Sugiyama v. State

Nationality court cases, 1978-1988

By William Wetherall

First posted 1 April 2006
Last updated 10 Feburary 2021

Road to litigation Aims • Representation • Cases • Precedents • Decisions • Revisions • Withdrawal • Media • Future
Shapiro v. State Shapiro timeline • Okinawa publicists • Kita 1980 • US residency 1978 • Shapiro's statelessness • US residency 1986
Sugiyama v. State Attorneys • Costs • Saori's timeline • Tsuyoshi's timeline • Personal timeline • Later developments
Diet committee deliberations 1977-03-12 Upper House Budget Committee (JSP Doi) • 1978-04-01 Upper House Budget Committee (JSP Tanaka Sumiko) • 1979-03-16 Lower House Foreign Affairs Committee (JSP Doi) • 1984-04-20 Lower House Judicial Committee (Doi) • 1984-05-15 Upper House Judicial Committee (Ikehara, Tanaka Hiroshi, Ito)
Draft bills and proposals 1979-1980 JSP draft bill in Lower House Judicial Committee • 1982-11-12 Citizens Group proposal to MOJ Judicial Council • 1983-02-01 MOJ Civil Affairs Bureau draft bill in Judicial Council • 1983-05 Citizens Group critique of MOJ draft bill
In tribute Ishida Reiko • Jacob Shapiro • Tanaka Hiroshi • Hiroshi Wagatsuma • Yamada Ryoichi • John Yamanaka
Constitution v. Nationality Law (May 1981) Part 1: Patrilineality • Part 2: Multinationality • Part 3: Naturalization

The road to litigation

In 1971, while in Japan before returning to Berkeley for graduate school, I married Sugiyama. Until then, I hadn't given much thought to Japan's Nationality Law. For that matter, I knew nothing about the US Nationality Act.

A student again at Berkeley in 1972, I had reason to read parts of the US Nationality Act and Japan's Nationality Law.

For the first time I realized that a child born overseas to a US citizen parent does not necessarily acquire US nationality. Outside the United States and its territories, the US Nationality Act works on right-of-blood, not place-of-birth, principles. Unless the US parent meets certain US residency requirements, the child could become stateless. Because I met these conditions, any children I would father, with any woman anywhere in the world, would qualify for US nationality.

I read Japan's Nationality Law with an eye for learning whether any children I might have with Sugiyama would also be able to acquire Japanese nationality. The answer was clearly no -- because we were married. Had we not been married, any children she bore, regardless of the father's nationality, would be able to acquire Japanese nationality, but the law was matrilineal for unmarried Japanese mothers. The law was patrilineal only for children born to married Japanese women.

I had also read parts of Japan's 1947 Constitution, and it seemed to me that patrilineality violated Article 14. It also puzzled me that no one had challenged the constitutionality of what appeared to be blatant sexual discrimination in the Nationality Law, of all places. After all, what were courts for?

At some point I resolved to sue the Japanese government if the law hadn't changed by the time I became a father. I do not recollect exactly when this rescue fantasy occurred, but it must have come in the midst of one of those save-the-world fits I had with alarming frequency when I was younger.

This is, inevitably, a very personal account. It requires revealing facts and risking opinions -- about myself, my former wife, our children, our attorneys, and many other participants, friend and foe -- that some of those concerned might regard as private.

However, practically all of the information I am disclosing here can be found in public documents if not in the press. As it is, the following summary of the series of nationality confirmation cases known as "Sugiyama v. State" is but a tip of the proverbial iceberg that fills three file drawers and a couple of book shelves in my home.

The file drawers are full of briefs, supporting documents, decisions, clippings, photographs, and letters from many well-wishers in Japan and abroad, a man in a Tokyo jail, and a solitary hate monger. Someday I will get around to making this material public. Here, though, I will present only an overview of the case and some timelines.

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Aims of litigation

As I read more about law and legal procedure in Japan, however, I realized that cases involving the constitutionality of a national law are not treated in Japanese courts in quite the same manner as they would be in US courts. I realized I could not, in Japan, expect a bench of state-ordained judges to rule unconstitutional a law that had been passed by the Diet.

Japanese courts sometimes suggest that a national law might be improved. But they view the Diet as the proper place to argue the constitutional reasonableness of an existing law. And they are definitely not in the business of telling the Diet how to legislate.

At the same time, Japanese courts were not in the habit of ruling on matters of domestic law in an international vacuum. A credible decision about the Nationality Law would have to address changes in global trends, especially those that were plainly having an impact on Japan.

I therefore concluded that the object of any litigation I might someday initiate against the Nationality Law would have to be to win a war, not a battle. Any decision short of outright rejection -- and the publicity that would follow such a case -- would be enough.

Everyone I spoke with who knew anything about constitutional litigation in Japan, including the attorneys I finally retained to represent Sugiyama and our children, agreed that we would probably have to measure any victory by the manner of defeat.

Representation

There are not a lot of attorneys in Japan, and there were fewer per capita in the late 1970s than there are today. Individuals rarely have need for the services of an attorney, as most civil and private law matters are can be handled without legal representation or litigation.

But most attorneys in Japan wouldn't know what to do with a nationality case. And you won't find an expert on nationality law in the yellow pages.

Fortunately, I knew Hiroshi Wagatsuma, and knew that his father -- Wagatsuma Sakae (我妻栄 1897-1973) -- had been an expert on family law and was instrumental in revising Japan's Civil Code after World War II. Wagatsuma, who was plying between his posts at the University of California in Los Angeles and Tsukuba University, put me in touch with Bai Kōichi (唄孝一 1924-2011), a Tokyo University professor who specialized in family law. Bai had been a student, at Tokyo University, of Kawashima Takeyoshi (川島武宜 1909-1992), who had studied under Wagatsuma Sakae. And Bai introduced me and Sugiyama to Kaji Chizuko (鍛冶千鶴子 b1923), an attorney of the same generation who specialized in family conflict.

Shapiro v. State -- a nationality confirmation case involving a stateless child -- had recently come before the Tokyo District Court. And the small and close-knit world that the legal profession can be, it turned out that Kaji and three colleagues were the attorneys for the plaintiffs in that case. Kaji's team agreed to take our case as well, and I agreed with Jacob Shapiro to split the costs of the gratuity for the translator of a German precedent.

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Cases

Three cases, involving two families, represented by one team of attorneys, became the focus of legal attention in Japan the late 1970s and early 1980s.

Shapiro v. State

The first case was filed in December 1977 by Jacob Shapiro, an American citizen, and his wife Chiba Teruko [Teruko Shapiro, Teruko Chiba Shapiro], a Japanese national, on behalf of their daughter, Esther Hanako Shapiro, who was born in August 1977.

Hanako was the sole plaintiff. Her parents were litigants as her guardian.

Hanako was unable to acquire either Japanese nationality, on account of the patrilineal constraint in Japan's Nationality Law in the case of a Japanese woman married to an alien. She was also unable to acquire U.S. nationality because her father, who had naturalized in the United States, had failed to reside in the United States long enough to qualify as a cause for his daughter, who born outside U.S. territory, to become an American through right of blood as the child of an American.

Hanako was thus stateless, a legal status in Japan, meaning that she was an alien without a nationality.

Hanako's case was dismissed in March 1981. The Shapiros appealed to the Tokyo High Court, which the following year dismissed the appeal, and they chose not to appeal to the Supreme Court.

Sugiyama v. State

Sugiyama and I filed two cases, the first involving Saori, our daughter, the second Tsuyoshi, our son.

Saori's case was filed with the Tokyo District Court in December 1978, one month after her birth. The case was dismissed in March 1981 and appealed the next month to the Tokyo High Court. The High Court dismissed it in June 1982 and it went to the Supreme Court in July.

Tsuyoshi's case began in the Tokyo District Court in May 1982, two months after his birth. It was dismissed in December 1984 and immediately appealed to the Tokyo High Court.

Both the children and Sugiyama were plaintiffs in our two cases. I was a litigant as a guardian.

The file on Saori's first court case consists of five centimeters of legal briefs, transcripts of oral testimonies including mine, and supporting documents. The supporting documents include an expert opinion written by three professors of law, a translation of parts of a German precedent referred to in the opinion, and a copy of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

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German precedent

In May 1974 the German Federal Constitutional Court ruled that Germany's Nationality Act was unconstitutional. The 1913 Nationality Act granted German nationality to the legitimate child of a German man married to a foreign woman, but not to the child of an internationally married German woman. It was amended in 1963 to give German nationality to such a child only if it would otherwise be stateless as a result of being unable to acquire it's father's nationality. Japan's law did not have such a provision. Otherwise, it was the same as the German law.

Not only did the German precedent rule that patrilineality contravened the constitutional principle of equal rights for men and women, but it nullified the State's own law. It also mandated the State to offer German nationality to all children born to internationally married German mothers since 1953. By December 1974, Germany had revised its Nationality Act to give German nationality to a legitimate child if either of its parents was German.

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Decisions

The District Court decisions in Hanako's and Saori's cases were handed down the same day. They differed only in their particulars regarding the different plaintiffs and litigants. Their opinions on substantial issues regarding the Nationality Law were the same, hence I will speak only of the Sugiyama v. State decisions -- the District Court and High Court decisions in Saori's case, and the District Court decision in Tsuyoshi's case.

The three courts that ruled in the two Sugiyama v. State cases took somewhat different stances. My children's requests for Japanese nationality were denied, and their mother's claim that the existing law also violated her constitutional rights was rejected.

All three decisions, in different ways, encouraged a parliamentary review of the existing law in light of the need to prevent statelessness and accommodate other global currents in nationality law. But all rulings agreed that the Diet had taken sufficient heed of the sexual equality principles in the 1947 Constitution when it opted to retain in the 1950 Nationality Law the patrilineal provisions of the 1899 Nationality Law written under the 1890 Meiji Constitution.

The courts did not rule on the constitutionality of the Nationality Law. Nor, in rejecting the claims of the plaintiffs, did they agree that the State's arguments were necessarily correct.

The courts agreed that the Constitution gave no one a right to hand down or inherit nationality. On the contrary, the Constitution both obliged and empowered the Diet to establish the qualifications for being nationals of Japan.

It was up to the Diet to define the State's nationality, and the Diet was free to adopt any standards it wished. The Diet had sufficient cause to adopt patrilineality as the principal criterion, and to make the distinction between married and unmarried women, in order to prevent or minimize dual nationality. Differentiating between the father and mother when qualifying a child for nationality at time of birth did not discriminate between the sexes as such, but made a distinction between whether the father was known or unknown -- i.e., a distinction between whether the child's mother was married or single -- between whether the child was born in or out of wedlock.

It was in the State's interest to prevent occurrences of dual nationality, which would increase if the law were equally matrilineal. Many other countries had primarily patrilineal laws, including not a few other Asian states, such as the Republic of Korea, many of whose nationals resided in Japan. Dual nationality could complicate international matters like the transfer of criminal suspects and the protection of nationals.

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Nationality Law revisions

As things turned out, the court decisions didn't matter, in the sense that Japan had already obliged itself to revise the 1950 Nationality Law pretty much the way we and other proponents of reform had envisioned. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the UN in December 1979, opened for signing in March 1980, and signed by Japan in July the same year. As Japan was expected to ratify the convention within five years, it had until 1985 to revise all laws that discriminated against women.

When ratified, international treaties and conventions become virtual extensions of a state's laws. Almost a year before the first decision in Saori's case, the State had committed itself to a path that was certain to lead to a "father or mother" standard in order to bring Japan's Nationality Law into compliance with CEDAW.

The Diet passed a heavily revised Nationality Law in 1984, and the new law went into effect from 1 January 1985. The 1985 Nationality Law adopted the same either/or ambilineal principle that Germany had.

Supplementary provisions in Japan's revised law included transitional measures which, also like revisions in Germany's law, facilitated the acquisition of nationality by notification for persons born between 1 January 1965 and the day before the revised law came into effect (and hence were minors on the day it came into effect).

A person born after 1964 and before the revised law came into effect -- meaning between 1 January 1965 and 31 December 1984 -- who also fulfilled certain other conditions -- was thus allowed three years within which to acquire Japanese nationality by making a declaration to the Minister of Justice with a few supporting documents and a photograph with one's parents. Nationality was acquired from the date the notification was officially accepted.

Same quality of nationality

While an alien child could thus become Japanese through notification alone -- on the strength of having been born to a Japanese mother who had been married to an alien who was presumed to be the child's father -- a qualified child acquired nationality from the day of notification -- not retroactively from birth. That such persons are not regarded as having acquired Japanese nationality at the time of their birth does not prejudice the quality of their nationality as a civil status.

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Withdrawal of cases after obtaining nationality

Saori and Tsuyoshi claimed Japanese nationality at a local Legal Affairs Bureau in October 1987, only two months before the end of the grace period. Sugiyama and I formally withdrew their cases in March the following year.

The two cases were not going anywhere. They had no legal urgency and the courts were just sitting on them, waiting for them to be withdrawn.

The attorney's felt, and we agreed, that the Supreme Court would not reverse the high court's ruling on Saori's case and might well hand down a stricter ruling. We all agreed that keeping the cases alive would have accomplished nothing, and that pushing them to the bitter end ran the risk of creating worse precedents for future nationality confirmation cases.

Ten years had gone by since I had asked Wagatsuma about an attorney. During this time, he and one of the attorneys passed away. The month after the cases were withdrawn, Sugiyama and I separated and eventually divorced.

We were generally pleased with most of the changes in the law. Our children had become Japanese, in addition to their being US nationals. We did not like the provision in the new law concerning choice of nationality but realized it would be toothless for our children and most others in their position.

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Media coverage

The Nationality Law was not revised because of our cases. Many forces were already in motion, invisible to the public, long before we went to court. The publicity, though, did no harm to the cause of women's, children's, and family rights.

The media often got things wrong. There was a lot of racialization. Some publicists for stateless children in Okinawa, and for Koreans in Japan, were upset by our focus on gender discrimination to the exclusion of other concerns.

Despite their technical flaws, however, many reports, editorials, and personal accounts dramatized, some poignantly, the need for degenderization of nationality.

Being on the receiving end of media attention made me aware of the more general problem of accuracy in reporting. Journalism in the real world is concerned less with facts, than with a selection of facts to compose stories that reflect preconceptions and serve ideologies.

Doi 1984

A number of books were published on nationality issues during the years my children's cases were in litigation. The most widely distributed and read such books is probably the collection of articles nominally compiled by Doi Takako, a prominent leader of the Japan Socialist Party and arguably the strongest advocate in the Diet at the time for Nationality Law reform, particular regarding its patrilineal exclusion from nationality at time of birth of the children of Japanese women married to aliens.

One article gives two pages to Saori's case and also profiles me and Sugiyama. Unfortunately, its characterization of the case, and some of the biographical information, is incorrect -- even though the author was in close contact with us and knew more about our family particulars than most people who supported our cause.

I say this not so much as criticism, but mainly by way of pointing out that, even writers with the best intentions, and considerable access to facts, are likely to tell their stories their own way, and to get some things -- and sometimes some very important things -- wrong.

For a review of Doi's book, see Doi 1984.

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Future needs

The 1985 Nationality Law was intended only to comply with CEDAW and deal with the dual nationality created by compliance. It failed to resolve the problems that still bobbed in the wakes of the 1899 and 1950 laws.

A fundamental overhaul of the law, to bring it into compliance with the fairest and most rational standards possible in today's world, would require facing a living history of legalistic and diplomatic entanglements in ways that most lawmakers are simply incapable of doing. So we live with the status quo, and are forced to understand it.

Unfortunately, reading Japan's past and present nationality laws will shed little light on the numerous nationality issues that exist in Japan today. The full spectrum of nationality issues can be understood only by examining them in the full illumination of their social and political histories.

In 2008, the Nationality Law was again revised, the revision effective from 2009, to allow nationality through parental (paternal or maternal) recognition of a minor child, with the need, imposed from 1985, for legitimation. This revision was mandated by a Supreme Court ruling which declared the legitimation requirement unconstitutional -- a decision that has put pressure on lawmakers to revise provisions in the Civil Code that discriminate against out-of-wedlock children in certain matters of family law, such as inheritance.

Ways to improve the Nationality Law

The following provisions would also improve the quality of Japan's Nationality Law.

1. An alien born anywhere to a Japanese parent can acquire Japanese nationality by notification at any age, provided that the alien is domiciled in Japan.
2. An alien born in Japan can acquire Japanese nationality by notification, anytime after reaching the age of 18, provided that the alien is domiciled in Japan.
3. A Special Permanent Resident can acquire Japanese nationality by notification, at any age.
4. Japanese with other nationalities are not required to abandon their other nationalities as a condition for retaining Japanese nationality. However, they are expected to use their Japanese passports when leaving or entering Japan, and to otherwise be fully subject to treatment as Japanese under Japanese law, including the Common Rules Law, which provides for the treatment of multiple nationals in matters of international private law. And they will not have the diplomatic protection of Japan when traveling or living elsewhere under the passport of another country.
5. Aliens seeking permission to naturalize in Japan are not required to abandon their original nationalities, provided that they accept the conditions stipulated in the previous provision.

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Shapiro v. State

The sole plaintiff in Shapiro v. State was Hanako Esther Shapiro (シャピロ・エステル・華子 Shapiro Esuteru Hanako). Though Hanako was represented by the same group of attorneys that represented the plaintiffs in the two Sugiyama v. State cases, the later cases -- especially the first of the two, concerning my daughter Sugiyama Saori, got most of the media attention because of the ways they were staged. Hanako's parents shunned publicity.

Our attorneys did not welcome a lot of media attention either, for good reason: reporters tended to misrepresent the issues. I myself chose to stiff-arm the many interest groups that wanted to hijack Sugiyama v. State and, pandering to the media, turn it into a race or ethnic issue. We turned down all offers of financial support, and accepted public moral support from a very limited number of politicians and academics.

Hanako was the only plaintiff in Shapiro v. State, whereas Sugiyama v. State pitted both mother and child against the State. Hanako was also stateless, unlike my children, who were able to obtain my nationality -- although that was irrelevant to their cases.

Though the two cases originated from different circumstances, they required essentially the same arguments. While one began a year before the other, they converged to the point that their hearings became synchronized, and their nearly identical decisions were handed down on the same day.

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Shapiro timeline

1977-8-24
Plaintiff: Shapiro Esther Hanako (シャピロ・エステル 華子) born in Tokyo
Father: Jacob Shapiro (ヤコブ シャピロ Yakobu Shapiro), U.S. nationality
Mother: Shapiro (Chiba) Teruko (シャピロ (千葉) 照子), Japan nationality

The above representations of the names of the Shapiro family members are as they were written on a very detailed hand-printed 5-page outline of the Shapiro and Sugiyama cases dated 2 February 1979 written by Ishida Reiko, who kept us well supplied with documents throughout our litigation (see below).

I get the impression, from how Ishida represented the names of the litigants in the Sugiyama case, that the names of the litigants in the Shapiro case appeared somewhat differently in court documents and law journals (see below). Moreover, only Hanako's father was listed as a parent-guardian co-litigant. Her mother was neither a co-litigant or, more significantly, a co-plaintiff. Unlike Sugiyama v. State, she did not represent herself as a victim of the implicit sexual discrimination in the Nationality Law.

I received no copies of the court documents related to the Shapiro case -- except of the court transcription of Jacob Shapiro's oral testimony, on which his name is written ジャピロ・ヤコブ (Shapiro·Yakobu) and signed both シャピロヤコブ (シャピロ ヤコブ Shapiro Yakobu) and either "J Shapiro" or "Shapiro" (the signatures are highly stylized). In other words, Shapiro wrote his family name first and transliterated his given name "Jacob" like it would have been pronounced in Russian, rather than as it is commonly anglicized ("jay-cub" or "jay-cup"), which would be represented in katakana as either ジェイコッブ (Jeikobbu) or ジェイコップ (Jeikoppu). Nagaishi Yasuko, who led Shapiro's testimony, referred to his wife as "Chiba Teruko" (千葉照子) and to their daughter as "Hanako"（華子).

Rarely did the names of the Shapiro family members appear in press reports. "Hanako" (華子) or "Hanako-chan" (華子ちゃん) sometimes appeared in newspaper articles but usually without either of her possible family names -- Shapiro or Chiba. Some mentions of the case in journal articles and books give her name as "Shapiro Hanako" (シャピロ華子). I can't recall seeing her mother's name in print, and her father's name rarely appeared. The Shapiro's didn't want publicity, and for the most part their wishes were respected. See more about Jacob Shapiro in the tributes section below.

Jacob Shapiro was born in 1928 in Harbin, Manchuria, to stateless White Russian parents who soon immigrated to Japan, where he was raised and educated through college. Stateless himself, he went to the United States to work for Columbia Pictures, and after living there for five years, much of that time in Puerto Rico, he naturalized and was granted US nationality in 1968. However, the following year he became the president of Columbia Pictures in Japan and resumed living in Japan.

The US Nationality Act at the time stipulated that a child born abroad to a US national could obtain US nationality through birth only if its American parent had lived ten years in the United States or one of its territories. At least five years of this residence had to be after turning 14 years of age.

1977-12-19
Shapiro v. State (1977-u360)
Tokyo District Court
Plaintiff: Hanako only

1979-05-30

Expert opinion submitted

山田鐐一、早田芳郎、澤木敬朗
Yamada Ryōichi, Hayata Yoshirō, Sawaki Takao
鑑定書：出生による日本国籍取得要件としての血統主義と日本国憲法
Kanteisho: Shussei ni yoru Nihon kokusei shutoku yōken to shite no kettō shugi to Nihonkoku Kenpō
[Expert opinion: Jus sanguinis as a requisite for acquiring Japanese nationality through birth and the Constitution of Japan]

Appended to:

山田鐐一
Yamada Ryōichi
出生による日本国籍取得要件としての血統主義と日本国憲法：国籍存在確認請求事件判決)
Shussei ni yoru Nihon kokuseki shutoku yōken to shite no kettō shugi to Nihonkoku Kenpō: Kokuseki sonzai kakunin seikyū jiken hanketsu
[Jus sanguinis as a requisite for acquiring Japanese nationality through birth and the Constitution of Japan]: Decisions in cases requesting confirmation of existence of nationality]
名古屋大学法政論集
Nagoya Daigaku Hōsei ronshū
[Nagoya University Journal of law and political science]
Number 88, October 1981
Pages 400-427

Translated as:

Ryoichi Yamada, Yoshiro Hayata, Takao Sawaki
The acquisition of Japanese nationality: Jure sanguinis and the Constitution
The Japanese Annual of International Law
Number 24, 1981
Pages 12-22

1979-10-15

Jacob Shapiro's oral testimony

1981-03-30

Shapiro v. State
Tokyo District Court ruling

The Tokyo District Court dismissed Hanako's appeal.

The decision in the Shapiro case addressed the problem of statelessness, as Hanako Shapiro, the child plaintiff seeking Japanese nationality, was stateless. While defending patrilineality as a rational way to prevent dual nationality, the court also recognized the importance of preventing statelessness. The State might wish to amend the existing law so that the legitimate children of Japanese women married to nationals of other states could become Japanese if they were unable to obtain their father's nationality. However, Hanako would qualify for simplified (facilitated) naturalization.

The rulings in Shapiro v. State and Sugiyama v. State came out on the same day, as they were being litigated by the same attorneys, who got the court to schedule them on the same day and in the same time slot on the court docket. The rulings of both cases were summarized in the usual way in law journals and digests of decisions.

The Shapiro v. State got first-feature billing in the May 11 1981 issue of Hanrei jihō (判例時報) [Precedent times], a popular law magazine available at most book stores. The title of the report referred to the "constitutionality" of the dominant patrilineal principle of the law.

いわゆる父系優先血統主義を決める国籍法二条一号ないし三号の規定の合憲性
Iwayuru fukei yūsen kettō shugi o kimeru Kokusekihō 2-jō 1-gō naishi 3-gō no gōkensei
[The constitutionality of the provisions of items 1 to 3 in the Nationality Law, which determine [adopt] so-called patrilineal preferential jus sanguinis]
東京地裁 56.3.30 判決
Tōkyō Chisai 56-3-30 hanketsu
[Tokyo District Court 1981-03-30 decision]
判例時報 Hanrei jihō
昭和56年5月11日 (996号) 11 May 1981 (Number 11)
Pages 24-34

The presentation of the decision, as reported in this article, characterizes the case as a "request for confirmation of existence of nationality" (国籍存在確認請求 kokuseki sonzai kakunin seikyū), which is typical of stateless cases. The plaintiff is シャピロ・エステル・華子 (Shapiro Esther Hanako). Hanako's father, ヤコブ・シャピロ (Yakobu Shapiro > Jacob Shapiro), was the sole parent-guardian co-litigant. Hanako's mother, which the decision refers to as only 千葉照子 (Chiba Teruko) -- her legal name under Japanese law (though American documents might call her Teruko Shapiro or Teruko Chiba Shapiro or Teruko Shapiro-Chiba or the like) -- was neither a co-plaintiff nor or a co-litigant.

The introduction to the article briefly mentioned Sugiyama v. State by its case name, and noted that the decision in this other case had come out on the same day. Without giving the names of its plaintiffs or co-litigant, it described the case as involving "a legitimate child who possessed American nationality, who was born between an American father and Japanese mother" (米国人父と日本人母との間に生まれた米国籍を有する嫡出子 Beikokujin chichi to Nihonjin haha to no aida ni umareta Beikoku-seki o yū suru chakushutsushi). That Saori had a nationality was irrelevant to the case, but it did imply that Sugiyama v. State, unlike Shapiro v. State, did not involve statelessness. The unsigned writer of the feature also pointed out that, in this case, unlike Shapiro v. State, the mother herself as a plaintiff -- though the arguments and decision in the case were essentially like those in the Shapiro v. State case -- hence its focus on the Shapiro case, which originated first.

1981-04

Shapiro v. State (1971-?)
Tokyo High Court

Hanako's case was appealed to the Tokyo High Court.

1982-06-23

Shapiro v. State
Tokyo High Court ruling

The Tokyo High Court dismissed Hanako's appeal essentially upholding the District Court's ruling.

Hanako's parents did not appeal this decision to the Supreme Court.

Hanako's nationality

I have no knowledge of what became of Hanako's status. Her parents had two choices if they wished her to be Japanese. They could have immediately applied for permission for Hanako to naturalize under Article 6 of the 1950 Nationality Law -- which provided that "One who is a child (excluding child by adoption) of a Japanese national and has domicile in Japan" could be naturalized without satisfying items (1), (2), or (4) of the general requirements for naturalization -- namely, without meeting the requirements that one (1) has had a domicile in Japan for five or more years consecutively, (2) is twenty years of age or more and a person of full capacity according to the law of his or her home country, and (4) has property or ability enough to lead independent living.

Or they waited until the Nationality Law was revised, as was already assured, expecting that there would be provisions for nationality acquisitions in cases like Hanako's, which were clearly issues the court decisions suggested the legislature ought to consider. As it turned out, there were no specific provisions for stateless children, but Hanako would have been able to acquire Japanese nationality through the revision's "transitional measures" for "nationality acquisition notification" within three years of the revision's enforcement -- which turned out to be 1 January 1985.

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Okinawa publicists

In the late 1970s and early 1980s, there were lots of stories in the media about stateless children in Okinawa. These children were the legitimate offspring of Japanese women and US servicemen. In some instances the father had disappeared. Many writers failed to mention that the legal origins of Hanako's statelessness were identical to those of most of the stateless children in Okinawa and elsewhere in Japan, and in other jus sanguinis countries.

Publicists for Okinawa's stateless children liked to link their lack of nationality with the presence of US military bases, the struggles of women who meet and marry US servicemen, and racial discrimination. Statelessness, however, was a purely legal problem, not a political, social, or racial one.

A legal problem requires a legal solution. You have to separate the issues if you want to get anywhere in courts, for courts deal with law, not political ideology.

Hanako, and the children in Okinawa, had became stateless by falling through the same holes between Japan's Nationality Law and the US Nationality Act. Neither law was solely responsible. Both equally contributed to the inability of a child to obtain a nationality.

For years before Shapiro v. State, cries for help on behalf of Okinawa's stateless children were directed mostly at the United States government. No one in Okinawa had seen any reason to sue the Japanese government.

"kokusaiji"

It is worth nothing that the most common word used by Okinawa publicists was "kokusaiji" -- "international child" -- by which they meant a somehow racially-mixed child. This included children with, children without, a nationality. Such children without a nationality they called "mukokusekiji" -- and tended to use this expression to imply an "international [mixed-blood] child" without nationality.

Never mind that the Nationality Law was not predicated on racial distinctions. Never mind that stateless was not ever a consequence of racial mixture. Okinawa publicists were convinced, as most people (even scholars) were convinced (and still are convinced), that Japanese nationality has been based on race.

See the next section of this article for more about what I call the "bait and switch" debate over "kokusaiji" versus "konketsuji".

Tellingly, the term "kokusaiji" has come to have a certain currency today, thirty years later.

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Kita Katsuji on Okinawa's "stateless children"

Kita Katsuji (b1936), a TV Asahi employee at the time, who had worked at at TV Asahi's Naha bureau in 1969-1970, wrote the following article for Asahi Journal, the Asahi group's weekly opinion magazine.

喜多勝二 Kita Katsuji
日本帰化への道遠い沖縄の"無国籍児"
Nihon kika e no michi tooi Okinawa no "mukokusekiji"
[The long road to naturalization in Japan for Okinawa's "stateless children"]
朝日ジャーナル Asahi Journal
1980・5・23 (第22巻第21号通巻1110号)
23 May 1980 (Volume 22, Number 21, Issue 1110)
Pages 123-126

Yours truly, two years into Saori's law suit and two years before Tsuyoshi's suit, fired up his pen and wrote the following letter to AJ's editor.

ウェザロール・ウィリアム Wezarooru Wiriamu
日本の国籍問題を"混血児問題"を呼ぶな
Nihon no kokuseki mondai o "konketsuji mondai" o yobu na
[Don't call Japan's nationality problem a "mixed-blood-child problem"]
朝日ジャーナル Asahi Journal
1980・6・20 (第22巻第25号通巻1114号)
20 June 1980 (Volume 22, Number 25, Issue 1114)
Pages 108

To which Kita fired off the following rebuttal.

喜多勝二 Kita Katsuji
ウイリアム氏に反論
Wiriamu shi ni hanron
[Rebuttal to Mr. William]
朝日ジャーナル Asahi Journal
1980・7・4 (第22巻第27号通巻1116号)
4 July 1980 (Volume 22, Number 27, Issue 1116)
Pages 115-116

"kokusaiji" versus "konketsuji"

Kita began his article with this paragraph (structural translation mine).

Kita was of course right that coining a new word for an existing word does not solve the problems associated with the existing the word. And, as promised, he used "konketsuji" where most Okinawan publicists would have used "kokusaiji".

He also, as his title suggests he will, talk about naturalization and statelessness. But he presents on case in which "race" by any definition is a barrier to naturalization or causes statelessness.

As it turns out, it really wouldn't have mattered which term Kita used -- "kokusaiji" or "konketsuji" -- because, either way, he would have proceeded to deepen the popular misconception that "race" had anything to do with naturalization or statelessness. He did not recognize that principles of family law, especially gender distinctions, had engendered most cases of statelessness involving children of Japanese women -- that procedural standards, not race, made naturalization difficult for some applicants.

Like practically all journalists at the time, Kita failed to understand the meaning of "nationality" in Japanese law, as a purely civil (raceless) status designating state affiliation -- as the term must be in international law.

In my letter, I took Kita to task for racializing the nationality problem. I argued that there was nothing "racial" about the nationality law or the problems in the case of my non-stateless daughter (my son was not yet even conceived) and the stateless daughter of another couple represented by the same group of attorneys.

There was no race in the law, and it needed revision only to (1) enable children born to a Japanese woman married to an alien to obtain Japanese nationality, according to the same standard by which a child born to alien woman married to a Japanese man could obtain nationality at time of birth; and (2) prevent statelessness in all cases. And I have yet to find, since the early stages of my research in the late 1970s, a single case in which race had been a legal barrier to Japanese nationality at time of birth or later in life.

Yet Kita was convinced -- as Okinawa publicists were convinced -- as the vast majority of reporters, commentators, and academics I met at the time were convinced -- as the vast majority of journalists and scholars I meet today are convinced -- that putative "race" or "racioethnicity" have figured in Japan's Nationality Law has been somehow "racist" or predicated on "racioethnic" purity.

Kita, in his rebuttal, stuck to his guns. He found, in my arguments, many points that were nothing but "misunderstandings" and "dogma".

Names

Speaking of "kokusaika" (internationalization) -- the newspaper, Asahi Shinbun, in articles and letters I had written in Japanese in the late 1970s, usually reversed my katakana family and personal names and inserted a dot between them. At least the magazine, Asahi Journal, accepted the order in which I customarily wrote my name in katakana -- family name first -- the way my name has been legally registered in Japan.

But alas, the magazine followed its style sheet in putting a dot where I use only a space between my names. The dot is not part of my name -- and most publishers have the way I write my by-line in Japanese.

Tellingly, Kita did exactly what most people do with my name. He assumed, without confirmation, that ウィリアム (Wiriamu) was my family name. I cannot blame him for harboring this stereotype. If I were top have to bet a million yen on the order of a katakana name like mine, knowing nothing about the name or the person, I too would put my money on family name last. Yet as a journalist and scholar, I have learned -- sometimes the hard way (i.e., by making a mistake) -- that names need to be confirmed.

I must count my blessings, though. At least Kita did not call me ウィリアムズ (Wiriamuzu) [Williams]. Or maybe he did editors at the magazine corrected it to ウィリアム (Wiriamu) -- which would have meant they, too, has thought that was my family name. Not a few people have actually tried to correct me -- by insisting on calling me ウィリアムズ (Wiriamuzu) [Williams] -- apparently convinced that surely I had made a mistake on my own business card.

I have always only smiled at such incidents. It doesn't pay to get upset. And it hasn't paid a whole lot to write about the obsession in Japan with reversing customary name order in Japan, when alphabetizing names, as a mark of what -- modernization? westernization? euroamericanization? americanization? internationalization? globalization?

Few people have understood why I should want to "Japanize" the order of my name when writing in Japanese. It it's any consolation, I myself sometimes wonder why I bother with what must rank among the most trivial of the world's non-problems.

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US residency requirement as of 1978

The US Nationality Act is jus soli for anyone born in the United States or its territories -- except children born in the US to foreign diplomats and others with immunity to US laws. But US nationality is acquired through right-of-blood by children born overseas to a US citizen parent who meets certain US residency requirements.

In order to prevent the perpetuation of nationals with no territorial ties to the United States, the US Nationality Act imposes residency requirements on US nationals who become parents while living in other countries. These requirements vary according to whether the child is legitimate, and whether both its parents are US nationals.

At time Hanako was born, the United States gave nationality to a foreign-born child of a US national married to a non-US national only if the US national had resided in the US for ten or more years -- five of which had to be after turning 14.

Any number of family situations can result in the failure of a US citizen to meet this residency requirement. Young US servicemen are arguably more likely to be born and raised under conditions that result in them being posted overseas before satisfying the residency requirement.

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Shapiro's statelessness

Hanako's father, Jacob Shapiro, was not, however, in the military. He didn't set foot in the United States, much less become a citizen, until he was an adult. He was stateless when he went to America, and naturalized there, but returned to Japan before he had satisfied the residence requirement he needed to meet for a child born outside America to become a US citizen through jus sanguinis. The requirement at the time Hanako was born was 10 years, 5 of which had to be after becoming 14 years old,

Had Shapiro still been stateless at the time he was born, she would have become Japanese through Article 3 of Japan's Nationality Law, which was matrilineal for the child of a Japanese woman if the father was unknown (i.e., if she was unmarried), or if the father was known (i.e., she was married) but was stateless.

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US residency requirements change in 1986

In 1986, the US changed the residency requirement for an internationally married US national parent of a child born abroad to five years, including at least two after age 14. This partly plugged one of many holes in the US Nationality Act. The act imposes residency conditions on US nationals who become parents abroad in order to prevent the perpetuation of nationals with no territorial ties to the United States.

See Statelessness in Japan: De jure and de facto lack of nationality for a more complete account of the cases of stateless in Okinawa.

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Sugiyama v. State

Forthcoming.

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Legal team

As it turned out, Kaji Chizuko didn't work alone. She was supported by three other attorneys, who were also women, one of whom -- Wakana Mitsuko -- passed away after Saori's case was appeared to the Supreme Court.

Kaji Chizuko (鍛冶千鶴子)
Nagaishi Yasuko (永石泰子)
Itō Sumiko (伊東すみ子 b1931)
Wakana Mitsuko (若菜充子)

All members of the team were legal activists, known for their advocacy of sexual equality in Japanese law and improvement in family law.

Kaji Chizuko was somewhat of a celebrity attorney, given the high profile of her column on family law in the Yomiuri shinbun. Her husband, too, was an attorney. We met both of them at her home when visiting her after being introduced to her by Bai Kōichi. That was when she clarified what she expected of us in terms of cooperation and compensation. She briefed us on the Shapiro case, and outlined how she expected to pursue our case, in terms of the similarities and differences of the two cases.

Itō would later become a High Court judge, and then the presiding justice at the Utsunomiya Family Court (宇都宮家庭裁判所長). In 1997, while at the Utsunomiya court, she and 2 other female judges, including a Supreme Court justice and the presiding justice at the Yokohama Family Court, compiled statistics showing the percents of female judges in Japan. In 1980, at the time of the the nationality law suits, 76 (2.8 percent) of Japan's 2,747 judgeships were held by women. However, only 43 (2.0 percent) of the 2,134 judges (判事 hanji) were women, while 33 (5.4 percent) of the 613 assistant judges (判事補 hanjiho) were women. By 1996, women held 257 (8.9 percent) of Japan's 2,879 judgeships, including 101 (4.6 percent) of the country's 2,214 judges and 156 (23.5 percent) of it 665 assistant judges. In 16 years, the percentage of female judges had doubled, but the percentage of female assistant judges had quadrupled, which suggested considerable improvement in female representation in Japanese courts.

Moderates

None of the women on the team were radicals in any sense of the word. They were feminists to the extent that they believed in equal rights and opportunities for women, but within the legal establishment they were moderates if not conservatives.

As attorneys, their arguments focused on legal -- not political -- issues, and in particular on the issues they thought they could raise in the context of Japanese law. They dressed, and otherwise acted, conservatively. They were, after all, the products of essentially conservative educations -- women who had gotten to be attorneys by working hard and following the rules.

They were not, in other words, court gladiators, or mass media provocateurs. They were not interested in a lot of publicity. They graciously -- but nervously, I think -- tolerated my activism, which was not at all radical -- at least compared with the rhetoric of some of the more politically motivated interest groups.

Looking back, though, I realize that I probably made a fool of myself in their eyes with my legal innocence -- knowing less then than I do now about the workings of nationality laws in general and Japan's law in particular. They might be surprised with some of my viewpoints today, which are radical in simultaneously anti-radical and anti-conservative ways as I try to break below the conventional depths of structural analysis of Japan's nationality laws in their dynamic historical and social contexts.

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Retainers and other costs

Litigation is not cheap, and though our attorneys had their hearts in the issues, I didn't expect them to work pro bono. Kaji was reasonable, though. She charged only her basic retainers, which she shared with the other three members of the team -- how I don't know. Its sort of like buying a bus ticket -- you don't ask how much the driver and mechanics are getting -- all you want is a ride, and you hope the bus gets you to where you want to go on time.

In addition to the direct out-of-pocket costs, were all manner of incidental costs, not all monetary. Working with the attorneys, dealing with the media, and contributing to the publicity took a great deal of time and immeasurable amounts of emotional energy, both of which -- the time and energy -- I'm still spending. I still occasionally buy a book or too on nationality law, and I have to keep the spiders out of the file drawers and book shelves that house the nationality part of my library.

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Saori's timeline

Saori's case, as noted above, was planned before she was born. We filed the suit pretty much on schedule, in late December 1978, about 2 months after Saori's birth.

As shown in the following timeline, the hearings in Saori's case were quickly synchronized with those in the Shapiro case. The hearings and briefs were of course different, but the cases shared many primary documents and arguments, and were handled by the same team of attorneys, so it made sense to schedule their hearings back-to-back as far as possible.

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Tsuyoshi's timeline

Tsuyoshi's case unfolded pretty much like Saori's case and the Shapiro case. It took about 2 months to file, and about 2-1/2 years for a district court decision.

Tsuyoshi's case had been in the district court just over 2 years when Nationality Law revisions were promulgated on 25 May 1984. The court issued its decision about 6 months later, on 21 December 1984. And the revisions came into effect from 1 January 1985, only 11 days after the decision.

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Personal timeline

1982-02-10

I consulted with the Immigration Bureau about permanent residence and was told what documents to prepare.

1982-03-08

I picked up my negative syphilis test results at a public health center in Tokyo. A doctor confirmed that my hearing, speech, and vision were not impaired (good thing I wasn't stammering that day). He also confirmed that I was not mentally ill, was not a carrier of an infectious disease, and was not addicted to the usual list of drugs. I added the results to the one-centimeter-thick pile of other documents I had gathered, and filed my application for permanent residence. The leg work was equivalent to that required for naturalization.

1983-03-03

The Immigration Bureau called to ask why I had not registered my children as aliens. The question was odd because I had included court documents with the application.

1983-03-23

The Immigration Bureau informed me that my petition for permanent residence had not been approved. The date stamp happened to be my forty-second birthday.

1983-06-30

I obtained a certification of birth abroad for Tsuyoshi, and US passports for both Saori and Tsuyoshi, at the US consulate in Tokyo. I had obtained Saori's certification of birth abroad on 27 December 1978.

1983-07-08

Sugiyama filed alien registration applications for our two children as foreign nationals upon recommendation by our attorneys. From the beginning they had frowned on my non-compliance with the Alien Registration Law, as they felt such willful civil disobedience would jeopardize the case.

I argued, to no avail, that to insist that I treat my own children as aliens, before we had exhausted all appeals, was tantamount to hanging a death-row convict while waiting for a ruling in an appeal.

I later learned that there had been a division of opinion within the Immigration Bureau as to whether my failure to register my children as aliens should be a reason for not granting me a permanent residence permit.

1983-07-09

The mayor of X-city in Y-prefecture notified me and Sugiyama in writing that while we had made alien registration applications for our children on 8 July 1983, notifications of their births had not been filed, and urged us to promptly file them. When filing them, a proper birth certificate was to be attached to the the birth notification.

The notice from the mayor listed our children by their nationality (Beikoku), their address in the city, and their names as Americans (Wetherall, Saori Orene / Wetherall, Tsuyoshi Owen). I was listed first as the father "William Owen Wetherall" and Sugiyama was listed second as the mother.

1983-08-05

I applied a second time for permanent residence. I was allowed to resubmit the same documents, except I had to take another physical, as more than six months had passed. My serum again tested negative for syphilis. A different psychiatrist found me still sane enough to live in Japan. He came to this conclusion after talking to me about the weather for only two minutes -- one minute faster than the first psychiatrist, who had just been a slower speaker.

1983-08-15

I was found guilty by a summary court for violating the Alien Registration Law by not registering my two children as aliens within two-weeks after their birth. A two-page judgment dated 15 August 1983 came by ordinary mail, informing me that I had been fined 5,000 yen for the violations, plus 60 -- apparently the cost of postage to send the documents. The prosecutor's office sent a postcard notification for the same amount. I paid the fine by mail with cash sent in an ordinary envelope, which is against the law, but the court mailed me a receipt. I was never charged with the mailing misdemeanor, which I confess to now because the statute of limitations has passed.

I do not know exactly how the case originated. I was never notified that I was being prosecuted and did not bother to pursue the matter. From the content of the judgment notification, It appears that Nagareyama City Hall, following routine procedures for late registration, notified the prosecutor's office after Sugiyama filed notifications for alien registration on 8 July 1963. When doing so, she submitted a statement, addressed to the Minister of Justice, as the children's legal parent representative, explaining the reasons for the late registration. She signed the statement as the children's legal parent representatives, as they were the principals in the Sugiyama v. State cases.

Nagareyama city then mailed a formal notification, dated 9 July 1963, to my children, and to me and Sugiyama as those responsible for their registration, acknowledging receipt of the alien registration notifications but informing us that, in order to effect them, we would have to properly file notifications of birth and attach certificates of birth to the alien registration notification. In other words, up to this point, the children's births had remained unregistered -- as we had taken their cases to court on the strength of the written refusals of Maebashi City Hall to accept their birth notifications as we had submitted them.

The attorneys suggested that Sugiyama submit to birth notification procedures simply to avoid more legal hassles -- even though doing so would mean that the children would not be recorded in her family register except in the remarks column, where it would be stated that they were aliens of American nationality. She immediately did so, and Nagareyama City Hall issued each child an Alien Registration Certificate (booklet) showing that their registrations were effective from 8 July 1983, i.e., the date the notifications were filed.

The judgment from the Matsudo Summary Court was dated 15 August 1983, so it appears that it took about one month for the legal machinery to decide how to deal with the violation of what amount to administrative procedures related to alien registration. Legally, both parents of a child who does not qualify for Japanese nationality are responsible for registering the child as an alien. However, the summary court decision was directed only at me. It made no reference whatever to Sugiyama. Neither I nor Sugiyama were prosecuted for violating birth notification procedures -- presumably because it was clear that we had, in fact, made the required legal attempts to register the children's births -- as a result of which we had taken legal action against the State.

1983-10-29

Permanent residence granted.

The grant of permission to permanently reside in Japan came a month after I had paid the Alien Registration Law fine.

1984-04-13

Sugiyama sent a one-page formal statement to the heads of both houses of the Diet. The statement appealed to lawmakers to abolish publicized plans to introduce a nationality selection system in conjunction with partial revisions of the Nationality Law and the Family Register Law.

The statement argued that a Japanese child with one foreign parent will be influenced by both countries, and will form an identity that cannot be divided. It also argued that a child who has obtained the nationalities of both parents should have the right to keep both nationalities for life.

The statement saw no problem with the existing principle of freedom to renounce nationality, which accommodates dual nationals who wish from the standpoint of personal freedom to chose their nationality. However, to require Japanese with other nationalities to chose between Japanese and the other nationalities would be inhumane.

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Later developments

1987-11-27

During the morning of Friday, 27 October 1987 (according to my date book) -- with only two months left in the three-year period during which we could file a notification to acquire nationality for our children under the transitional measures in the 1985 revisions -- Sugiyama and I, accompanied by Saori and Tsuyoshi, filed a one-page "Nationality acquisition notification" (国籍取得届 Kokuseki shutoku todoke) for each child, at the regional Legal Affairs Bureau in Matsudo. The form was specifically designed to comply with Paragraph 1 of Article 5 of the supplementary provisions to the 1950 Nationality Law as revised from 1985.

A clerk took separate photographs of each of the children sitting between us, and these photographs were attached to their notifications. My undated copies of the notifications show the photos dated as having been taken on 28 October 1987. The date of nationality acquisition on their registers, however, is 27 October 1987 -- the date the bureau vetted and duly accepted the notifications.

The following four boxes on the forms were checked by way of confirming that the children were qualified under the transitional measures stipulated in Article 5(1) of the supplementary provisions (my translation).

Born between 1 January 1965 and 31 December 1984.
Have not been a Japan national.
At the time of birth mother was a Japan national.
Mother is presently a Japan National.

In accordance with Article 5(4) of the supplementary provisions, Saori and Tsuyoshi became Japanese nationals from the date their notifications were filed. Entries on their family registers show the following three items of information (my paraphrased translations).

[Date] born in U-city of V-prefecture
[deputy mayor]

1987-12-21 Nationality acquisition
1988-1-27 Notification filed by father and mother parental authorities
1988-2-4 [Accepted as] sent from X-city in Y-prefecture
  and entered [= recorded] in register [= and registered]
( Nationality at time of acquisition: United States of America
Hitherto name: Uezarooru, Saorioriinu / Tsuyoshiooen )
[deputy mayor]

1992-3-19 Father and mother file notification [concomitant with divorce notification] to the effect [they] decide that parental authority is mother

1988-03-22

Saori's case was withdrawn from the Supreme Court, and Tsuyoshi's case was withdrawn from the Tokyo High Court.

1988-04

I began living separately from Sugiyama. Five years later we divorced. We dine out together once or twice a year with our children.

1999

The Legal Affairs Bureau in Kashiwa permitted me to apply for naturalization. I gathered all required documents but decided not to file. Details on this fairly simple and predictable experience, and reasons for not filing, are chronicled in the section on naturalization.

2002-06

Saori, my daughter, reconfirmed her Japanese nationality as required by law. She was late in doing so but this made no difference. She graduated first from a university, then from a nutritionist college, and is now a managerial nutritionist, responsible for food preparation and services at a group of six general hospitals.

2006-2

Tsuyoshi, my son, was also late in declaring his intention to continue to be Japanese, again with no consequence. He dropped out of high school then studied for and passed his daiken. He worked part-time for several years overseeing the computers in the business center of the Palace Hotel in Tokyo, but lost this job when the hotel closed for complete rebuilding. On weekends he becomes DJ Family. He has done sets all over Japan, including several in Okinawa, and has also performed in Seoul. He has released two CDs of his own tracks, and contributed tracks to other CDs and on-line games.

Future

Both of my children will spend the rest of their lives endeavoring, as required by Japanese law, to renounce their US nationality. In the meantime, they will continue to be nationals of both countries of birth.

I have, however, given my children two pieces of advice. (1) Since they have not actually lived in the United States, their children, if born outside the United States, will not qualify for US nationality. (2) If they continue to be domiciled in Japan (which is most likely), and if maintaining their US passports becomes too much trouble for any reason (bureaucratic or political), then they should simply forget that they are also US nationals -- either positively renounce their US nationality, or start using their Japanese passports when entering and leaving the United States.

See Dual nationality in Japan: Not forbidden, unpreventable, and tacitly permitted for further details about how my children, and tens of thousands of Japanese, are legally able to remain dual nationals.

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Deliberations and proposals

The Nationality Law has been the subject of discussion and debate in many sessions of the Diet, and in numerous sessions of House of Representatives and House of Councilors committees and subcommittees. Here I will introduce only a few of the highlights, using both published copies of proceedings and electronic versions posted by the government of Japan.

In addition to the Japan Socialist Party, which publicized a fairly simple draft of a possible revision bill early in the movement to revamp the Nationality Law, As it became clearer what the government was considering, a number of citizen groups submitted formal proposals or suggestions (提言 teigen) they hoped would influence deliberations in standing government councils and Diet committees and finally on the Diet floor. I will also introduce, and comment on, these documents in this section.

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1977-03-12 Upper House Budget Committee (JSP Doi)

12 March 1977
80th Session of National Diet
Budget Committee of House of Councilors

Discussants
Doi Takako (b1928), member of House of Representatives, Japan Socialist Part
Fukuda Hajime (福田一 1902-1997), Minister of Justice
Kagawa Yasukazu (香川保一 b1921), Director-General, Civil Affairs Bureau, Ministry of Justice

This meeting took place 5 months before Hanako Shapiro was born, and 3 years before Japan would sign the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Doi Takako, a House of Representatives parliamentarian and member of the Japan Socialist Party, raises the issue of sexual discrimination in the Nationality Law and Immigration Control Law. Doi prefaced her remarks with comments about 1975 having been International Women's Year, and that the government of Japan had already initiated a domestic action plan to study what laws it would have to revise in order to comply with the convention on eliminating discrimination against women, which was then being drafted by the United Nations.

Doi begins with references to Articles 14 and 24 of the Constitution, which provide that there shall be no discrimination under law because of sex (Article 14), and that laws will be enacted with the dignity of the individual and the essential equality of sexes in mind (Article 24). She wonders what the Fukuda Hajime, the Minister of Justice, thinks about this in view of the need to revise Japan's laws. And Fukuda, acknowledging that, fallings (陥落 kanraku) [through holes] between the Constitution and actuality are not a good thing, and that [we in the government] have to endeavor to correct them as determined by the Constitution as amended after Japan's defeat in the war. (Page 29 in the published proceedings of the 12 March 1977 meeting, machine copy provided by Ishida Reiko circa 1979).

Doi briefly overviews the differential treatment accorded Japanese men and women under the Nationality, in terms of the preferential treatment of the children of Japanese men and alien women when it comes to Japanese nationality. She also mentioned the preferential treatment given alien wives of Japanese men in the Immigration Control Law and in the naturalization requirements of the Nationality Law.

Doi said that, generally, there are two status principles, one based on the principle of territorial affiliation (属地主義 zokuchi shugi), the other based on the principle of demographic affiliation (属人主義 zokujin shugi). Japan follows neither principle, she said. In Japan, status is based on male-ism (男子主義 danshi shugi), hence Japan's Nationality Law is not simply jus sanguinis (血統主義 kettō shugi), but is patrilineal jus sanguinis (父系血統主義 fukei kettō shugi). This goes back to the feudal male-centrism (男子中心主義 danshi chūshin shugi) that was codified in the old [1899] Nationality Law.

Doi thought the domestic action plan was a good thing, and hoped that the Minister of Justice would consider the revisions that needed to be made in the Nationality Law and other laws. He said he would to do so.

Doi then exchanges views with Kagawa Yasuke, Director-General of the Justice Ministry's Civil Affairs Bureau, which oversees the Nationality Law. With him she gets more specific about how the law operates to discriminates against Japanese women married to aliens by considering their children unqualified for Japan's nationality. And, if living in Japan, the children are disadvantaged when it comes to school admission and employment.

Sagawa's reply comes down to the government's need to prevent dual nationality, and this is best achieved when one spouse takes the nationality of the other and the children acquire the same nationality. You can can take either the father or the mother as the standard, and Japan has chosen the former. Adoption of a matrilineal principle would engender difficult problems. And adoption of an ambilineal principle would result in dual nationality and its problems.

Doi argues that children should be allowed to choose their nationality. Change the law so that children can acquire Japan's nationality if either their father or mother has Japan's nationality. Sagawa replies that a child's alien nationality is determined by another state, and Japan can't say anything about it. In other words, an individual's nationality is a matter between the individual and the state governing the nationality. When nationality is determined by the husband's home country law, regarding the choice of nationality of a child born between with an alien, if it can be made through agreement between the wife who is an alien, and the husband who is a person of the country, then the sort of choice that she was proposing would would be possible -- but as of that time, there was no country that recognized such choice.

So does he think, Doi wonders, that the laws of Japan are to follow the law of other countries? She's of the opinion that Japanese laws are to follow the Constitution of Japan. And didn't the Ministry of Justice, just a while ago, say that the domestic action plan is geared to abiding by the sexual equality provision of Japan's Constitution?

Justice Minister Fukuda jumps back into the discussion by reiterating his previous agreement to consider everything that Doi has pointed out. And Doi closes with a strong reiteration of the need to revise the Nationality Law in accordance with principle of essential equality of the sexes.

At no time in this discussion does Doi refer to stateless children, much less to Okinawa. They are not yet on her political horizon.

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1978-04-01 Upper House Budget Committee (JSP Tanaka Sumiko)

1 April 1978
84th Session of National Diet
1st Subcommittee of Budget Committee of House of Councilors

Tanaka Sumiko (田中寿美子 1909-1995), a House of Councilors member affiliated with the Japan Socialist Party, brought up the issue of sexual inequality in the Nationality Law in the House of Councilors (upper house) Budget Committee. During the session, she referred to the Shapiro case particulars but no by name of the plaintiff or her parents. She uses this case to appeal to the need to revise the law in order to provide the children of Japanese women married to foreigners the same access to Japanese nationality at time of birth as the children born out of wedlock to Japanese women, become Japanese because their father is not known.

Tanaka also raises the issue of naturalization, citing the case of guitarist Claude Ciari (クロード・チアリ b1944), as reported in the as in 8 March 1978 issue of the evening edition of Asahi shinbun, who had difficulty meeting the continuous residence requirement. The alien wife of a Japanese man can apply for naturalization immediately, but the alien husband of a Japanese woman has to meet a 3-year continuous residency requirement. Ciari, as a performer, could not get the sort of visa that would allow him to meet the residential requirement. Tanaka mentions that he and Ciari and his wife had a child, but does not relate that they delayed their 1975 until after the child was born in order for it to became Japanese through matrilineality. Ciari would naturalize in 1985 as Chiari Kurōdo (智有蔵上人).

Tanaka's opponent in the discussion was the incumbent Minister of Justice Setoyama (瀬戸山三男 1904-1997), whose role of course was to defend the intent of the law to prevent multiple nationality. During the exchange, Kagawa Yasukazu (香川保一 b1921), later a judge, then the Director-General of MOJ's Civil Affairs Bureau, which oversees nationality matters, spoke at length on the ministry's concerns about dual nationality, referring particularly to the sort of difficulties which would arise for children who -- were Japan to replace patrilineality with ambilineality as the primary criterion for acquiring Japanese nationality at birth -- would acquire Japanese nationality (日本国籍 Nihon kokuseki) in addition to Kankoku (ROK) nationality (韓国国籍 Kankoku kokuseki) or Chōsen register status (朝鮮籍 Chōsen-seki).

Note Kagawa's careful distinction between "nationality" (国籍 kokuseki) and "register status" (籍 seki). Japan and the Republic Korea (ROK) are states with nationalities. "Chōsen" refers to the former territory of Chōsen, which Japan formally lost under the terms of the San Francisco Peace Treaty. It is not a specific nationality, but refers to a territorial status derived from having a household register in Chōsen -- i.e., in the territory Japan released from its sovereignty, which became divided into ROK, which Japan recognized in 1965, and the Democratic People's Republic of Korea DPRK), which as this writing in 2014 Japan has yet to recognize.

Tanaka Sumiko was originally a bureaucrat in the Women's and Minor's Bureau of the Ministry of Labor. Her husband was Tanaka Toshio (田中稔男 1902-1993), a Japan Socialist Party parliamentarian in the House of Representatives known for his social activism, especially in connection with the buraku liberation movement, the most radical faction of which was supported by the Japan Socialist Party. After retiring from politics, she wrote articles, translated books on feminist issues, and was active in movements concerning a number of women's issues, including opposition to war and equality in employment.

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1979-03-16 Lower House Foreign Affairs Committee (JSP Doi)

Forthcoming.

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1979-1980 Lower House Judicial Committee (JSP bills)

On 27 February 1979, about 3 weeks after the first hearing in Sugiyama v. State, the Japan Socialist Party (JSP) submitted to the Judicial Council (JC) of the Ministry Justice (MOJ) a draft of a simple bill to revise the 1950 Nationality Law in order to eliminate sexual discrimination from the law. This appears to be the first formal movement to revise the, shortly after our case joined the Shapiro v. State case -- and, unlike the Shapiro case, sought and got publicity.

JSP re-submitted the same draft bill to MOJ's Judicial Council on On 18 February 1980. The background information supplied by the press kits in 1979 and 1980 were somewhat different. JSP also prepared English versions of the proposal along with background information including brief descriptions of the contained less information than the Japanese

JSP hooked its 1979 and 1980 proposals to the 1979 International Year of the Child, which was perfectly timed for the Shapiro and Sugiyama cases. JSP reiterated Principle 3 of the United Nations Declaration of the Rights of the Child, adopted by the General Assembly in 1959, which holds as follows.

But the 1979 and 1980 proposals were also hooked to the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The convention had not yet been formally adopted, much less opened for signing or signed, but it had been drafted, and adoption and signing were immanent. Hence JSP literature also cited parts of Article 9 of CEDAW, which makes the provisions (underscoring and boxed comments mine).

The proposal put forth a year before the Elimination of All Forms of Discrimination Against Women (CEDAW) was available for signing. But the Japanese government had already begun moving in that direction.

The United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in December 1979. The convention opened for signing in March 1980, and Japan signed in July 1980. However, the Japanese government had been studying how to eliminate sexual discrimination in its laws since the first drafts of CEDAW were publicized at the World Conference on Women held in Mexico City in 1975, the International Women's Year, which marked the Decade of Women (1975-1985). Japan, signing in 1980, committed itself to revising its laws in accordance with the convention by 1985, when it would ratify the convention. By the late 1970s, however, Japan was already studying how to revise the Nationality Law.

The proposal called for the following revisions to the 1950 Nationality Law (slightly edited version of English copy released at press conference, underscoring and (parentheses) in original, [bracketed comments] mine).

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1982-11-12 Asia Human Rights Center proposal (Ariyoshi et al)

Forthcoming

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1983-05 Nationality Law Revision Citizens Group (Ishida et al)

Forthcoming

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1984-04-20 Lower House Judicial Committee (Doi)

Forthcoming

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1984-05-15 Upper House Judicial Committee (Ikehara, Tanaka Hiroshi, Ito)

The 15 May 1984 session of the Judicial Committee of the House of Councilors was devoted to the Nationality Law revision bill on the eve of its enactment on 25 May 1984. It was the final opportunity for concerned legalists and scholars to express their opinions about the bill.

Attending the session, in addition to its usual members, were the 3 following "witnesses" (参考人 sankōnin).

上智大学教授      池原  季雄君
国籍法改正につ
  いて提言する市
  民グループ会員
愛知県立大学教授  田中    宏君
弁 　　護　 　士　伊東すみ子君

Sophia University professor   Ikehara Sueo
Members of citizens group
  making proposal concerning
  Nationality Law revision
Aichi University professor    Tanaka Hiroshi
Attorney                      Ito Sumiko

Ikehara Sueo (池原季雄 1919-2000) was serving as the Chairman of the Nationality Law Subcommittee (国籍法部会 Kokusekihō bukai) of the Legislative Council (法政審議会 Hōsei shingikai) of the Ministry of Justice at the time revisions of he law were being deliberated in the Diet. Ikehara was a specialist in international private law, which includes nationality law.

At the time, Ikehara was known as the author of a general introduction to international law, 国際私法 (総論) (Kokusai shihō (Sōron) [International private law (General theory)], first published in 1973, together with Egawa Hidefumi's and Yamada Ryōichi's 国籍 (Kokuseki) [Nationality law], an equally seminal work, in a 2-in-1 boxed volume. Later editions of both books were separately published.

Ikehara is known for a Grand Bench Supreme Court ruling (最高裁判所大法廷判決) made on 25 March 1964 in Supreme Court 1961 (O) Case No. 449 (最高裁判所 昭和37(オ)449) concerning a request for divorce (離婚請求 rikon seikyū). The court adopted the views Ikehara expressed in a paper called "Jurisdiction and nationalities of principals in international private law" (国際私法における裁判管轄権と当事者の国籍).

The case involved a divorce between a woman who had once been a national of Japan and a Chosenese man, who had married in Shanghai in 1940, gone to Korea in 1945, and divorced in 1946, after which the woman returned to Japan but experienced difficulty getting her status of divorce recognized. The court held that, in a divorce between aliens, if circumstances in which the plaintiff has been deserted, or in circumstances in which the whereabouts of the defendant are unknown, or in circumstance tantamount to these, even if the defendant's address is not in Japan, when the plaintiffs address is in Japan, a court in Japan will have international jurisdiction. The relatively brief decision is available in a pdf file from 裁判所 (Courts in Japan). It is also Saikō Saibansho minji hanrei shū (最高裁判所民事判例集) or "Supreme Court civil matters decisions", which is usually abbreviated Minshō (民集 第18巻3号486頁民集).

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In tribute

The following are expressions my feelings about a few individuals -- among many others -- who stand out in my memory of the "trial" years. Among these individuals, I knew only Wagatsuma fairly well. The others I met only once or twice, at most only 3 or 4 times, yet something about them -- their presence, their enthusiasm -- have continued to inspire me. Most of them have passed away, and the rest will follow, but all are remembered.

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Ishida Reiko

Forthcoming.

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Jacob Shapiro

Jacob Shapiro's parents were White Russian refugees in China. The Soviet Union of post-Revolution Russia had denaturalized all White Russians who had fled Russia, or were already outside the country, and were seeking asylum or otherwise renouncing their connections with the new state. And so Jacob, born in Manchuria in 1928, was stateless from birth.

Soon after his birth -- in the same year, according to his younger brother Isaac Shapiro's autobiography -- Jacob's mother Lydia, a pianist -- took him to Japan, where he was raised and educated bilingually. Since both of his parents were stateless at the time of his birth, had he been born in Japan, he would have been Japanese under the place-of-birth provisions in Japan's Nationality Law at the time and still now.

Jacob's paternal grandparents had settled in Japan after the Russian Revolution in 1917. His mother and father had met and married in Berlin, where they had fled, then lived in Palestine for a while, but moved to Harbin, China before they had been in Palestine long enough to become citizens.

Is younger brother Issac was born on 5 January 1931 in Tokyo. By then, 3 generations of Jacob's family were living in Japan. His parents, professional musicians, had come in 1928 with his 3 older brothers, including Jacob, who was born in Harbin in 1928.

When Issac was 6-months old -- Jacob 3 years old -- the family returned to Harbin, and would live there for 5 or 6 years until 1936, when they returned to Japan permanently. In Japan they lived in Sagiyama and then Honmoku in Yokohama, and the boys attended Yokohama International School.

After college, still stateless, Jacob accepted a job with Columbia Pictures in United States, much of it involving work in Puerto Rico, a US territory. Five years later, in 1968, he became a US citizen, but was then posted back as the president of Columbia Pictures in Japan.

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Tanaka Hiroshi

Forthcoming.

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Hiroshi Wagatsuma

Shortly before I returned to Japan in 1975, while a graduate student at Berkeley, I met and befriended Hiroshi Wagatsuma (我妻洋 1927-1985), a Japanese anthropologist who had settled in the United States and was then at UCLA. In 1978, when I found myself an expecting father, I asked Wagatsuma if he knew where I might find an attorney to represent me and my family in a nationality law suit.

I knew that Wagatsuma's father, Wagatsuma Sakae (我妻栄 1897-1973), had been an expert on family law and was instrumental in revising Japan's Civil Code after World War II. And Wagatsuma, on his way to becoming a anthropologist in America who specialized in minority groups and social deviancy, had worked with delinquents in juvenile courts, which was where he became familiar with cases involving mixed-blood, Korean, and buraku neighborhood youth.

To be continued.

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Yamada Ryoichi

Yamada Ryōichi (山田鐐一 1922-2008) was the junior author, with Egawa Hidebumi (江川英文 1898-1966), of the then and still most generally authoritative book on Japan's Nationality Law. Egawa, an authority on international private law, which includes nationality law, had passed away before the 1st edition of the book was published. Yamada continued to carry the torch with help of Hayata Yoshirō (早田芳郎), who joined the byline in the 2nd and 3rd editions of the book, as follows.

Egawa and Yamada 1973 (1st edition)

江川英文、山田鐐一 (著)
国籍法
東京：有斐閣、1973年7月発行
289ページ

Egawa Hidebumi, Yamada Ryōichi (authors)
Kokusekihō
Tokyo: Yūhikaku, July 1973
289 pages

Egawa, Yamada, and Hayata 1989 (2nd edition)

江川英文、山田鐐一、早田芳郎 (著)
国籍法
新版
法律学全集 59-2
東京：有斐閣、1989年4月発行
xxxページ

Egawa Hidebumi, Yamada Ryōichi, Hayata Yoshirō (authors)
Kokusekihō
[Nationality Law]
Shinpan [New (2nd) edition]
Tokyo: Yūhikaku, April 1989
xxx pages

The 2nd edition addresses the 1984 revisions effective from 1985. Its 3 parts cover the following topics (translations mine)

第１編   総論（国籍の概念および機能；国籍法の原則；国籍の抵触；国籍法上の先決問題；国籍法上の法源）
Part 1   General theory (Concept and function of nationality; principles of nationality law; Conflict of nationality; First questions from viewpoint of international private law; Sources of law from viewpoint of nationality law)
第２編   国内立法による国籍の取得および喪失（国籍の取得；国籍の喪失；補説）
Part 2   Acquisition and loss of nationality based on domestic statutes (Acquisition of nationality; Loss of nationality: Supplementary explanations)
第３編   国際法的原因による国籍の変更（樺太・千島交換条約による国籍の変更；下関条約による国籍の変更；ポーツマス条約による国籍の変更；日韓併合条約による国籍の変更；対日平和条約による領土の変更と国籍問題）
Part 3   Nationality based on international law causes (Changes of nationality based on Karafuto-Chishima exchange treaty; Change of nationality based on Shimonoseki Treaty; Changes of nationality based on Portsmouth Treaty; Changes of nationality based on Japan-Korea Annexation Treaty: Changes of territory and national problems based on Peace Treaty with Japan)

Egawa, Yamada, and Hayata 1997 (3rd edition)

江川英文、山田鐐一、早田芳郎 (著)
国籍法
第3版
法律学全集 59-2
東京：有斐閣、平成9年7月
xxxページ

Egawa Hidebumi, Yamada Ryōichi, Hayata Yoshirō (authors)
Kokusekihō
[Nationality Law]
Dai-3-han [2rd edition]
Tokyo: Yūhikaku, July 1997
xxx pages

The 3rd edition covers minor revisions promulgated on 12 November 1993 (Law No. 89), related to effects of the new Administrative Procedures Law (行政手続法 Gyōsei tetsuzuki hō) promulgated on 20 November 1992 (Law No. 88), effective from 1 October 1994. This edition also examines theoretical foundations of nationality law with reference to academic opinion and legal precedents since the 2nd edition.

Yamada and Hayata were the first listed of the three legalists who coauthored an expert opinion submitted to the Tokyo District Court by the team of attorneys representing the Shapiro and Sugiyama nationality cases in the late 1970s and early 1980s. Attached to the opinion was a Japanese translation of a German precedent. As the brief was used in both cases, Shapiro and I shared the payment of a gratuity to the translator. The brief has been published in Japanese and English (see Shapiro timeline above for particulars).

江川英文、山田鐐一 (著)
国籍法
東京：有斐閣、1973年7月発行
289ページ

Egawa Hidebumi, Yamada Ryōichi (authors)
Kokusekihō
Tokyo: Yūhikaku, July 1973
289 pages

Yamada attended one of the hearings in my daughter's case, the only time I met him that I can vaguely recall, I believe before the 30 March 1981 District Court or 23 June 1982 High Court rulings. After the Diet-enacted revisions were promulgated, on 25 May 1984 (Law No. 45), and shortly before they would go into effect on 1 January 1985, he co-authored a simple guidebook to the "New Nationality Law" and related matters with Tsuchiya Fumiaki (土屋文昭).

山田鐐一、土屋文昭 (著)
わかりやすい新国籍法
有斐閣リブレ 7
東京：有斐閣、1984年10月31日発行
79ページ、単行本

Yamada Ryōichi, Tsuchiya Fumiaki
Wakariyasui Shin Kokusekihō
[Easily-understood New Nationality Law]
Yōhi ribure < Yuhikaku Livret >
Tokyo: Yūhikaku, 31 October 1984
79 pages, paperback pamphlet

While the 1950 law was heavily revised, it was not really a "new" law as such. Some people, though, referred to the pre-revision version of the 1950 law as the "old Nationality Law" (旧国籍法 kyū Kokusekihō) and to the 1899 law as the "old old Nationality Law" (旧旧国籍法 kyō-kyō Kokusekihō). In any event, a new edition (新版 shinpan) of the guidebook, retitled simply Wakariyasui Kokusekihō (わかりやすい国籍法), was published in 1993, and 3rd edition (3版 sanhan) came out in 1999.

A somewhat less timely English version of the 1984 edition of the Japanese pamphlet was published a year later.

Ryoichi Yamada and Fumiaki Tsuchiya
Translated by J.C. Yamanaka
An Easy Guide to the New Nationality Law
(Answers to 20 Questions on New Bilineal System,
Naturalization, Dual Nationality and Family Register)
Tokyo: The Japan Times, August 1985
71 pages, paperback pamphlet

Note that the characterization of the new system as "bilineal" was technically incorrect. The system is "ambilineal" -- meaning that a child can become Japanese if either its father or its mother is Japanese. A literally "bilineal" criterion would require that both of the child's parents be Japanese.

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John Yamanaka

A year or two after the publication of the English version of Wakariyasui Shin Kokusekihō, I had the honor and pleasure of meeting its translator, J.C. Yamanaka, a veteran journalist who, during the late 1970s and early 1980s, had been the managing editor and in turn the executive editor of The Japan Times. He was still an executive at the newspaper and would later become its auditor.

John Chushi Yamanaka (1923-2011) was born in the United Kingdom in 1923, the son of Chushi Yamanaka and Winifred Mary Cornell, who had married in the UK in 1920. He was "John Yamanaka" when not "J.C. Yamanaka" in British guise, but as a dual UK-Japanese national, he was "Yamanaka Chushi" in the Japanese Imperial Navy during World War II.

I introduced to John in a corner of the Japan Times editorial office when I happened to be there for a conference with the then managing editor Shimada Shigeo. That would have been in the fall or so of 1986, when I translated crucial parts of prime minister Nakasone Yasuhiro's Karuizawa talk, from which were extracted, distorted and out of context by mass media, his now famous comments about social intelligence and blacks, Hispanics, and Puerto Ricans in the United States. I vague recall meeting him on another occasion at the Foreign Correspondents Club of Japan, to which I did not belong and rarely went.

I say "honor" because John was a living legend. I had heard about him -- his birth in Britain to a Japanese father and English mother, his coming to Japan 1941 (the year I was born) a bit before Pearl Harbor (which came several months after my birth). I'd heard he'd served in the Japanese Imperial Navy during the war, then left Japan for a few years before returning to the country and becoming a news editor. A "pleasure" I say because he was a very interesting and humorous person and made me feel totally at ease in his company.

I told him I could think of no one more appropriate than him -- a dual national from birth -- as the translator of a book on the ambilineal revisions in the Nationality Law. He talked from experience about dual nationality being something you may wish you didn't have when your countries of nationality are at war with each other, as Japan and the UK were when he was a young man. He smiled when I reminded him that, according to popular opinion, dual nationality is supposed to be impossible in Japan. It's really impossible everywhere, though, since generally you can only wear one nationality at a time. The problem is that others will question your loyalty.

John was a living example of the impossibility of a lot fictions that pass for truth in both journalistic and academic writing about Japan and people like him -- and my children. He would not have become a dual national under Japan's law at the time he was born had his mother been a Japanese woman married to a British subject.

What I most realized when talking with John, though, was how lucky we were -- the plaintiffs in the Shapiro and Sugiyama law suits -- that the executive editor of the Japan Times at the time was someone who understood what nationality was -- and knew exactly the importance of children of international couples to have access to the nationalities of both of their parents -- even if at times it can be inconvenient.

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Constitution v. Nationality Law

2007 introduction to 1981 article

A lot was happening in the spring of 1981 when the Tokyo District Court handed down its decisions in Shapiro v. State and Sugiyama v. State. Personally I was committed to finishing a doctoral dissertation by the fall of 1982. I had missed the first deadline in 1980, and its writing had taken a back seat to a translation of a book on suicide, and to Sugiyama's hospitalization and loss of a fetus that would have been Saori's first brother (Tsuyoshi was not born until 1982, the year I finished the dissertation).

Still, I had time to write -- and polish -- a long, three-part article on the nationality cases and the first decision. I wrote the article in English and parts were translated into Japanese.

I had started making a final draft of the dissertation on a CPT dinosaur that could store a whopping 256 kilobytes on a double-side, single-density 8-inch floppy disk, just acquired by the school that employed me. But I wrote this nationality article at home, on a Praxis electric typewriter that ran a bit sluggish on 100-volts at 50-cycles.

The copy I have is a machine copy of a typescript. The copy shows white-out and other corrections that had been made on the original, and white-out and other corrections made directly on the copy. It was, evidently, my master correction copy.

Self-spiked manuscripts

I recall that I wrote the article for serial publication in The Japan Times. I was constantly meeting media people, and knew several people at The Japan Times, including Kiyoaki Murata, then the executive editor. If memory serves me correctly, though, I had not talked with anyone about the article -- and, after going to all the trouble to write it, decided that it was not what I really wanted to say.

Attached to my correction copy of the English version is the original copy of a partial Japanese translation in Sugiyama's hand. Only the first part and the first paragraphs of the second part were translated, in blue and black ballpoint. My heavy-handed red ballpoint corrections, in Japanese, end after the first page.

I was probably already vacillating and, realizing my mind was not yet sufficiently clear and settled, told myself it wasn't the time to write at such length about the case. When something I am writing doesn't set well with me, I tend to put it aside. I have several binders full of self-spiked manuscripts like this.

Impressions today

Reading the article today -- a quarter of a century later (sounds longer than "25 years later") -- several things strike me as having not changed in my attitude.

1. The cases were about "nationality" and not "citizenship" -- though elements of citizenship are obviously affected by nationality status.

2. The cases were about gender, not racioethnic, discrimination.

3. The cases exposed the incompatibility of family registers, as national registers, with the needs of multinational families.

Certain other aspects of my approach and viewpoint at the time are somewhat different today. Today I understand a bit more about how nationality laws work generally. I also understand more about how judges in Japan approach cases generally, and how they argue points of contention in constitutional cases involving major national laws particularly.

I was, at the time, deeply involved in a study of suicide and funeral sacrifice in early Japan. My academic training encouraged me to view present-day social issues in a dynamic historical perspective that was anthropological in the broadest sense of the word.

The critical bite to the article's academic stiffness reflects its op-ed pretensions. One of its aims was to document the case for the benefit of the media, and to clarify what it meant for me, Saori, Sugiyama (Tsuyoshi, it seems, had just been conceived).

Practically everyone, who had written or broadcast about the case, had distorted both the personal particulars and the legal issues. Yours truly was determined to set the record straight. He still is -- but in his own mind first.

In any event, here are my thoughts at the time -- not a word changed.

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Constitution v. Nationality Law (Part 1)

Patrilineality: Maternal Bods Inferior?

By William Wetherall

8 May 1981 (Corrected and revised 16 May 1981)

Caution This article is posted for historical purposes only. Its description of nationality acquisition, dual nationality, naturalization, alien registration, and other matters reflect conditions in the early 1980s. See more recent features for details on present-day conditions.

Most societies in the world have been both patrilocal and patrilineal. That is, the woman who marries is usually expected to move into her husband's family, while the children become his -- not hers -- and are identified with his family. In such a marriage system, the woman may be little more than a domestic servant who, in addition to doing the housework, bears and raises her master's children.

There are, of course, a number of exceptions. In early Japan, for example, some aristocratic families were duolocal if not matrilocal, and there have been cases of matrilineal succession in the imperial family. Duolocality was found among the families of certain remote villages in Japan as late as the early Meiji period, while matrilocality continues today in cases where a man is adopted into his wife's family. In general, however, the Japanese family system has been more of the corporate than consanguineous type, although blood ties have also been strong.

Naming customs have also varied. But the family system today continues to requires that all members in the same family bear the same family name. The name is that of the family, thus when an individual moves from one family to another, one's family name must change. The fact that most women move into their husband's family and take his family name is a matter of custom, not law. By law, the man may become a member of his wife's family and assume her family name.

Japan's patrilineal Nationality Law and patrilocal Immigration Control Law, however, discrimination against the internationally married Japanese woman, her foreign husband, and their children. Moreover, according to the Family Registration Law, while the fact of her marriage to a foreign husband must be recorded in her family register, neither spouse can adopt the other's name, and the births of their children cannot be recorded in their Japanese mother's register. From the point of view of all three laws, maternal bonds are considered inferior.

The Nationality Law in effect gives the internationally married Japanese man the right to transmit his nationality to his children, and likewise gives his children the right to acquire his nationality through birth. But these reciprocal rights are denied the internationally married Japanese woman and her children. Moreover, the law discriminates against the Japanese woman by making naturalization more difficult for her foreign husband than for the foreign wife of a Japanese man.

The Immigration Control Law -- or more correctly the administrative guidelines that Immigration Bureau officials apply to visa applications -- discriminates against the internationally married Japanese woman by not relaxing residence requirements as much for her foreign husband as for the foreign wife of a Japanese man. There is no spouse visa for either sex of foreigner married to a Japanese national, but the female foreign spouse is accorded what amounts to special status as the wife of a Japanese man, and it is comparatively easy for her to get a permanent residence visa.

Such practices of sexual discrimination exist in Japan despite the fact that the Constitution unreservedly guarantees that all Japanese nationals shall be equal under the law regardless of sex. As the Constitution is the highest law of the land, one would think that either the Nationality Law is unconstitutional -- or the Constitution has no meaning. Unfortunately, it appears to be the latter.

My wife and our daughter have explicitly challenged the constitutionality of the Nationality Law -- and implicitly questioned the legality of immigration and family registration practices. My wife -- a Japanese national -- believes that she has the right to transmit her nationality to our daughter through birth, and that our daughter has the reciprocal right to acquire Japanese nationality through birth. We both feel that our daughter has been Japanese from the moment she came into this world, and we have always acted on this assumption.

Our daughter has a right to my American nationality, and her birth as an American national and her birth as an American national has been registered at the American Embassy in Tokyo. But we also regard her a Japanese national and thus have not registered her as a foreign national in accordance with the Alien Registration Law. Her acquisition of American nationality through birth is of no concern to the Japanese government so long as she is also a Japanese national. As a dual national, Japanese law would recognize her as Japanese.

Believing that our daughter is Japanese, we attempted to register her birth at a certain city hall and have her name recorded in my wife's family register. The clerk refused to comply with our requests, however, and cited the patrilineal criterion of the Nationality Law as the reason. We requested and received a formally written statement of the reason for refusal, and with this and the rejected birth certificate as evidence of the act of sexual discrimination under the law, we filed suit against the Japanese government in late December 1978. Thus my wife and our daughter became co-plaintiffs in Sugiyama v. Japan.

The first trial, in the Tokyo District Court, lasted two years and three months. It would have run over three years for us had not another couple -- through the same attorneys -- filed a similar suit a year earlier. In this other case -- Shapiro v. Japan -- only the child, a stateless girl, became the plaintiff. But as the objectives and arguments were essentially the same, we were able to use similar briefs and supporting documents. Moreover, as our case was given to the same bench, we quickly caught up until both cases were parallel. And thus the decisions, though separate, were handed down on the same day in late March 1981.

The judgment was unfavorable -- something which we half expected. Japanese courts have ruled company policies unconstitutional because they discriminated against women. But generally speaking, judges have gone out of their way to avoid finding national laws unconstitutional.

This is precisely what happened in our case. The court observed that while patrilineality sexually discriminates, the discrimination is not "unreasonable" or "irrational" (fugōriteki) and therefore is not unconstitutional. The three judges found the discrimination "justifiable" for two reasons: (1) it is important that multiple nationality be prevented; and considering Japan's social traditions, domestic circumstances, and international relations, patrilineality has been the most effective means of minimizing its occurrence; and (2) to compensate for the discrimination engendered by patrilineality, naturalization criteria are relaxed for the children of Japanese women married for foreigners, thus making it easy for them to naturalize; and as naturalized Japanese they are legally equal to those become Japanese through birth.

The judges also expressed the opinion that, from humanitarian considerations, it is more important to prevent statelessness than to prevent multiple nationality, and that the present law should be revised with the aim of making it possible for the children of Japanese women married to foreigners to acquire Japanese nationality through birth. But the decision ruled that there were not sufficient grounds to regard either the transmission or the acquisition of Japanese nationality as a "right" (kenri).

My first impulse is to feel that the decision reflects the thinking of judges who politically sympathize with the Ministry of Justice and Diet, and who do not view human rights as something "guaranteed" by the Constitution. While I have no doubt in my mind that the decision was to some extent influenced by the fact that the judges are all males who have received conservative legal educations, it is more important to stress that their decision is grossly misinformed. The multiple nationality issue is merely a red herring, while naturalization is neither easy nor equal.

[to be continued in next issue]  

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Constitution v. Nationality Law (Part 2)

Multinationality: A False Concern

By William Wetherall

8 May 1981 (Corrected and revised 16 May 1981)

Caution This article is posted for historical purposes only. It's description of nationality acquisition, dual nationality, naturalization, alien registration, and other matters reflect the status quo as of the early 1980s. See more recent features for details on present-day conditions.

Japan's Nationality Law is the most common kind of such law in the world. Modeled after those of Western Europe, it is a jus sanguinis or "right-of-blood" law which adopts a patrilineal principle as its primary criterion. That is, a child becomes Japanese through birth if its father is Japanese at the time of birth. The law adopts a matrilineal principle when a child is born to a Japanese woman legally married under Japanese law to a stateless man, or when its father is unknown (as when its Japanese mother is not legally married to its father). Finally, the law applies a place-of-birth criterion in the case of a child born in Japan to stateless parents, or to unknown parents (as when it is found abandoned).

Only a few countries, mainly the British Commonwealth and American hemisphere states, have jus soli or "right-of-soil" (place-of-birth) laws. These laws are generally backed up by secondary right-of-blood laws, which are applicable in the case of a child born to a national residing in a foreign country. In the past, these back-up laws tended to be patrilineal when such a national was internationally married.

But thanks to a recent landmark decision in the Federal Republic of Germany -- in which FRG's patrilineal nationality law was ruled unconstitutional because it discriminated against internationally married FRG women -- the major Western European states have made their nationality laws egalitarian. Moreover, most of the back-up right-of-blood laws of the place-of-birth states are also today egalitarian. And the United Nations Convention on the Elimination of All Forms of Discrimination Against Women -- which Japan formally signed in 1980 -- requires that party states grant their women "equal rights with men with respect to the nationality of their children." The convention cannot be ratified, however, until the Diet makes the Nationality Law egalitarian.

So long as a married couple are of the same nationality, their children will usually be able to acquire their nationality regardless of the kind of nationality law adopted by their country of nationality. Most -- but not all -- problems arise when the parents bear different nationalities in what is popularly called an "international marriage" but which is better understood as a "multinational family" -- that is, a family which as a dingle social organization bears two or more nationalities.

Until recently, the nationality laws of many countries provided that the female national who married a national of another country automatically lost her won nationality if she acquired his through marriage, and the same countries usually conferred their nationality on foreign women who married male nationals. However, most countries no longer follow this "unity-of-nationality" principle and thus permit multinational families. The mononational family, however, continues to be the standard when one parent naturalizes in the country of the other parent, for if the children are of the same nationality as the naturalizing parent then they are usually naturalized with the parent.

National differences in nationality laws have inevitably resulted in a certain number of cases of multiple nationality. But as multinational families have increased, and as more states have become unwilling to prevent multinationality at the expense of basic human rights, the number of multinational individuals has also been rising.

This trend is viewed with some alarm by legalists who conservatively maintain that multiple nationality constitutes a threat to national security as well as a source of "positive conflict" for the individual and for the countries of which the individual is a national or resident. But the tendency is strong -- at least in the Euro-American states -- to accept a higher incidence of multinationality as a fact of life in a modern humanistic and global society, and to try to prevent or minimize the conflict that may arise from multinationality rather than the multinationality.

It is now widely recognized that the traditional ways of controlling multinationality have infringed upon the basic human rights of the internationally married woman and her children, and have socially handicapped the multinational family. The trend is thus to view multinationality in the individual as something that is not necessarily a disadvantage to the State, and may be beneficial to both the individual and the family.

Moreover, it has become a contradiction to permit multinational families in which parents bear different nationalities, but not to permit the children of such families to become multinationals through birth. It is thus becoming the standard to permit multinational offspring to remain multinationals at least until which time they become adults -- or otherwise encounter positive conflicts like tax or military obligations to two or more countries, or situations in which their multinationality makes it difficult to determine which nation's laws should apply to a personal legal problem.

The Tokyo District Court argued that some states do not allow their nationals to freely renounce their nationality. But practically all the countries whose citizens Japanese are most likely to marry -- Korea, China, America, and the vast majority of the others -- permit their multinational citizens to wilfully discard their nationality at which time they encounter positive conflicts they wish to avoid through renunciation. Article 22 of the Japanese Constitution, of course, gives Japanese the right to renounce their nationality.

For the individual born into a multinational family, the risk of positive conflict is extremely small compared to the great legal -- not to mention social and psychological -- advantages of being able to identify with and move freely between the countries of both parents. In focusing on multiple nationality as a legal problem, and in failing to stress the fact that multinationality does and should play a valuable role in the life of the individual born into a multinational family, the Tokyo District Court judges diverted the public's attention from the issue of patrilineality as a direct violation of the constitutional guarantee of sexual equality under the law.

The court decision also gave the impression that the Nationality Law has been effective in preventing multiple nationality. In fact, however, the Ministry of Justice has been interested in preventing multiple nationality only among the offspring of Japanese women married to foreigners.

Over the past decade alone, tens of thousands of children born to Japanese parents residing in place-of-birth states have become multinationals through birth. Thousands more have been born into the families of Japanese men married to nationals of states with either primary or secondary egalitarian right-of-blood laws. The sum of these two major sources of multinational Japanese -- which the Ministry of Justice has never attempted to prevent -- may equal or exceed the number of cases of multiple nationality that the government has argued it prevents through patrilineality.

The honne (true intention) behind the government's tatemae (pretense) is to prevent the offspring of Japanese women married to Korean and Chinese men, in particular, from become dual nationals -- a sexist as well as ethnocentric bias in the "insular politics" of Japan's Nationality Law. The Korean and Chinese laws are also patrilineal, so the government reasons that Japan has no choice but to discriminate against Japanese women married to foreigners.

That the Tokyo District Court judges in effect accepted the government's political arguments against egalitarianism in the Nationality Law suggests that they share the same conservative legal tradition out of which especially the "Japan-resident Korean" problem has evolved in the postwar period. In any event, the judges have left themselves open to the charge that they have taken textbooks on nationality theory too seriously. For apart from its highly politicized aspects, multinationality has never been a genuine legal problem in Japan.

[to be concluded in next issue]  

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Constitution v. Nationality Law (Part 3)

Naturalization: A Discriminatory Procedure

By William Wetherall

8 May 1981 (Corrected and revised 16 May 1981)

Caution This article is posted for historical purposes only. It's description of nationality acquisition, dual nationality, naturalization, alien registration, and other matters reflect the status quo as of the early 1980s. See more recent features for details on present-day conditions.

While my surname is Wetherall, my wife's family name is Sugiyama -- at least under Japanese law. We are often asked why, for practically everyone assumes that the legal family name of a married couple should be the same. The problem is that our marital relationship, though legal under Japanese law, does not warrant us the status of a family. There is no provision in the Family Registration Law for treating the foreign spouse of an internationally married Japanese national of either sex as a member of the national's family. The reason for this is that only Japanese nationals can be members of a family register -- for the family register also serves as a national register.

A family register is essentially a record of vital events that occur within the family -- whether the "family" consists of one or several members. These include events of association through birth, marriage, and adoption, and events of disassociation through death, divorce, and branching. But the family register also serves as a national register -- that is, as a register of Japanese nationals -- and hence all members of a registered family must be Japanese. In other words, being a member of a registered family is tantamount to being a Japanese national. As a national register, association may also occur through the acquisition of Japanese nationality through naturalization, while disassociation may occur through renunciation.

The name of a foreign spouse of a Japanese national is entered in the national's family register for information purposes only, when the fact of the national's marriage is recorded. In the case of a Japanese man married to a foreign woman, however, the couple's children are recognized as Japanese -- even when they also acquire their mother's nationality -- and thus their names are entered in their father's family register as members of his family.

But when a child is born to a Japanese woman legally married under Japanese law to a foreigner who is not himself stateless, not even the fact of the child's birth is recorded in the mother's family register. The birth will not be recorded in her register even when (1) the father, though he has a nationality, is functionally stateless because he cannot transmit his nationality to the child, or (2) the woman's foreign husband has been missing many years but cannot be proven dead or reached to secure a divorce, and the woman -- bearing a child fathered by another man (who may be a Japanese national) -- is functionally (though not legally) single.

As already stated, a child born to a Japanese woman who is not legally married under Japanese law can be registered in its mother's family register even if its father is a foreigner with whom its mother is cohabiting at the time of its birth. Moreover, the child will remain Japanese and a member of its mother's family register even if its parents later marry under Japanese law. Depending on the nationality laws of its father's country of nationality, and of the country in which it is born, the child may become multinational.

Such problems are in no way limited to the "non-families" of Japanese women married to foreign men. No one becomes Japanese automatically -- even when both of their parents are Japanese and they are born in the Imperial Palace. Unless a child's birth is registered within two weeks following delivery, the child may become stateless.

When a child is born to a Japanese couple residing in a country with a right-of-blood nationality law like Japan's, the child will usually become stateless if the birth is not registered at a Japanese consulate within two weeks. If born in a place-of-birth country, the child will acquire that country's nationality -- but not Japanese nationality unless the birth is registered within two weeks.

A few Japanese couples have found this out the hard way. One such couple did not know that their child, born in America, was not Japanese until they returned to Japan and were going through immigration procedures at the airport. They tried to get the child registered in their family register, but could not -- and thus found themselves the biological parents of a child that the Japanese government considered a foreigner. While in Japan they had a second daughter, which they promptly registered -- only to discover that the child was regarded as their first daughter. According to the family register system -- which doubles as a national register system -- their first daughter did not exist in their family. And hence their second daughter had to be registered as their first and only daughter. The couple thus became the parents of two first daughters -- the older an American who did not exist in their family register, the younger a Japanese who did.

Many other examples could be cited to show the essential impracticality and outright irrationality of Japan's family-register cum nationality-register system. Such a dualistic system clearly fails to accommodate the needs of an increasingly mobile world community in which not only more Japanese nationals are marrying internationally, but more Japanese parents are bearing and raising their children in other countries.

The couple in the above case were so distressed by the treatment they received under the outmoded laws of their own country that they immigrated to America, naturalized there, and renounced their Japanese nationality (which they had to do as a condition of naturalization). Their alienation is comparable to that of the Japanese woman who is told by a court in her own country that the discrimination in the Nationality Law is "reasonable" and thus not unconstitutional -- that if she really wants her child to be Japanese, she will have to recognize it as a foreigner, and then naturalize it and adopt it into her family register.

The internationally married Japanese woman has every reason to feel that she is being treated as a second-class citizen in her own country, and that the patrilineal criterion of the Nationality Law excludes her from "All of the people" clause in Article 14 and other relevant articles of the Constitution. For judging from the "reasoning" of the Tokyo District Court's decision, it appears that the Constitution was not really meant to guarantee equal rights under the law to the internationally married Japanese woman, much less her children.

Contrary to what the decision maintained, naturalization does not result in equal status much less treatment under the law. The very process of naturalization is discriminatory -- for the children of Japanese men married to foreign women do not have to naturalize in order to become Japanese. Moreover, those who become dual nationals through their mother's foreign nationality are not required to renounce this nationality as a condition for retaining their Japanese nationality. But were our daughter to be naturalized, she would have to give up her right to my American nationality. Moreover, there is no guarantee that her petition for naturalization would be accepted unless I also naturalize.

Throughout the naturalization procedure, our daughter would be treated as a foreign national -- and my wife would be symbolically regarded as a non-Japanese. Should our daughter's petition be accepted and she acquire Japanese nationality, the fact of acquisition would be entered in my wife's family register in the course of registering our daughter as a member of the register. But this entry would be essentially different from the entry made in the case of the child who acquires Japanese nationality through birth. Indeed, the entry would always identify our daughter as a "naturalized citizen" and invite many forms of social discrimination, particularly in employment and marriage.

The District Court judges entirely overlooked such important factors -- evidence to me that they have little firsthand knowledge of sexual and social discrimination in Japanese society. Hopefully, the High Court and Supreme Court judges will be more experienced and better informed, but most importantly -- more humanistic.

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