
The first Ainu registers were separated from non-Ainu registers. The separate registers were merged as villages, towns, and cities integrated their records. Ainu, like most commoners, did not have family names. But the Family Registration Law required that every family adopt a single family name, to be used in common by everyone in its register. Furthermore, Ainu were pressured to adopt Yamato style family and personal names.
Unlike most indigenous peoples in North America, Ainu were nationalized without recourse to treaties that recognized them as a semi-sovereign nation within the larger nation. In North America, treaties and other negotiated agreements continue to define relations between indigenous American nations and the governments of Canada and the United States. Whereas Ainu have only one nationality, Sioux, for example, have two. While Ainu are Japanese only, Sioux are members of a tribe belonging to a semi-sovereign Sioux nation in addition (arguably prior) to being US or Canadian nationals.
2.3 Okinawa
When Japan became a state in 1868, the Ryūkyū kingdom, occupying islands southwest of present-day Kyūshū, was under the loose suzerainty of a Tokugawa-tethered domain but was not part of Japan. The kingdom was also a tributary state of China, with which it had had an even longer political relationship. Japan annexed Ryūkyū as a domain in 1872, then forced an end to the kingdom and its tributary status with China by making the islands a prefecture, called Okinawa, in 1879.
Okinawa inhabitants, like Ainu, were nationalized as Japanese through family registers. A number of Okinawans emigrated, especially to Hawaii. Like Hokkaidō, Okinawa became an object of migration and settlement as the national government directly involved itself in Okinawan affairs. Today, unlike other prefectures, both Hokkaidō and Okinawa, at opposite poles of Japan's territory, continue to be partly overseen by national agencies and bureaus that keep a tighter rein on the country's most peripheral prefectures.
Okinawa was the site of fierce fighting during the final months of the Pacific War. It was occupied by the United States before Japan's surrender in August 1945. Okinawa ceased being a prefecture of Japan in May 1946, when the United States formally took over the administration of the Ryūkyū group. The Amami group, in the Ryūkyū archipelago but part of Kagoshima prefecture, was returned to Japan in 1953.
Under US administration, Okinawans were virtually stateless, at least while they were outside Japan. They were not "Japanese nationals" (日本国民 Nihon kokumin) but "Ryūkyū residents" (琉球住民 Ryūkyū jūmin), and they were not included in Japan's demographic or vital statistics. Those who traveled outside Okinawa were given transit permits in lieu of passports, and those who visited Japan were treated as Japanese nationals until they left. Since 1972, when Okinawa reverted to Japan, Okinawans have been Japanese.
For a moment in 1945, Yaeyama, in the southernmost island group of the Ryūkyū chain, declared itself a republic. Other Okinawans have dreamt of a semi-sovereign, if not independent, Ryūkyū state. Unlike Ainu, however, there has been no critical mass of opinion among Okinawans in favor of considering themselves so distinct as to seek recognition as a minority race (少数民族 shōsū minzoku), much less as an indigenous people (先住民 senjūmin).
2.4 Ogasawara
Among the numerous smaller islands that Meiji rulers sought to control as part of Japan's inherent territory, some no more than rocks, were the Ogasawara (Bonin in English, Bunin in Japanese) islands, also claimed by Britain, and the still more remote Volcano islands, which included Iwo Jima.
The Ogasawaras, named after Ogasawara Sadayori, who visited the islands in 1593, did not unambiguously become part of Japan until 1875. The islands were known to Spain as early as 1543, but had been visited and were known to a few Japanese as early as the 12th century. The islands were first settled in 1830 by a party of five Europeans and Americans and twenty-five Sandwich (Hawaiian) islanders, who arrived under a British flag with livestock and seed. Some Japanese drifted ashore during the 1840s, and Japan attempted to reclaim and settle parts of the Ogasawaras in the 1860s.
In 1875, Britain recognized the Ogasawaras as part of Japan's dominion, and their indigenous inhabitants acknowledged that they would be affiliated with Japan. The Ministry of Interior established an outpost on the islands in 1876, and in 1880 they were formally attached to Tokyo prefecture. The indigenous inhabitants were nationalized as Japanese in 1882. As many as 64 of the indigenous residents were nationalized as Japanese between 1877 and 1882. However, a 1873 measure prohibiting Ogasawarans from moving their registers to other parts of Japan was not rescinded until 1897.
In 1944, in anticipation of an invasion by US forces, some 6,000 Ogasawarans and their family registers were evacuated to Honshū. The islands were surrendered to the United States in 1945. About 130 descendants of the original inhabitants were allowed to return in 1946. Fewer than half of the other islanders wanted to go back, and those who eventually did return had to wait until the islands reverted to Japan in 1968 as Ogasawara village of Tokyo prefecture. The village now has a population of about 3,000. A 2000 survey of legal problems on the islands alluded to divorces involving residents who had been educated in American schools during the occupation and were unable to freely read and write Japanese.
2.5 Taiwan
In an 1895 treaty, the result of a war between China and Japan that began in Korea, China ceded Taiwan (Formosa) and some associated islands to Japan. The treaty gave Japan the option to nationalize all inhabitants of Taiwan who remained on the islands after two years. It was assumed, rather than stated, that Taiwan's inhabitants would become Japanese subjects when the treaty was ratified later the same year. Presumably those who emigrated before then, and within the two-year grace period, would automatically lose their virtual or actual Japanese nationality -- there being, at the time, no nationality law, and no formal procedure for renunciation.
Family registers were introduced in Taiwan from 1896, and Taiwanese formally became Japanese nationals when the 1899 Nationality Law was applied to Taiwan in 1905 by 1897 practically all inhabitants of Taiwan were being treated as Japanese subjects and nationals as a consequence of provisions in the Treaty of Shimonoseki of 1895. Within three months of its enforcement in the prefectures in 1899, the Nationality Law was extended to Taiwan, from which time Taiwanese were subject to its provisions.
Extension of Nationality Law to TaiwanJapan's Nationality Law is not the sort of law that declares a population to be Japan's nationals. It consists merely of rules for determining which individuals -- according to their personal, especially family circumstances -- stand to acquire or lose Japan's nationality. The 1899 Nationality Law was enforced in the Interior on the assumption that prefectural family registers defined those who were already Japanese nationals. The extension of the Nationality Law to Taiwan was similarly spirited. It was applied on the assumption that people in Taiwan's population registers were already Japanese nationals, as an effect of the 1895 Shimonoseki Treaty. |
Taiwanese family registers, though, were legally affiliated with Taiwan. People with registers in the interior Interior could settle in Taiwan, and while their residence record would change, their domicile register remained in a prefecture. Taiwanese, too, could migrate to the interior Interior and officially reside there, but their domicile register would continue to be affiliated with a locality in Taiwan.
Taiwan was first populated a few millennia ago by oceanic and continental peoples. In more recent centuries it became a colonial football and refuge for Chinese bandits and generals fleeing the mainland. When Japan took possession, there was a frontier between the indigenous tribes and inhabitants of mainly Chinese and mixed descents. These circumstances were well-known to Japan, which in 1874 had sent an expedition to punish and civilize a southern tribe that had killed over 50 shipwrecked Ryukyuan fishermen in 1871.
The Republic of China (ROC), founded on the mainland in 1911 1912, formally received control of Taiwan and related islands in October 1945, two months after Japan's surrender ended World War II. In 1949, remnants of the nationalist ROC government fled to Taiwan, having lost the civil war with the communist revolutionaries who created the People's Republic of China (PRC). At the time, both ROC and PRC claimed to be the sole legitimate government of all Chinese provinces. In alignment with the United States, however, Japan recognized only ROC.
Japan signed a peace treaty with ROC in 1952, shortly after Taipei on 28 April 1952, the day the San Francisco Peace Treaty came into force. The Taipei treaty with ROC, enforced from 5 August, confirmed, in effect, that all Taiwanese had lost their Japanese nationality and become ROC nationals on the day the San Francisco treaty began to operate. This included all Taiwanese who were in Japan at the end of the war and stayed, and their postwar Japan-born offspring. recognized that ROC law would determine the nationality of all inhabitants and former inhabitants of Taiwan and the Pescadores, which in effect confirmed that Taiwanese in Japan were ROC nationals.
But not all ROC nationals in Japan were former Taiwanese imperial subjects or their descendants. Many ROC nationals had migrated to the prefectures from ROC provinces. Most of these people had no ancestral or other connections with Taiwan, yet they remained ROC nationals after ROC was reduced to an offshore state. Though most were pro-nationalists, Japan recognized only ROC, so no provisions could be made for pro-communists to become PRC nationals ROC nationals in Japan who wanted to be PRC nationals were at the time unable to change their nationality.
Click on images to enlargeYosha Bunko scans |
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1994 re-entry-cum-transit permit issued by Japan
to de jure or de facto stateless aliens in Japan
who had permanent to other rights of abode,
mostly Chosenese and ROC nationals
The United States recognized PRC in February 1972, and Japan followed suit in September. ROC severed its diplomatic ties with Japan when Japan declared its 1952 treaty with ROC no longer valid. While Japan and ROC continue to maintain economic ties, Japan no longer recognizes ROC as a state, and this affects its treatment of ROC passports and nationality.
While ROC continues to issue passports to its nationals, ROC nationals cannot enter or exit Japan on the strength of their passports alone. Those who are domiciled in Japan leave and return to Japan using transit permits and other documents that confirm their identity, residence status, and right of reentry. Those domiciled outside Japan need to obtain a transit permit that serves as a passport and visa.
PRC assumed China's seat on the United Nations, in place of ROC, from 25 October 1971, with US approval and the nod of most UN members. On 28 February 1972, the US and PRC exchanged a communique in Shanghai, which committed the two states to normalization.
While the US did not formally shift its recognition to PRC until 1 January 1979, the 1972 Shanghai communique amounted to virtual recognition. This encourged other states which recognized ROC to switch their to PRC, and Japan did so on 29 September 1972. ROC severed its diplomatic ties with Japan when Japan declared its 1952 treaty with ROC no longer valid.
Despite the change in their political relationship, Japan and ROC have maintained close economic and other ties. The fact that Japan no longer recognizes ROC as a state, however, has affected its treatment of ROC passports and nationality.
For several years after Japan's switch of recognition to PRC, ROC nationals could not enter Japan on the strength of their passports alone but also needed transit permits, as though they were stateless. ROC nationals domiciled in Japan, like stateless residents of Japan, also had to obtain transit permits and other documents before traveling abroad, to confirm their identity, residence status, and right to reenter Japan as legally domiciled aliens.
Such transit permits are no longer required, as Japan now treats ROC passports as though they were issued by an SAR of PRC. Hong Kong and Macao issue their own passports as parts of PRC with putatively separate legal systems.
Japanese who naturalized in ROC before the day Japan recognized PRC have been allowed to renounce their Japanese nationality. Those who naturalized on or after this day, however, have not been allowed to renounce. From Japan's point of view, ROC nationality no longer exists, so renunciation would result in statelessness.
Japanese who had reason to naturalize in PRC before the day Japan changed its recognition effectively lost their Japanese nationality retroactive to this date. A Japanese man who had stayed in China at the end of the war married a PRC woman in 1959 and naturalized in 1965. The couple had three sons in 1962, 1964, and 1976. The couple then came to Japan, and in 1978 a Japanese court ruled that the first two sons, but not the third, could be recognized as Japanese nationals.
The "retrocession" of Taiwan to ChinaThe status of Taiwan as a part of "China" (ROC and/or PRC) cannot be understood without taking into full account the manner in which Taiwan was separated from Japan after World War II. What I once called the "retrocession" of Taiwan to China was not in fact a territorial cession -- at least not of the kind in which one state cedes part or all of itself to another state. Rather it was a transfer of territory from one state (Japan) to another (ROC) enforced by the terms of an agreement (Instrument of Surrender) between Japan and a third party (Allied Powers). That ROC was a member of the Allied Powers had no bearing on the legality of the separation of Taiwan from Japan pursuant to the terms of surrender. Taiwan was ceded to Japan by China under Qing dynasty rule in 1895, and ROC succeeded the Qing government in 1912. Since Japan recognized ROC as the government of China when ROC received Japan's surrender in Taipei in 1945, ROC stood to be named as the successor state in subsequent peace treaties. By 1949, however, the People's Republic of China also claimed to be the legitimate government of China, and in fact it controlled all of China except Taiwan, and islands associated with Taiwan and a few islands belonging to a mainland province. Hence neither the San Fransico treaty concluded between Japan and most Allied states in 1951, without the participation of either ROC or PRC, nor the Taipei treaty concluded between Japan and ROC in 1952, specified the name of the successor state, essentially leaving Taiwan to the government with effective control and jurisdiction. On "retrocession"The term "retrocession" is not warranted in the case of the territorial reconfigurations of Japan after World War II. Japan did not itself have the power to retrocede any parts of its sovereign territory, whether to China, Korea, or the Soviet Union. The territories that became part of the Republic of China, the two Korean states established in Korea, and the Soviet Union, were separated from Japan by the Allied Powers under the terms of surrender, and Japan had no standing in the determination of which foreign entities would eventually fly their flags over these territories. See Japanese nationality after World War II and Separation and choice and related articles for overviews of the legal foundations of nationality settlements after World War II. |
Hong Kong and MacaoA 1984 agreement with the United Kingdom, and a 1987 agreement with Portugal, resulted in the return of Hong Kong and the New Territories in 1997, and Macao in 1999. Both entities are legally Special Administrative Regions (SAR, 特別行政區) as allowed by Article 31 of PRC's 1982 constitution. As SARs, Hong Kong and Macao are governed under a framework of both PRC and local laws. Though not entirely under PRC laws, they do not qualify as international entities because they are diplomatically and militarily represented and defended by PRC as part of its state. People with rights of abode in Hong Kong and Macao are PRC nationals, and as such they are accorded full consular protection by overseas PRC missions. Hong Kong and Macao are under PRC's nationality law, and administer nationality matters, including naturalization and loss of nationality. Both Hong Kong and Macao issue their own passports as non-state entities to PRC nationals who have rights of abobe by virtue of having been (1) born in the SAR, (2) born anywhere to a parent with rights of abode in the SAR, or (3) a resident in the SAR for seven or more continuous years. Outside PRC, holders of Hong Kong and Macao passports can renew their SAR passports at PRC consulates. See PRC Nationality Law for details on PRC's 1980 Nationality Law. |
2.6 Karafuto
By the middle of the 19th century, both Russia and Japan had outposts on the southern half of Sakhalin and the Northern Kurils, while Japan alone occupied the Southern Kurils. In 1875, the two countries signed a treaty that gave Russia all of Sakhalin and Japan all of the Kurils. The treaty allowed Russians on the Kurils to remain Russian and Japanese on Sakhalin to remain Japanese. However, Japan had already begun to nationalize Sakhalin Ainu before this treaty.
Sakhalin and the Kurils were partly inhabited by Ainu and other native peoples. Sakhalin Ainu were concentrated on the southern half of Sakhalin, where they had contact with Uilta (Orok), Nivkh (Gilyak), and others. Before the arrival of Russians, commerce with Sakhalin Ainu had been loosely mediated by Chinese or "Karahito" (whence the name "Karafuto") (See following box). But Sakhalin Ainu were most closely tied with Hokkaidō Ainu, hence Japan's view that the southern half of Sakhalin was part of its inherent dominion.
Etymology of "Karafuto"The linguistic origins of "karafuto" are anything but clear. The use of characters to represent the elements of personal and place names should always be viewed with skepticism. Even when the characters would appear to make sense, the original meanings of the underlying elements need to be explained linguistically rather than graphically. In other words, writing should never be confused for language. Linguistically, one has to assume that the word "karafuto" existed before any characters were used to represent it in writing. On the surface, 樺太 would read, in standard Japanese today, "kabafuto" (樺太) -- "kaba" (or "kanba") being a kind of birch (cf. "white birch" 白樺 shirakaba), and "futo" (usually "buto") meaning "thick" or "large". The place name has also been written 唐太, which on the surface would read "karafuto" or "karabuto" -- "kara" meaning "China". See box appended to Karafuto: The road to prefecturehood for several theories about the meaning of "karafuto" -- including two conflicting Ainu theories. |
In 1873, Japan set up family registers for Sakhalin Ainu, which was tantamount to claiming that they and their homelands were part of Japan. The 1875 treaty recognized the relationship between Sakhalin Ainu and Japan by giving them a three year period within which to relocate to Japan or be nationalized by Russia. As a result, many Sakhalin Ainu moved to Hokkaidō, and those who did became Japanese, while those who remained on Sakhalin became Russians.
Japan had a similar option to nationalize Northern Kuril Ainu and other native peoples who did not emigrate to Russian territory within three years. All Aleuts in the Northern Kurils moved to the Kamchatka peninsula or the Komandorskii islands. A few Northern Kuril Ainu also moved to Kamchatka. Those who stayed were relocated to the Southern Kurils. In time, they and most Southern Kuril Ainu were relocated to Hokkaidō and became Japanese.
In 1905, after losing a war with Japan over territory in China, Russia ceded the southern half of Sakhalin, which Japan nationalized as Karafuto. The treaty allowed Russians who stayed in Karafuto to remain Russians. There was no compulsory emigration. Nor were there any provisions for the Japanization of Russified Sakhalin Ainu and other native inhabitants.
Many of the Sakhalin Ainu who had relocated to Hokkaidō after the 1875 treaty returned to Karafuto, but as Japanese, since their family registers had become affiliated with Hokkaido. The Sakhalin Ainu who had stayed were registered as former natives (旧土人 kyū-dojin), as Hokkaido Ainu had come to be called. The 1914 Family Registration Law and the 1899 Nationality Law were applied to Karafuto in 1924. In 1926, Uilta, Nivkh, and other non-Ainu natives were listed on population rolls as indigenous peoples, and because these rolls were virtually family registers, the people on them were treated as Karafuto subnationals.
Russified Sakhalin Ainu were finally registered as Japanese with Karafuto subnationality in 1933. Unlike Taiwanese and Korean Chosenese subnationals, and unlike Uilta and Nivkh, Ainu with Karafuto subnationality were allowed to move their registers to the interior Interior if they resettled there. In other ways, too, Karafuto was groomed for integration with the interior Interior ahead of Taiwan and Korea Chōsen, and from 1943 it was put ahead of Hokkaido at the top of the north-south ordered list of prefectures. Seventy years had passed since 1873, when Japan enrolled Sakhalin Ainu in its first exterior registers.
The Union of Soviet Socialist Republics, as Russia had become, joined the war against Japan in August 1945. Soviet troops invaded and occupied Karafuto, by then Japan's 48th prefecture, and the Kurils, which had been part of Hokkaidō. The 1952 Peace Treaty, which the USSR declined to sign, ceded Karafuto and, on the face of the wording, all of the Kurils. Later Japan claimed that it did not intend to give up the four islands closest to Hokkaidō. But Russia, which now possesses the Kurils, shows no inclination to return the Southern Kuriles, which Japan calls its "northern territories" (北方領土 hoppō ryōdo).
Practically all Sakhalin Ainu, preferring Japanese to Soviet rule, repatriated or relocated to Hokkaidō after the war. Uilta and Nivkh had to stay in Sakhalin because their population registers affiliated them with a territory that was no longer part of Japan. The many Korean Chosenese subnationals who had migrated to Sakhalin also had to stay because the USSR did not allow them to return to Korea. Uilta and Nivkh men who had fought on Japan's side were imprisoned in Siberian labor camps along with other Japanese POWs. In the late 1950s and early 1960s, some of the Uilta and Nivkh who had survived the camps were allowed to settle in Japan as a result of Japanese court decisions that recognized them as Japanese.
PrefecturehoodKarafuto's status as a "prefecture" is not without controversy. It was in treatment if not by name. Whether Taiwan or Chōsen would have followed Karafuto into the See Subnationality and integration: The merging of exterior polities into the |
2.7 Korea as Chōsen
By 1905, after decades of involvement in domestic and regional intrigue and conflict, Korea had come under Japan's political spell. During the Russo-Japanese war, Korea became a protectorate of Japan, and immediately after the war Japan became a proxy for Korea's foreign affairs. A series of other agreements led to a 1910 treaty in which the Emperor of Korea ceded his sovereignty to the Emperor of Japan, at which point "Korea" (韓国 Kankoku) became Chosen (朝鮮 Chōsen) and "Koreans" (韓人 Kanjin) became Chosenese (朝鮮人 Chōsenjin).
Like Taiwan and Karafuto, Korea Chōsen became a candidate for eventual integration with the interior Interior. Though Japan never formally applied its nationality law to Korea Chōsen, its inhabitants were treated as Japanese nationals. They were able to reside elsewhere in the empire, but as long as their family registers remained on they remained in family registers affiliated with the peninsula, they were Japanese of Korean Chosenese subnationality.
Japanese nationality in ChōsenUnlike Taiwan, which was ceded to Japan by a state that continued to exist, Korea ceded itself to Japan, in toto. Korea's demographic nation came with its geographic territory. And when the territory was incorporated into Japan's sovereign territory, the nation logically became part of Japan's subjecthood and nationality. Which meant that Koreans, as Chosenese, became Japanese. Korea did not have a nationality law, but nonetheless its subjects were understood be people affiliated with the peninsula, mainly by lineage, and most by then recorded in Korea's population registers. The basic registration law, then in operation, was one introduced under Japan's supervision in 1909. Koreans could not possibly have remained nationals of Korea, for Korea no longer existed. They could only have been territorial affiliates of Chōsen as a part of Japan's sovereign dominion. And all people affiliated with Japan's sovereign territories were subjects and nationals of Japan, hence Japanese. Extending the Nationality Law to Chōsen would not, in any case, have mattered in this regard, for the law lacked provisions for declaring that an existing population would gain or lose Japanese nationality. Even the 1950 Nationality Law provides only rules under which individuals stand to gain or lose nationality according to personal, especially family, circumstances. |
Japan lost its legal authority to govern Korea as Chōsen the moment it surrendered in 1945. Unlike Taiwan, however, there was no Korean state to take possession of the country former Chōsen. The Soviet Union had entered the war and, by prior agreement, occupied the peninsula north of the 38th parallel, while the United States occupied the south. Millions of Koreans (Chosenese), in other parts of the former Japanese empire, began to make their way back to the peninsula. Many were unable to return. Others did not want to.
There were about two million Koreans (Chosenese) in the prefectures at the end of the war. Over half had come to the interior Interior on their own volition before 1940. They came for many reasons, from economic displacement caused by harsh policies on the peninsula, to desire and opportunity to study at interior Interior schools. About 800,000 had been brought as recruited or impressed laborers during the war.
Most of the wartime laborers returned to Korea after the war. Most of the 650,000 who stayed were those who had settled or were born in the interior Interior. One survey showed that as many as 500,000 of these Koreans (Chosenese) might have relocated to the peninsula had conditions there not been so much worse than in Japan.
In 1948, the US-backed Korean nationalists in the south founded the Republic of Korea (ROK), and the USSR-supported communists in the north created the People's Democratic People's Republic of Korea (DPRK). Both states claimed the same territory and population. Japan, aligned with the United States, materially aided America's defense of ROK during the Korean War and signed a normalization treaty with ROK in 1965. Japan has not recognized DPRK as a state, and hence does not acknowledge its nationality.
All former exterior subjects lost their Japanese nationality, de facto in 1945 and de jure in 1952. Those who were in the prefectures at the end of the war and stayed, and their postwar Japan-born descendants, have had the right to permanently reside in Japan. Stayers and descendants who have become ROK nationals are treated as aliens with ROK nationality, albeit their legal status in both Japan and ROK is somewhat different than that of ROK Koreans who have taken up residence in Japan after the war. Stayers and descendants who have chosen not to become ROK nationals are treated as stateless aliens, but in government statistics they are still classified as "Chōsenjin" (Chosenese, as Koreans were called before and during Japanese rule) and are lumped together with "Kankokujin" (ROK nationals).
Non-ROK Koreans in Japan are not necessarily pro-DPRK or anti-ROK. The same could be said for ROK Koreans in Japan. A few non-ROK Koreans have obtained passports or other documents certifying that they are DPRK nationals, but Japan does not recognize such claims. Some Japanese, too, have obtained DPRK nationality, but Japan has not allowed them to renounce their Japanese nationality. Like ROC Chinese in Japan, non-ROK Koreans (Chōsenjin) who want to travel abroad have to obtain a transmit permit. DPRK nationals who enter Japan legally typically use transit permits obtained at a Japanese consulate in a third country, usually PRC.
The nationality of Taiwanese and Koreans (Chosenese) who remained in Japan after the war was at the mercy of international politics. Japan's loss of sovereignty over Taiwan and Korea was unconditional. By aligning itself with ROC and ROK, Japan recognized their right to claim as nationals everyone domiciled in they considered affiliated with their claimed sovereign national territories. This included everyone in Japan whose registers were affiliated with ROC (which also claimed the mainland) and ROK (which also claimed the north). When signing treaties with Japan, neither state demurred at the absence of a provision for their Japan-resident nationals to choose to be Japanese.
In most of its dealings with other states, Japan has played its legal cards close to the chest. It has rarely acted without considering its options under international laws law. Since 1945, Japan has been careful not to trespass on the rights of other states to determine the parameters of their nationality. Such diplomatic caution, as much as its own legal conservatism, has inspired Japan to require postwar stayers and their alien descendants to naturalize if they wish to be Japanese. If Japan ever allows such aliens be become Japanese without naturalizing, it will be with PRC's and ROK's diplomatic approval. Legally, Japan has the same right as other states to determine who it wishes to recognize as its nationals.
Postwar alienation and applicable lawLegal status, defined by both nationality and territorial affiliation within nationality, in addition to aspects of status such as gender or family relationship, are taken into account when determining which entity's laws apply to an individual in a given jurisdiction. Changes of national affiliation, which is usually a matter of territorial affiliation, including partial or full alienation from nationality as a result of territorial settlement, continue to affect determinations of applicable law in Japan over half a century after Taiwan and Chōsen were separated from Japan's sovereign territory following World War II. AlienationDuring the Occupation of Japan from 1945 to 1952, Taiwanese and Chosenese were partly alienated under a dual status system. Under Japanese law they remained Japanese as a matter of nationality status and treatment. Under rules introduced by the Supreme Commander for the Allied Powers (SCAP), they were "non-Japanese" for purposes of repatriation. The semi-alienation of Taiwanese and Chosenese was reflected also in Japanese laws, for example in (1) the 17 December 1945 revision of the House of Representatives Members Election Law, which limited of rights of suffrage to people reached by the Family Register Law, an Interior law, hence people in Taiwan and Chōsen registers no were no longer eligible, and (2) the Alien Registration Order, enforced from 3 May 1947 when the 1947 Constitution came into effect, which stipulated that Chosenese and some Taiwanese, though not categorical aliens, would be treated as "aliens" for the purpose the order. Taiwanese and Chosenese were fully alienated when they were separated from Japanese nationality, on 28 April 1952, concomitant with the confirmation of the separation of Taiwan and Chōsen from Japan's sovereign territory under the provisions of the San Francisco Peace Treaty, reflecting the terms of surrender agreed to on 2 September 1945. See "Japan" and "Japanese", Japanese nationality after World War II, and Laterality and choice for details about legal treatment of Taiwanese, Chosenese, and during and after the Occupation of Japan. Applicable lawWhile Taiwan and Chōsen were parts of Japan and under its control and jurisdiction, Taiwanese and Chosenese were treated under Japanese. Legal actions in family matters were based on territorial laws according the criteria set down in the 1989 Common Laws. This law continued to determine applicable law in family matters involving Taiwanese and Chosenese domiciled in "Japan" as redefined by the Allied Powers after Japan formally surrender on 2 September 1945, and until at least the effectuation of the San Francisco Peace Treaty on 28 April 1952. Fully alienated from Japanese nationality on 28 April 1952, Taiwanese and Chosenese domiciled in Japan became subject to the 1948 revision of the 1898 Rules of Laws governing applicable law in private -- i.e., civil -- matters. The problem arose as to critera for determining their "home country law" as a matter of affiliation, which ordinarily meant nationality. Japan had begun formal talks with the Republic of Korea (ROK) concerning normalization and the status of its nationals in Japan, but Koreans in Japan were not yet recognized as ROK nationals, much less as nationals of the Democratic People's Republic of Korea (DPRK). Their only "nationality" was as affiliates of the former Japanese territory of "Chōsen". "Chosenese" who might wish to be ROK nationals were not recognized as such until ROK and Japan normalized their relationship in 1965. As of this writing, Koreans in Japan who remain Chosenese and consider themselves affiliated with DPRK continue to affiliated only with Chōsen as a matter of legal status, as of course are Chosenese who have remained neutral with regard to identification with ROK and DPRK. Japan informally recognized ROK from 1951 when, under SCAP's direction, the two countries began normalization talks, and has formally recognized ROK since the ratification of a normalization treaty in 1965. Japan has informally recognized DPRK since about 1991 when the two countries began normalization talks. However, only ROK nationals in Japan have a recognized nationality. A few aliens who have entered Japan with DPRK documents are regarded as legally affiliated with DPRK. But Chosenese in Japan -- meaning those who retain the legacy status of affiliation with the former Japanese territory of Chōsen -- a stateless entity -- remain in a legal gray zone regarding their formal state affiliation. Apart from normalization issues between Japan and ROK and DPRK, Japanese courts, when determining which country's law to apply in a given civil matter, have considered a number of factors in addition to formal recognized nationality -- including the wishes and actions of the concerned parties. Many courts have applied DPRK laws in cases involving a Korean party who, in the eyes of the court, feels or acts sufficiently "close" to DPRK to warrant the use of its laws as the party's "home country law". However, both the formal and informal rules for determining applicable law have been changing. And local Japanese family and district courts have differed with respect to the principles and criteria they apply in specific cases. See Status and applicable law for an overview of changing standards for determining governing law. See Cho Kyongje on "Personal law of Koreans in Japan" for a study of cases involving Koreans in Japan from 1954 to 1988. |
2.8 Subnationality
A state's nationality -- i.e., the demographic territory which constitutes its "nation" -- is the aggregate of people directly affiliated with the subnational (regional, local) polities that constitute its larger sovereign dominion. The subnational polities are aggregates of territories and populations within their jurisdictions. Today, Japan's nationality is the aggregate of people in local family registers. The Nationality Law determines who is qualified to be a member of a register, and Japanese nationality derives from the fact that the register is affiliated with a local (municipal, prefectural) polity that in turn is part of Japan's sovereign territory.
Since imperial Japan consisted of four subnations, there were more layers of affiliation between family registers and the nation then than now. Nationality (国籍 kokuseki) was only the outer, most easily shed layer of imperial subjecthood. Next came subnationality (民籍 minseki), then the layers of local affiliation that covered one's naked status (including gender and birth order) within a family register. Legally, imperial subjecthood began with membership in a corporate family, whose register was affiliated with a municipality, then a prefecture or province, then a subnation, and only then the nation. In essence, one was a Korean Chosenese or Taiwanese, or even an Okinawan or Osakan, before one was Japanese.
Since family registers were affiliated with local and subnational polities, movement from one register to another, through marriage or adoption, occasioned changes in local and subnational affiliation. Under Japanese civil law, a Japanese couple is considered married only when recorded as husband and wife in the same family register. One spouse has to move into the family register of the other, and in doing so will assume its family name and territorial affiliations. In imperial Japan, these affiliations included subnations, so moving from a register in one subnation to a register in another caused a change in subnationality.
Patriarchal family laws and customs conspired to genderize subnationality in much the same way that most nationality laws in the world treated nationality as a male reserve: a woman who married a man affiliated with another subnation was expected to join his family. A Korean Chosenese woman who married a Taiwanese man typically entered his register and became Taiwanese. An interior Interior woman who married a Korean Chosenese man usually moved to his register and became Korean Chosenese. A Korean Chosenese man who was adopted by an interior Interior family became a member of its register and hence an interior Interior (prefectural) subject. Subnationality, like nationality, was always a matter of register affiliation, not race.
Since family registers were affiliated with territorial polities, all members of a register shared the legal fate of the territory having jurisdiction over their register. Taiwanese and Koreans (Chosenese) virtually lost their Japanese nationality when Japan unconditionally forfeited its sovereignty over Taiwan and Korea Chōsen in 1945. When Taiwan and Korea Chōsen were denationalized, interior Interior subjects who had become Taiwanese or Koreans Chosenese through marriage or adoption also shed their Japanese nationality and became only Taiwanese or Koreans (Chosenese), whereas Taiwanese and Koreans Chosenese who had become interior Interior subjects continued to be Japanese.
While the interior was formally a single nation postwar Japan returned to being a single-territory nation consisting of the prefectrual Interior, local polities were no different from the lost subnations as far as nationality was concerned. Members of a register affiliated with a given Interior polity were Japanese only so long as the polity was under Japan's legal control and jurisdiction. Japanese nationality -- because it is based on territory -- was suspended (i.e., preserved but dormant) for Okinawans who were living in Okinawa while it was under US administration. All members of an Okinawan register -- whether born, married, or adopted into the register -- shared the same fate. Had Okinawa become a US territory like Guam or even Hawaii at the time, most Okinawans would probably have lost their dormant Japanese nationality and become Americans.
Status of Okinawans under U.S. administrationNationalityPeople with Ryūkyū family registers possessed the nationality of Japan under the residual (latent, dormant) sovereignty (潜在主権 senzai shuken) of Japan. VisasRyūkyū nationals of Japan were unable to obtain Japanese passports, but instead received a Certificate of Immigration (CI) (渡航証明書 Tokō shōmeisho) -- a "Passage (Voyage) certificate" or transit permit certifying the bearers identity -- from USCAR. Transit procedureTravel from Ryūkyū to Japan required a Transit Permit [Tokō shōmeisho] and permission of USCAR (United States Civil Administration of the Ryukyu Islands, 琉球列島米国民政府 Ryūkyū Rettō Beikoku Min Seifu). Travel from Japan to Ryūkyū required a passport and permission of USCAR. Travel from Ryūkyū to the United States required a transit permit and a visa from INS (Immigration and Naturalization Service). Travel from the United States to Ryūkyū required a passport. Migration [ijū]Ryūkyū Japanese were free to migrate to -- i.e., move to and settle in -- Japan. Migration from Japan to Ryūkyū, however, required permission from the High Commissioner (高等弁務官 Kōtō Benmukan) of USCAR. And migration from Ryukyu to the United States required permission from INS in the form of an immigrant visa. Ryūkyū Japanese in the United States were free to return to the Ryukyus. See 1950 Nationality Law for details related to the legal foundations for the treatment of Okinawans after World War II. |
3. Degenderization
3.1 1950 Nationality Law
The definition of Japanese nationality was unaffected by postwar legal reforms, but the meaning of nationality radically changed. Imperial subjects of a sovereign emperor became sovereign citizens of a nation in which the emperor was demoted from a god to a diplomatic head of state without a political portfolio.
The 1947 Constitution decreed that "All of the people (国民 kokumin, lit. "people of the country" or "nationals") are equal under the law, and there shall be no discrimination in political, economic, or social relations because of race (人種 jinshu), creed (信仰 shinkō), sex (性別 seibetsu), social status (社会的身分 shakai-teki mibun), or family origin (門地 monchi)." It also asserted that "With regards to choice of spouse, property rights, inheritance, choice of domicile, divorce, and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."
The Civil Code was heavily revised to give wives, daughters, and younger siblings the same rights as husbands, sons, and older siblings. Sexual discrimination continued to be a feature of only two major laws. The Imperial House Law preserved both the patriarchy and the primogeniture of the old order, and the Nationality Law continued to adopt the principle of patrilineal kinship for the children of married parents.
The 1947 Constitution did not itself define nationality. Like the 1899 1889 1890 Constitution, it provided only that "The conditions necessary for being a Japanese national (日本国民 Nihon kokumin) shall be determined by law" (Article 10). So nationality continued to be a purely legal status that is neither inherited nor otherwise automatically acquired (i.e., acquired by automatic operation of the law upon filing of required notifications), but is confirmed by the state if one meets the conditions the Diet sees fit to decree by law.
Like its predecessor, the 1950 Nationality Law allowed a child to be a Japanese national (Nihon kokumin) (1) when at the time of its birth the father was a Japanese national, (2) or when the father had died prior to its birth but had been a Japanese national at the time of his death, or (3) when the father was unknown or had no nationality and the mother was a Japanese national, or (4) when both parents were unknown or had no nationality and the child was born in Japan.
The 1950 law did away with the older law's provisions for automatic change in nationality (i.e., change in nationality effected by automatic operation of the law pending filing of required documents). Most significantly, women no longer gained or lost nationality through marriage. By then, a growing number of states had given women the right to vote, and with it the right to their own nationality. Japan, like many other states, also uncoupled nationality from the adoption of children and husbands, so that now one became Japanese only at time of birth, through legitimation before age 20, or through naturalization. Japan's Nationality Law was again on a par with global standards such as they were.
The 1950 law remained patrilineal like those of most right-of-blood (kinship) states at the time. The socialist right-of-blood states were the first to adopt an ambilineal rule by which a child became a national if either parent was a national. Japan and most other non-socialist right-of-blood states were hesitant about degenderizing their laws this far, for they feared ambilineality would increase dual nationality.
3.2 1985 Nationality Law
In the wake of the social and political reforms that spread around the globe after World War II, the logic of patrilineal nationality rapidly unraveled. By the 1970s, several international accords, already on stage or in the wings, had endorsed the principle of sexual equality in all matters of law. In Japan, too, genderized nationality quickly found itself on the run.
Japan's patrilineal law came under pressure from several quarters. Domestically, there were social protests and law suits alleging that the patrilineal rule discriminated against Japanese women, particularly those married to non-Japanese. Globally, women's organizations lobbied for the creation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was adopted by the United Nations in December 1979, opened for signing in March 1980, and signed by Japan in July the same year.
In three nationality confirmation cases involving children of Japanese women married to foreign men, the Tokyo District Court and High Court failed to find the patrilineal restriction of the 1950 law unconstitutional. The courts ruled that the Diet was acting within its authority in adopting patrilineality as a means of preventing dual nationality. It was not the role of the courts to tell the Diet how to define nationality. The Diet was free to adopt any principle it saw fit -- patrilineal, matrilineal, bilineal, ambilineal, even place-of-birth. As circumstances changed, there might be reason to revise the law, but that was the Diet's business.
Japan planned to ratify CEDAW within five years, so it had until 1985 to revise the 1950 law. The main role of the court cases was to draw public attention to the gender discrimination in the law, and to dramatize the impact of such discrimination on the legal integrity and rights of mixed-nationality families and their members. In the meantime, the Diet debated how to revise the law, and the committee charged with drafting the revisions favored an ambilineal father or mother rule.
Ambilineality had already become the emerging standard in Europe. In 1974, the German Federal Constitutional Court nullified Germany's Nationality Act after ruling that it was unconstitutional. The 1913 Nationality Act granted German nationality to the legitimate child of a German man married to an alien woman, but not to the child of a German woman married to an alien man. It was amended in 1963 to give German nationality to such a child only if it would be stateless as a result of being unable to acquire its alien father's nationality. Japan's law lacked such a provision.
The main debate in the Japanese Diet centered on the question of dual nationality. As the court decisions had pointed out, this was a legitimate concern, given the predominance of patrilineal laws among some of Japan's closest neighbors, particularly ROC and ROK, many of whose nationals were residing in Japan and marrying Japanese. All but a handful of states in the world were concerned about dual nationality. The United States, too, was still actively trying to minimize dual nationality. It was in this milieu of widely shared concern that the Diet looked dimly on the prospects of an explosion of dual nationality.
In 1984, right on schedule, the Diet passed an ambilineal law that went into effect from January 1985. Like Germany's law, it was made retroactive for twenty years. Those born after 1964, and who met certain other conditions, were allowed three years within which to acquire the equivalent of Japanese nationality at time of birth, simply by submitting a one-page declaration with a few supporting documents and a family photograph to the Minister of Justice. Like Germany's law, its transitional measures provided that persons born within 20 years before the law came into effect had three years within which they could acquire Japanese nationality by making a declaration to the Minister of Justice. It also made provisions for Japanese with other nationalities to declare a choice of nationality within two years after becoming twenty years of age.
Revisions effective from 1985 included a new article, Article 3, which provided for acquisition of nationality through legitimation by children who had also been acknowledged by their Japanese father or mother after birth and before turning 20 years of age. The legitimation condition was ruled unconstitutional by the Supreme Court in 2008. As revised effective from 2009, Article 3 now stipulates only the acknowledgement condition.
The meaning of ambilinealityMost English guides to Japan's Nationality Law state that its right-of-blood principle is now "bilineal". This term is incorrect, because technically it would mean that "both" parents have to be Japanese. The correct term is "ambilineal" -- meaning that one of the parents, namely "either" the mother or father, has to be Japanese. The principle of ambilineality is best understood as being matrilineal for Japanese mothers and patrilineal for Japanese fathers. For children of Japanese couples, meaning that both parents are Japanese, this distinction is moot because, under Japanese law, a marriage between Japanese nationals results in the couple being members of the same family register. The fact that either parent is a member of a register is cause for entering the child in the register, so long as the filing of the birth certificate and possibly other documents is timely. A birth certificate serves only to link a child's parents with their "principal register" [honseki] -- meaning a polity such as a city, town, or village in a prefecture of Japan, or a foreign country. So long as either parent has a principal register in Japan, the child can acquire Japanese nationality by virtue of its lineal relationship to the parent. MatrilinealityA child's lineal relationship with its mother is naturally stronger than it's lineal realtionship with the father, in the sense that a mother has only to give birth to a child to prove maternity -- whereas some fathers have to jump a number of bureaucratic hurdles to prove paternity. Consequently, a mother's relationship with the father -- whether she is married to him, even whether she can identify him -- is never an issue. If it is clear that she is the birth mother, and if she is Japanese, the child can acquire Japanese nationality at time of birth. PatrilinealityIn the case of a Japanese man who is married to the mother, he implicty recognizes any child born to his wife during their marriage. Hence any child born to a foreign wife of a Japanese man, during their marriage, can acquire Japanese nationality at time of its birth because its father is Japanese. If a Japanese man is not married to the mother of his child, regardless of her nationality the child can acquire Japanese nationality at time of birth only if he recognizes the child before its birth or when it is born. A number of nationality confirmation lawsuits have been filed by Japanese fathers who failed to recognize their paternity in a timely manner. Paternity disputesA married Japanese man might deny or dispute the paternity of his wife's child if he thinks he is not the biological father. But if she is Japanese, they will be in the same register, and she will probably be able to register the child as though it were his. If the man's wife is not Japanese, he might elect not to recognize the child by refusing to cooperate in the registration of its birth. A Japanese man can also recognize a child born to a Japanese women who is not his wife. He and the child's mother can arrange to have the child entered in his register, even if he is married to another woman and they have children of their own in the register. This would, of course, require the tacit consent of others in the register, because the parental rights defined by the register are the basis for determining inheritance. CustodyIn cases of divorce, parents must decide who will have legal custody of the children. When married, both parents exercise "parental rights" [shinken]. After divorce, however, only one parent can exercise such rights per child. One of the divorcing parents will leave the common register for another. If there are two childen, both will leave the register with the parent who leaves, or both will stay in the register with the parent who stays. Or one child might leave with the parent who leaves and the other child stay with the parent who stays. Matters of registration and residence are not the same. A child might reside with one parent but be in the register of the other parent, who has parental rights. In practice, though, a divorcing mother will usually obtain parental rights and move her children with herself into a new register. Disputes over parental rights can be nasty if parents can't agree to who should have legal custody of the children. They can become particularly bitter in divorces of Japanese and alien couples, when the children are in the register of the Japanese parent, who has custody under Japanese law, and the alien parent expects to share custody or at least have visitation rights. Family law operates a bit differently in Japan than in, say, the United States. See Sugiyama v. State: Nationality court cases, 1978-1988 for images of birth certificates that figured in two nationality confirmation law suits. The suits involved myself, my ex-wife, and our two children. Here you will find a narrative account of the entire drama, in and out of court, and other personal and familial details. |
3.3 DPRK, PRC, ROK, and ROC laws
Patriarchy has been stronger in China and Korea than in Japan. Without Japan's comparatively progressive family laws, and lacking the socialist pretenses of their communist counterparts, the Republic of China and the Republic of Korea took more time to fully degenderize their nationality.
Neither ROC nor ROK strongly objected to Japan's adoption of an ambilineal law, but some Koreans in Japan openly opposed the revision. Since ROK's law was patrilineal, an ambilineal Japanese law would create dual nationality among the children of Korean men married to Japanese women. Such a law would reduce the official population of Koreans in Japan, for Japan would count all children in a Japanese family register as Japanese. The odds were already better than even that a Korean in Japan would marry a Japanese. But so long as the laws of both ROK and Japan were patrilineal, the children of ROK males would become only ROK nationals. Preserving nationality through the male was especially important for Korean patriarchs who equated nationality with race.
The fear that ambilineality would emasculate Korean nationality and raciality was even stronger in ROK. In 1948, while Japan was in the process of partly degenderizing its 1899 Nationality Law, ROK passed a law that was even more genderized than Japan's 1899 law. Not until 1998 did ROK begin to enforce a new ambilineal law which reflected the revisions Japan had made in 1950 and 1985. Though slower to degenderize its nationality, ROK had signed and ratified CEDAW when Japan did, but with reservations on the very article that would have obliged it to degenderize its laws.
The Democratic People's Republic of Korea degenderized its nationality twenty-two years before Japan, and thirty-five years before its southern sibling. Sometime after its founding in 1948, DPRK began according its nationality through either the father or the mother, and it formally adopted an ambilineal principle in its 1963 Nationality Act. The act defines DPRK nationals as all people who were Koreans before 1948, including those residing in ROK, Japan, and elsewhere overseas, unless they had renounced their Korean nationality before 1963. As of this writing, however, Japan recognizes only ROK, and so does not accept the claims of Koreans in Japan, or Japanese, who wish to be treated as DPRK nationals.
ROK's 1998 law is only slightly less permissive than Japan's 1985 law. Children born to Japanese and ROK couples living in a right-of-soil country like the United States could, in principle, become triple nationals. ROK's law requires those who wish to retain their ROK nationality to lose their foreign nationalities within a year after turning twenty. Japan's law requires those who want to keep their Japanese nationality to declare, within two years of coming of age at twenty, their wish to preserve their Japanese nationality and their intent to endeavor to renunciate their foreign nationalities. The United States now tolerates multiple nationalities.
ROK's stance on multiple nationality is ambivalent. The same year it implemented its new nationality law, ROK deliberated a bill that would have conferred its nationality across the entire "diaspora" of over five-million "overseas Koreans." The People's Republic of China and the Commonwealth of Independent States strongly objected to this plan, for both are opposed to dual nationality in principle, and both have large populations of Korean minorities, most of whom are descendants of people displaced from the peninsula after Japan's annexation of the Korean Empire Empire of Korea. Most of the half-million people of Korean ancestry in CIS are nationals of Russia (including Sakhalin), Kazakhstan, or Uzbekistan. PRC is home to about two-million Chinese it formally recognizes as "national minorities" (C. shao3shu4 min2zu2, J. shōsū minzoku, K. sosu minjok, lit. "minority races") of Korean ancestry.
PRC also became ambilineal before enacting its Nationality Law of 1980, which formally does not recognize dual nationality. In 1955, in response to Indonesia's claim that dual nationality was undermining its goals of national unification, PRC signed a treaty that forced dual Chinese-Indonesian nationals to choose one or the other nationality. Forty years later, in response to ROK's desire to confer its nationality on PRC nationals of Korean ancestry, the same apprehensions moved PRC to remind ROK that it was meddling in its domestic affairs. Then in 2004, PRC was reported to be considering recognizing dual nationality in order to attract overseas talent and investors, most of whom would be of Chinese ancestry.
The Republic of China finally adopted an ambilineal nationality law in 2000, thereby catching up with DPRK, PRC, Japan, and ROK. Its new law, like ROK's 1998 law, no longer grants automatic nationality automatically attributes its nationality to foreign spouses or adoptees. People who do not become ROC or ROK nationals at birth are required to naturalize. ROC, unlike ROK and Japan, does not expressly attempt to singularize dual nationality when acquired naturally or otherwise passively. As in many countries, however, dual nationals are prohibited from holding certain public offices.
ROC, ROK, PRC, and DPRK nationality lawsAs this article is about nationality in Japan, the descriptions of the nationality laws of China and Korea are necessarily brief. The Chinese and Korean laws were introduced in the order in which they adopted an ambilineal principle in place of a patrilineal principle. The ages of the laws are in precisely the opposite order -- i.e., in the chronological order of the founding of the states. In other words, the older the law, the more recently it abandoned patrilineality. Japan's experience has been exceptional in that Japan, though the first East Asian state to have a constitutionally empowered law of nationality, began to degenderize its nationality earlier than its neighbors. It was also the first non-socialist East Asian state to adopt the principle of ambilineality. See the following links for ROC and PRC, and ROK and DPRK nationality laws and fuller discussions. ROC nationality laws from 1912 to 2000: Membership in an increasingly stateless nation PRC's 1980 Nationality Law: A single nationality multiethnic state ROK's 1948 and 1998 nationality laws: Last bastion of Korean patriarchy falls DPRK's Nationality Act: First East Asian law to degenderize nationality |
4. Nationality issues
4.1 Continuing problems
The 1985 Nationality Law degenderized nationality but left a number of issues unresolved. The law still fails to prevent statelessness. Its treatment of dual nationality has caused misunderstanding and anxiety. Naturalization requirements remain too obscure if not too complicated. And the unnecessary linking of nationality and family registers continues to harm the integrity of mixed-nationality families.
4.2 Statelessness
There are two kinds of statelessness. One is absolute or "de jure": a person has no nationality. The other is relative or "de facto": a person has a nationality, but it is not recognized, or his or her child is unable to acquire it. Japan's Nationality Law has always prevented statelessness in the rare case of a child born in Japan to de jure stateless or unknown parents. Unfortunately, the law has never been revised to prevent statelessness in the more common case of a child born in Japan to de facto stateless parents.
One of the court cases that challenged the constitutionality of the 1950 Nationality Law in the late 1970s involved a child who had become stateless because both its parents, who were married to each other, were de facto stateless. The mother was Japanese, but the 1950 law recognized matrilineal acquisition of nationality only if the mother was unmarried, hence the mother was de facto stateless. And the father, though an American, was also de facto stateless.
The father was born de jure stateless in China and raised and educated in Japan. He later naturalized in the United States, but returned to Japan before he had lived in the US long enough for him to qualify as a source of US nationality for a foreign-born child. Had the 1950 law contained a default provision like the one made in the 1963 revision to Germany's law, the child could have become Japanese through its mother. As it was, the child became de jure stateless. The ambilineal 1985 law eliminated this loophole from Japan's side and permitted the child to obtain Japanese nationality retroactively through its mother.
Today, most cases of statelessness in Japan involve the Japan-born children of non-Japanese women, most of whom are from other Asian countries. The mothers are not necessarily single, and the fathers are not necessarily unknown. Some children become stateless through no fault of any state's nationality law, but as a result of their parents not registering them because the parents are illegal aliens and do not wish to expose themselves to authorities. Or a single mother may try to confirm her child's nationality at a consulate of her country of nationality but find that it questions her passport.
Children abandoned by unknown parents, or born to stateless parents, become Japanese by right-of-soil. Just as race does not matter when becoming Japanese through right-of-blood (kinship), it is not a factor in right-of-soil (place of birth) cases. If only one parent is known, and if that parent is a non-stateless alien, and the child is unable to obtain that parent's nationality, the child will be treated as a stateless alien.
Statelessness is a legal status that results from registration as a person with no nationality. Because stateless people are not Japanese, they are classified and treated as aliens. But stateless people affiliated with Japan are de facto permanent residents who are free to travel abroad and return to Japan on the strength of a transit permit. Unlike stateless people, who are formally recognized and have certain legal privileges, some people in Japan, mostly children, have never been registered and hence have no legal standing. Most such people eventually acquire status, as foreign nationals or stateless aliens, or as Japanese.
Registration, or the acquisition of legal status, is essential to formal existence in Japan. Even a child born in Japan to Japanese parents does not automatically acquire status as a Japanese national when born. If the parents fail to register the child's birth in a timely manner, it can end up stateless. The parents of such a child could petition a court to confirm its eligibility for Japanese nationality and permit late registration, but they would have to prove kinship and show cause for their failure to register. Otherwise the child could be registered as a stateless alien. Totally undocumented older children and adults, too, would be registered as stateless unless they were able to prove probable kinship to a Japanese national and gain judicial sympathy for their plight.
Regardless of where it was born, a stateless or other non-Japanese child of a Japanese national, who for various reasons was not registered as Japanese at birth, may be eligible for Japanese nationality through legitimation, if its parents marry and Japanese parent recognizes it before it turns 20. If 20 or older, such a person would have to naturalize to become Japanese.
2009 Nationality Law revisionIn 2008, the Supreme Court ruled unconstitutional the legitimation requirement in the recognition and legitimation provision introduced in the Nationality Law from 1985. The Diet quickly enacted a simple revision, effective from 2009, which struck the legitmation phrase from the law, which since then has required only parental (paternal or maternal) recognition on the part of a Japanese parent of a minor child for the child to acquire Japanese nationality by notification. If not 20 years of age or older, the child must naturalize. See the following article for a full account of the litigation that led to the 2008 Supreme Court judgment. Filipinos v. State, 2003-2008: Legitimacy distinction is unconstitutional. |
1988 and 1995 jus soli rulingsJudgments in nationality confirmation cases involving stateless litigants have been mixed. In 1995, the Supreme Court ruled that a boy whose mother was "known" but not well-enough to confirm her identity -- and whose father was unknown -- qualified for birthright Japanese nationality under the jus soli (right of soil, place of birth) provision in Japan's Nationality Law. The provision applies to children born in Japan when neither parent is known, or when neither parent has a nationality. Rees v. State, 1992-1995: Supreme Court confirms child's jus soli nationality. In 1988, a family court applied the jus soli provision -- intended for application at time of birth -- to the case of a man who was in his 40s when found in a state of amnesia. When the best efforts to identify the man failed, he was declared to be be Japanese on the grounds that his speech and behavior, and everything he could recall, suggested he was born aad had spent his entire life in Japan. Unidentifiable man gets family register: Family court invokes jus soli principle as grounds. |
Nationality laws are not known to extend to the next world, but nationality can be resurrected. In the late 1970s and early 1980s, a number of Japanese were abducted to the Democratic People's Republic of Korea. Soga Hitomi, one of the five who returned to Japan in 2002, petitioned a Sado court to order her name reinstated in her family register. In 1986, the court had allowed her father to declare her missing and presumed dead, along with her mother, who had disappeared with her while they were shopping. As both were legally deceased, the family held a funeral. The mother remains missing.
The other four abductees consisted of two couples who had been dating each other in Japan. DPRK gave them Korean names and married them under DPRK law, which allows spouses to go by their different Korean surnames. The couples then had children, who went by their father's Korean surname. Back in Japan, and using their Japanese names, the couples married under Japanese law, which requires spouses to be in the same family register and share its name. Though the children had remained in DPRK, their births were recorded with Japanese personal names in their parents' family registers. The children were given Japanese passports en route to Japan, where they are now living under their Japanese names.
Japan took the position that the abductees and their children were victims of circumstances that justified mitigation. The children were able to acquire status as Japanese because the delays in registering their births had been beyond their parents' control. The state used its discretionary powers to part its own bureaucratic waters. Had the children's parents gone to DPRK and stayed there on their own accord, and simply ignored Japanese law, the Ministry of Justice would have allowed the children to enter Japan but would probably have treated them as virtual stateless aliens and expected them to naturalize if they wanted to be Japanese.
There are roughly 2,000 registered stateless people in Japan. About 500 have permanent residence, and another 500 have visas that allow them to make their living in Japan. Lawmakers deliberated including a provision in the 1985 law that would give nationality to any child who would become stateless. This idea was rejected on the grounds that it might result in children of temporary stayers becoming Japanese. Instead, naturalization conditions were considerably relaxed for people who were born stateless in Japan.
Posthumous nationalityWhile nationality generally does not extend to the next world, some states have See the following article for examples of how some countries have dealt with movements to confer their nationality posthumously for a variety of reasons -- as well as examples of how some religious organizations use posthumous baptism and conversion to further their interests. Nationality after death: Honor, glory, country, and God in the next world |
4.3 Recognition and legitimation
The 1899 Nationality Law included a provision for aliens to become Japanese through paternal or maternal recognition (認知 ninchi) [acknowledgement] after birth. The formalities for recognition by a Japanese father or mother were specified in family laws. But the provision was dropped from the 1950 law. And the The 1985 law permits permitted nationality through recognition after birth only in conjunction with legitimation. In 2008, however, the Supreme Court ruled the condition of legitimation unconstitutional, and since 2009 only acknowledgement is required.
The Article 3 of the 1985 Nationality Law implies implied, rather than specifies specified, that a child of a Japanese father and a non-Japanese mother can could become Japanese at birth only if the couple are had married under Japanese law before the child's birth -- or if, in accordance with the Family Registration Law, the father recognizes had recognized the child before it is was born (胎児認知 taiji ninchi). There are were no provisions for nationality through retroactive recognition of an illegitimate child, though nationality can could be obtained through legitimation and recognition of a minor child.
A child who was born out of wedlock to a non-Japanese woman can could become Japanese without naturalization if (1) the child is under 20 years of age, (2) one of its parents is Japanese, (3) its parents have married and recognize [acknowledge] the child as theirs, and (4) the recognizing [acknowledging] Japanese parent was Japanese at the time the child was born and is still Japanese (or was Japanese at the time of his or her death after marriage and recognition [acknowledgement]). Otherwise, the child would have to naturalize.
Japan's courts have ruled in numerous cases involving disputes between parents and bureaucrats over the interpretation of the time of recognition. The Article 2 of the Nationality Law simply as revised from 1985 simply states that either parent of a child must be Japanese "at the time of its birth" (出生の時に shussei no toki ni). This is usually taken to mean that marriage or fetal recognition must take place before the child's birth, but more loosely construed it can also be taken to mean that paternal recognition is acceptable at time of birth if not also within the brief period allowed for the filing of the child's birth certificate.
In one case, a girl born in Japan to a Filipino mother who was not married to her daughter's Japanese father requested confirmation of her right to acquire her father's Japanese nationality. The Supreme Court upheld lower court rejections of the request on the grounds that her father had failed to acknowledge his paternity before, or within a reasonable time after, her birth. The girl had acquired her mother's nationality at birth, but this had no bearing on the case. In the meantime, a younger sister, fathered by the same man, was duly registered as his daughter, and thereby became Japanese, because he had recognized her before her birth.
In April 2005, however, the Tokyo District Court ruled that it was unconstitutional not to grant attribute Japanese nationality to the son of a Filipino woman not married to the boy's Japanese father, who continues to live with his Japanese family but participates in his son's upbringing. The boy was born in 1997 and the father did not recognize him until 1999. The court argued that it is unreasonable to base a child's nationality on the legal relationship of its parents, in an age when there are many kinds of families. Whether this judgment will stand in higher courts, and how it will effect the nationality status of other children in like circumstances, remains to be seen. It is at least encouraging that one court has attempted to eliminate another cause of discrimination.
A number of similar lawsuits, brought before the Tokyo District Court with similar results, were challenged by the government in the Tokyo High Court, which found the legitimacy provision to be acceptable within the authority of the legislature to determine the conditions for being a Japanese national. It was up to the Diet to determine otherwise.
On 4 June 2008, however, the Grand Bench of the Supreme Court ruled that the legitimacy condition, while possibly rational when imposed from 1985, was both unconstitutional and out of sync with global trends in nationality law if not more generally family law. The Diet promptly revised Article 3, by simply deleting the phrases that required legitimation.
The revised article came into effect from 1 January 2009. Also effective from this date were several translational measures which allowed persons born as early as 2 January 1983, who had been acknowledged after their birth and before they turned 20 years of age, to acquire Japanese through notification if made by 31 December 2011. The period of retroactive consideration thus embraced the entire period that Article 3 had been in effect, from 1 January 1985 through 31 December 2008 -- though the legitimation condition had virtually ceased to have effect from 5 June 2008, the day after the Supreme Court's ruling.
Acknowledgement and legitimationSee the following articles for fuller details about the Supreme Court's 2008 ruling, the revisions and transitional measures effective from 2009, and continuing acknowledgement and legitimation issues in Japanese family law. Filipinos v. State, 2003-2008: Legitimacy distinction is unconstitutional 2009 Nationality Law revsions: Acknowledgement no longer conditioned by legitimacy Recognition and legitimation: The impact of marriage on parenthood |
4.4 Surrogacy and adoption
A child's mother is usually taken to be the woman who bears it. Determining its father is not as easy. A married woman's husband is usually presumed to be the father of any child she bears, while the father of an unmarried woman's child could be any man willing to recognize the child as his. These conventional rules are wrinkled by all manner of social, medical, and legal complications, including those arising from the advent of fertility alternatives involving everything from artificial insemination to egg, sperm, and embryo donation, and surrogate gestation. Not to mention DNA testing.
Such complications have no impact on place-of-birth nationality, but they can affect the determination of nationality based on kinship. Japan's family statutes do not yet effectively address reproductive technology issues. A government council has advised that Japanese family law, while placing importance on blood kinship, does not regard such kinship as most important, hence its provisions for legitimation through recognition or adoption. The council therefore found no reason not to recognize the legitimacy of parenthood resulting from donated eggs, sperm, and even embryos -- so long as the child in question issues from its registered mother's womb. In drawing the line at surrogacy, the council's concerns were ethical, medical and legal, not genetic.
In the meantime, the government and medical community have agreed to administrative guidelines that allow donation but prohibit surrogacy. And because the guidelines virtually criminalize surrogacy in Japan, some Japanese couples have gone overseas to parent a child through surrogacy. If they fail to persuade a Japanese consulate to register the child as theirs, they will not be able to bring the child back to Japan as a Japanese. Even though California law might decree that they are the child's legal parents, they may have to adopt the child under Japanese law and then naturalize the child, for nationality through adoption ended with the 1950 law. In May 2005, the Osaka High Court rejected an appeal by a Japanese couple claiming that their twin children, born in the United States through an American surrogate mother, should be Japanese, since Japanese law does not recognize surrogate kinship.
Adoption and surrogacySee Adoption and surrogacy: Redefining the ethics of parenthood for a look at how Japanese family law, which governs the Nationality Law, continues to wrestle with definitions of "mother" and "father". |
4.5 Naturalization
The conditions for naturalizing in Japan have always been on a par with those of most other states. Since 1899, one has had to (1) have been domiciled in Japan (one's primary address has been in Japan) for five or more years consecutively, (2) be 20 years of age or older and be legally competent according to the laws of one's own country, (3) be of good conduct, (4) be able to support oneself and one's family, and (5) have no nationality or be able to lose one's nationality when acquiring Japanese nationality. Since 1950, one has also had to (6) be willing to avow that one has never advocated the overthrow of the Japanese Constitution or government.
The 1985 Nationality Law relaxes one or more of the six general conditions for an applicant (1) who is a child of a person who was a Japanese national, or (2) who was born in Japan, or (3) whose father or mother was born in Japan, or (4) who has resided in Japan (one's primary address has been elsewhere) consecutively for ten or more years. The conditions are further relaxed for a spouse of a Japanese national. They are relaxed even more for (1) a child (including an adopted child) of a Japanese national, (2) a former natural (not naturalized) Japanese national, and (3) a person who was born stateless in Japan.
The government has broad discretionary powers when it comes to naturalization. One A provision in the 1985 law specifically allows the Minister of Justice to permit an applicant to retain a foreign nationality and thereby become a dual national evenwhen (1) the applicant is unable to renounce it, and or (2) special considerations are recognized in the applicant's family relationship with a Japanese national or in other circumstances.
Contrary to rumors, naturalization in Japan has been a comparatively uncomplicated, by-the-numbers bureaucratic procedure. Applications are handled by local legal affairs bureaus (homukyoku). The process begins with a personal interview. Most applicants can prepare the necessary documents within a few weeks or months. The total labor involved might come to only a week but be spread out over several months. Once all documents have been filed, one simply waits. The whole process will typically take a year or so from 6 months to a year. Final pPermission to naturalize is granted by at the discretion of the Minister of Justice in general cases, and by permission of the National Diet in special cases. The notice of permission authorizes a municipal government to record the applicant in a family register, at which point the applicant becomes Japanese. Permission to naturalize is announed in the Official Gazette (官報 Kanpō), after which the applicant is issued a Certificate of Permission to Naturalize. The new national's nationality is confirmed by filing, without 1 month, a Notification of Naturalization with a municipal registrar, who creates a family register on the authority of the certificate.
In the past, some applicants have been talked into adopting Yamatoesque names by civil servants who have taken extralegal Ministry of Justice administrative guidelines about post-naturalization names too literally. In fact, no Japanese statute has ever prohibited the adoption of a putatively non-Yamato name, and several family court decisions have permitted the restoration of a Korean, Vietnamese, or other former name the petitioner claimed to have involuntarily lost when naturalizing. Katakana names have also long been acceptable.
However, Koreans and others who seek to naturalize are likely to have had personal, usually family, reasons to legally adopt a Yamatoesque name prior to naturalizing. And they are typically motivated to continue to use this name after becoming Japanese. Those who naturalize into an established family register, as typically happens when the naturalizing alien is married to a Japanese, have no choice but to adopt the family name associated with the register.
Naturalizers are in principle free to choose any name, so long as it consists of a family name followed by a personal name, and is written in standard Japanese script, meaning standard kanji (Sino-Japanese characters) and/or kana (Japanese syllabic script). No law has ever prohibited Chinese, Korean, or other names because of their implicit ethnicity. Standard kanji lists include most kanji that are used in Chinese and Korean surnames and personal names, but the kanji for some common names are not recognized. While any name can be phonologically transliterated into kana, the non-recognition of certain kanji has forced some naturalizing Chinese and Koreans to adopt a new name. Japanese, however, are under the same kanji restrictions when naming their children, or when changing their names through a family court.
Since the 1950 law, there has been no legal distinction been natural and naturalized Japanese, except when nationality is lost, in which case naturalization is somewhat eased for former natural nationals. In the United States, naturalized Americans are constitutionally barred from becoming president, whereas in Japan no laws would prevent a naturalized Japanese from becoming prime minister.
Practically all permanent residents in Japan, and most aliens with non-permanent visas that allow them to make their living in Japan, could naturalize. Most Koreans, Chinese, and others with special permanent residence Most Special Permanent Residents, the vast majority of whom are ROK nationals, would qualify for some degree of simplified naturalization. The government has contemplated revising the Nationality Law to make it even easier for such aliens to become Japanese. There has also been some talk about adopting a provision, now common in European right-of-blood states, that would grant attribute right-of-soil nationality at birth, or at a certain age, to children born in Japan to second-generation alien parents, if not to the Japan-born offspring of first-generation permanent-resident aliens.. Those who think it important to maintain minority nationalities, however, see these as attempts to make Japan seem more homogeneous.
The strongest opposition to unconditional Japanese nationality for Special Permanent Residents, most of whom are Koreans, has come from Koreans has come from Korean SPRs. Some are opposed because they believe that former exterior subjects who stayed in Japan, and their descendants, deserve suffrage and other privileges of citizenship as a matter of course. Others feel that making it too easy for such foreigners to become Japanese would undermine the drive for civil rights for other foreigners. Those who equate nationality with race, and regard becoming Japanese as a racial betrayal, view the idea of offering instant nationality as a ploy to "terminate" the already withering "Korean race" (朝鮮民族 Chōsen minzoku, 韓民族 Kan minzoku)in Japan.
As of this writing, about 400,000 aliens have become Japanese through naturalization, and between 10,000 and 20,000 people are naturalizing annually. There is even a growing industry of paralegal services to assist applicants in collecting the required documents and translating foreign language material into Japanese. Rates vary from 100,000 to one-million yen, depending on complications. Naturalization will increase as more aliens resolve their own ambivalence about race and nationality, and as they discover that the rumors about unusual difficulty and discrimination are mostly exaggerated or false.
Naturalization from 1952-2013As of the end of 2013, some 588,951 people had become Japanese through naturalization since 1952. Only 8,646 naturalized in 2013, sharply down from the 17,633 peak in 2003. |
4.6 Dual nationality
The most significant effect of degenderizing nationality has been to increase the occurrence and acceptance of dual nationality. The first stage of degenderization, as seen in Japan's 1950 law, ended the idea that a woman's nationality should derive from her husband -- but enabling a woman to keep her nationality when marrying a man of a different nationality doomed the principle of one nationality per family. The second stage, as seen in Japan's 1985 law, ended the idea that a child's nationality should derive from its father -- but allowing the children of mixed-nationality parents to acquire both parents' nationalities undermined the principle of one nationality per person.
Cases of mixed-nationality parents with dual-national children were absolutely minimized under Japan's 1899 Nationality Law, operating together with its counterparts in other countries. While the 1950 law accepted mixed nationality in marriage, most children had access to only their father's nationality. The 1985 law gave children access to their mother's nationality as well, and therefore enabled them to become dual nationals at birth. Mixed-nationality families, with dual-national members, are now commonplace.
Thanks to degenderization, dual nationality has become so prevalent, and difficult to prevent without trampling on personal and family rights, that an increasing number of states, including the United States, no longer object to their adult nationals possessing other nationalities. Many other states, including Japan, continue to be cautious about dual nationality. But Japan's formal opposition is mostly bureaucratic posturing, for in practice Japan can do very little to stop the tide of dual nationality.
The 1985 Nationality Law requires multiple-national Japanese, in Japan and overseas, to file a Notice of Nationality Selection (国籍選択届 Kokuseki sentaku todoke) within two years after their twentieth birthday, or within two years after they became a multiple national, whichever is later. This declaration is also provisioned by the Family Registration Law.
Mutiple nationals who declare their intention of remaining Japanese must also declare their foreign nationalities and promise to renounce them. However, Japan cannot agency the gain or loss or another state's nationality. This limitation in the extent of its authority is reflected in the wording of the declaration, which expresses an intention to endeavor (勤める tsutomeru) to abandon other nationalities. Japanese with, say, US nationality are expected to go to an American consulate and try to renounce their US nationality. They will find, though, that the consulate is very reluctant to expatriate them, and in fact they are within their rights to leave the consulate without demanding that it allow them to renounce.
Ministry of Justice insiders privately admit that, if another state permits dual nationality, Japan has little choice but to accept the consequences of that state's policy. All the ministry can do is send out periodic reminders to known Japanese dual nationals, urging them to singularize their nationality, and warning that failure to do so could result in loss of Japanese nationality. But once Japan has granted its nationality, at time of birth or through naturalization, it cannot retract it simply because someone remains, or later becomes, a national of another state.
Dual nationality is not, however, all its cracked up to be. Most dual nationals are unable to exercise two sets of citizenship at once. Japan-US dual nationals, say, should enter and exit Japan on their Japanese passport. While in Japan, they will be Japanese so far as Japanese law is concerned. As Americans, they have access to American Citizen Services at US consulates, but they cannot expect diplomatic protection from the US government while in Japan -- or from the Japanese government while in the United States on an American passport.
Dual nationality can also prevent one from running for high public offices or holding high-level government positions, and can invite other complications that could limit citizenship. For dual nationals with family and/or livelihoods in both countries, though, having two passports facilitates one's personal freedom and deepens one's sense of belonging in both countries -- neither of which sentiments could possibly harm either state's interests.
Faced with the need to accommodate dual nationality, more states have recognized that the principle of one nationality per person, or even per family, was based on groundless fears of conflicting obligations and divided loyalties. In a world of increasing migration and intermarriage, being able to have more than one nationality not only facilitates the mobility of those whose lives straddle two or more states, but encourages states to open their borders in recognition of their human commonality and demographic interdependency.
How to be a national of Japan and other statesSee Dual nationality in Japan: Not forbidden, unpreventable, and tacitly permitted for further details about the legal and practical wrinkles to being a national of Japan and one or more other countries. |
Statutory loss of presumptive birthright nationalityArticle 12 of the 1985 revision of the 1950 Nationality Law, like Article 9 in the original 1950 law, which was inspired by article 20-2 in the 1924 revision of the 1899 Nationality Law, provides that a child born outside Japan who presumably qualifies for birthright Japanese nationality, who acquires a foreign nationality through birth, will lose its presumptive Japanese nationality retroactive the date of its birth if its parents fail to complete formalities in a timely manner. The formalities consist of filing a notification of birth which includes a declaration of desire to reserve Japanese nationality. Today the notification must be made within 3 months of the child's birth. There are no provisions for such statutory loss of Japanese nationality for children born in Japan who acquire a foreign nationality through birth in addition to Japanese nationality. In 2010, a group of Filipino children born in the Republic of the Philippines between Japanese fathers and Filipino mothers, who had acquired Filipino nationality through their mother and believed they also had a right to acquire Japanese nationality through their father, sued the Japanese government on the grounds that the distinction Article 12 made between them and children born in Japan was unconstitutional. In 2015, the Supreme Court ruled against the children. See Filipinos v. State, 2014-2015: Distinction made by Article 12 not unconstitutional for an account of the Supreme Court's 10 March 2015 ruling that Article 12's distinction between children born outside Japan who acquire a foreign nationality, and those born in Japan who acquire a foreign nationality, does not violate Article 14 of the Constitution, since in view of its intent to minimize dual nationality it does not engender discrimination that has no rational reason. |
Statutory loss of nationality when naturalizing in another countryOn 21 January 2021, the Tokyo District Court ruled in favor of the government of Japan in a case filed on 9 March 2018 by Nogawa Hitoshi and 7 other plaintiffs, who challenged the constitutionality of a stipulation in the Nationality Law that nationals of Japan who acquire the nationality of another country through their own wish will lose the nationality of Japan. On 21 February 2023, the Tokyo High Court upheld the lower court's ruling against Nogawa and the 7 co-plaintiffs. See Nogawa et al. v. State, 2018-2021, 2023: Loss of nationality caused by Article 11 not unconstitutional for details. |
4.7 Merging registers
Family registers, once tools for social control, are today merely records of birth, death, marriage, divorce, and adoption that facilitate personal identification, family law and inheritance, and a host of social and citizenship services. As a legal institution, family registration constitutes the administrative backbone of all crucial services, from child welfare and compulsory education, to national health and pension insurance, and even voter registration.
Municipal databases are now linked nationwide, and all Japanese have been assigned an 11-digit identification number. For the present, these numbers enable improvements in services that had already been automated with computers. At some point the numbers may also be used in health management, tax collection, driver licensing, and passport issuing -- much like the numbers originally intended only for Social Security in the United States have become practically universal personal file numbers, even in the private sector.
While all this may sound ominous, Japan simply consolidates birth, death, marriage, divorce, and other personal records that, in the United States, say, can be scattered across the fifty states and even overseas -- though Japan is not as yet as thorough as Sweden, Singapore, or any number of other countries that have comprehensive personal record systems. In terms of privacy, it is much harder to get personal or family information in Japan than in the United States, where even one's putative race is a matter of public record. Japanese family registers, which in any case contain only fairly innocuous and general information -- no financial or medical information, and no race boxes -- are in principle not open to public inspection.
The main drawback of Japan's family registration system is that it doubles as a Japanese national registration system. This has necessitated an alien registration system, which since 2000 has accommodated information about family members who live in Japan. From a purely bureaucratic point of view, it would make more sense to merge the national and alien registers into a common pool of family records in which all individuals, regardless of nationality, are treated alike. The Family Registration Law would have to be revised to incorporate alien registration, permit the use of Latin and other scripts in the registers, and provide a place to indicate each individual's nationalities. This would actually be easy to do, and would go a long way toward providing a common administrative foundation for serving all citizens of Japan, regardless of their nationality.
"Alien Registration System" now "Residency Management System"From 9 July 2012 -- in a classic slight-of-hand, bait-and-switch, smoke-and-mirrors, carrot-and-stick maneuver -- the Ministry of Justice relaxed some restrictions on aliens in Japan while increasing its overall control of their lives. The Alien Registration Law and the Alien Registration System it provisioned were replaced by a "Residency Management System" defined by new provisions in two immigration control laws and in the Basic Resident Register Law. The Basic Resident Register Law, which until then was for Japanese only, was revised to allow municipalities to register alien residents in the same way. This was a merger of resident registration -- but it was not a merger of family registers, which continue to to for Japanese only, and alien registers, which continue to be created and maintained -- "managed" -- "controlled" -- by the Immigration Control Bureau, instead of by municipal governments.
See Family and alien registers: Why they still need to be merged and how to merge them for a look at the problems that remain unsolved in population registration practices in Japan, where Japanese and alien records continue to be segregated. |
4.8 Imperial Caste Law
The legal status of Imperial Family members continues to be governed by special laws that suspend virtually all of Article 14 of the 1947 Constitution, much of the Family Registration Law, and several sections of the Civil Code, for members of the Imperial Family. The 1889 1890 Constitution specifically provided that the Imperial Throne would be succeeded to by Imperial male descendants according to provisions of the Imperial House Law. The 1947 Constitution simply states that succession to the Imperial Throne will be dynastic in accordance with the Imperial House Law.
First enacted in 1889, and heavily revised in 1947, the Imperial House Law (皇室典範 Kōshitsu tenpan) stipulates the rules for changes in Imperial Family status. It also provides that the particulars pertaining to such changes shall be registered in the Record of Imperial Lineage (皇統譜 Kōtōfu). An ancillary order makes the state, by proxy of the Ministry of Justice and the Imperial Household Agency, directly responsible for maintaining and safeguarding this imperial genealogy -- whereas ordinary family registers are territorially affiliated with, hence under the jurisdiction of, municipal polities.
Legally, then, the Imperial Family is a caste within Japanese nationality. Imperial Family citizenship is inferior in the sense that its members are not as free as other Japanese to make personal choices in many areas of life, including marriage and divorce. A combination of caste and gender discrimination limits the civil freedoms of Imperial Family females and even commoner males.
Under the strictly patriarchal Imperial House Law, acquisition and change of Imperial Family status works much like gain and loss of nationality under older patrilineal right-of-blood nationality laws. An imperial princess who marries a commoner becomes a commoner, and a commoner who marries an imperial prince becomes an imperial princess.
The Imperial Family is now so small that all princes and princesses have to marry commoners. All princes have fathered only daughters, and unlike commoner families, the Imperial Family cannot adopt children or adults. So unless the Imperial House Law is revised to eliminate all forms of gender and status discrimination within the Imperial Family, and between the Imperial Family and commoner families, the Imperial Family will end with the deaths of Crown Prince Naruhito and Prince Akishino.
Hisahito joins the lineOn 6 September 2006, Princess Kiko (nee Kawashima) gave birth to a son, Hisahito (悠仁), her 3rd child with Prince Akishino (Fumihito) [Ayanomiya], following their 2 daughters, Princess Mako (眞子 b1991) and Princess Kako (佳子 b1994). Akihito (Heisei) abdicated on 30 April 2018, and on 1 May 2018 Crown Prince Naruhito (Reiwa) [Hironomiya] became the Tennō and Fumihito became the Crown Prince. And because the law still stipulates male succession, Hisahito stands to follow his father. |
Like other register-defined corporate families in Japan, the Imperial Family admits only Japanese. Nothing in the Imperial House Law would have prevented Naruhito from marrying his poster sweetheart Brooke Shields. Had Naruhito wanted to marry Shields, and had the Imperial Household Council approved, it would have required her to naturalize. For only as a Japanese national could she have become a member of the Imperial Family register, and been not just a wife but a princess and empress.
4.9 Nationalism and race
Nationality brands a human being as a member of a particular herd. Some take their nationality as a mark of pride. Others see it as a scar on the hide of a beast that wants to belong to a different herd, or to no herd at all.
Socrates declared that he was a citizen of the world, not a Greek or an Athenian. Thomas Jefferson announced that he was not a Virginian but an American. Thoreau, a citizen of nature, went to jail rather than submit to a state that demanded his unwilling allegiance merely because he was regarded as part of its nationality. "[W]herever a man goes," he wrote, "men will pursue and paw him with their dirty institutions, and, if they can, constrain him to belong to their desperate odd-fellow society."
Socrates might say that no nationality law is good because the very concept of nationality is unworthy of love. Or he might argue that all nationality laws are bad because they are loved by the wrong gods -- the gods of nationalism. Indeed, many of the nationality problems that continue to complicate the lives of people in Japan, the rest of Asia, and throughout the world are the products of nationalism.
As peculiar as some of Asia's nationality problems may seem in the narrow perspective of regional history, all nationality problems, in all countries, ultimately stem from the acceptance of nationality, both as a mark by which a state legally brands and herds its nationals, and as a measure of human quality. In this sense, all people are hostages to nationality laws and the social and often racialist meanings that are commonly imputed to nationality.
To the extent that anyone learns to take their nationality too seriously, social discrimination based on nationality is going to be a fact of life. In Japan, national and prefectural laws that regard Japanese nationality as a qualification for employment, education, welfare, and suffrage inevitably encourage people in the private sector to make nationality a qualification for housing, bank loans, golf club memberships, even burial.
Social discrimination becomes particularly pernicious when nationality is conflated with that pigment of imagination called race. Racial discrimination alone would be cause for grave concern, but the assumption that race and nationality are one and the same subverts the letter and spirit of the raceless laws that define nationality in all progressive states, including Japan.
Since its inception in 1899, Japan's Nationality Law has treated nationality as a purely legal status devoid of race. Politicians, reporters, school teachers, novelists, tourists, all manner of people throughout the world, are in the habit of imputing racial meanings to Japanese and other nationalities. Such habits, when nurtured by ignorance, are innocent. When fed by ideology, they turn perverse. Either way, they engender forms of discrimination that undermine the principles and hopes of civil society.