Article and author

Author

Shao Dan -- aka Dan Shao -- is a professor in the Department of East Asian Languages and Cultures at the University of Illinois, Urbana-Champaign. She is also associated with the an interdisciplinary academic program called Gender & Women's Studies. Her specialities are "Borderlands (with a focus on Manchuria/Northeast China), Ethnicity (with a focus on Manchus), Sino-Japanese relation, legal history of Modern China" according to her profile.

Shao studied ethnicity, gender, and state formation in Manchukuo in the Department of History at the University of California, Santa Barbara. The title of her PhD dissertation, submitted in 2002, was "Ethnicity in Empire and Nation: Manchus, Manzhouguo, and Manchuria (1911-1952)".

Shao has written a number of articles related to her fields of interest, including "Princess, traitor, soldier, spy: Aisin Gioro Xianyu and the dilemma of Manchu identity" in Mariko Asano Tamanoi, editor, Crossed Histories: Manchuria in the Age of Empire (Honolulu: University of Hawai'i Press, 2005). She is writing a book with the working title "Borderlanders in Empire and Nation: Manchus, Manchoukuo and Manchuria (1909-1985).

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Genesis

Shao's interest in definitions of Chinese, from the standpoint of nationality, clearly stems from her studies of Manchuria and Manchoukuo. Her interest in Japan appears to be limited to Japan's imperial adventures, especially in parts of Asia she associates with one or another China.

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Scope

Shao promises in her title to talk about "nationality, jus sanguinis, and state succession" in relation to being "Chinese by definition". Her use of "nationality" as a state affiliation, to be differentiated from "citizenship", is commendable.

Shao's focus on jus sanguinis is understandable given that she wants explore the implications of the "bloodline" standard in the nationality laws of "China". China's nationality laws, like those of other countries, have also had jus soli or right-of-soil (place-of-birth) rules, and rules for gaining nationality through relationships like marriage, adoption, and naturalization, among other ways of becoming Chinese -- all of which appear to have resulted in being "Chinese" by legal definition.

As legal terms, "nationality" and "jus sanguinis" are fairly easily defined and grasped, but "state succession" is very slippery. Shao speaks in one breath of "Three major periods of state succession in twentieth-century China" as having "witnessed legal disputes and personal dilemmas over nationality and loyalty by bloodline: the Qing-ROC transition in 1912, the foreign colonization of Manchuria, Taiwan, Hong Kong, and Macau beginning in 1842, and the ROC-PRC constenation after 1949" (Page 19). Apart from the curious periodization, only the creation of Manchoukuo in Manchuria in 1932, and the mutual claims of ROC and PRC to "China" from 1949, constitute "state succession" issues in the ordinary sense of this expression.

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Value

Shao's article is one of several written in English over the past century to attempt to illuminate both customary and statute nationality law in what she calls "twentieth-century China". There is a lot of detail in her article, but some of it is unclear or misleading. The line between fact and opinion is more than a few times obscured by her preference for flashy and fashionable academic phrasing to clear prose, as shown in the following lines from her conclusion (page 26).

Something like this would have been both clearer and closer to the truth.

"China" needs to be understood as a plurality of entities, at least since 1949, when two states have claimed the right to rule the entirety of what has been singularly "China" in the eyes of the United Nations since the UN's formal start in 1945. "China" was also a plural entity between 1940 and 1945, when Japan recognized the National Government in lieu of the government of the ROC. In fact, at any given time before, throughout, and since the 20th century, there have been various "Chinas" in terms of recognized borders if not also in terms of divisions of authority within the country's undisputed borders.

The same would have to be said of "Chinese nationality" as an attribute of affiliation with "China" as a state or state-like entity. Nationality conflicts arise between states that claim the loyalties of the same individual or the inhabitants of same territory. Shao's article is mostly about conflicts between one or another "China" and another state, though there are also nationality recognition issues between, say, two states which claim the same territory and people.

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Writing

The following two paragraphs come at the start of a section titled "Jus Sanguinis, Loyalty, and State Succession", which sets up Shao's Conclusion (page 19, underscoring mine).

As writing goes, the above paragraphs flow well enough. The problem is, the complex skeleton Shao attempts to construct from the fragments of bone she finds scattered across a century or two of Chinese political, legal, and social history remains disjointed. The anatomy of her periodization, too, is shaky.

Presumably what happened "within one or two generations in a typical Chinese family" was what happened between 1912 and 1949. The placement between these benchmarks of "the foreign colonization . . . beginning in 1842" is odd.

"1842" is the year the Opium War ended and China signed a treaty that gave Britain, the victor, extraterritorial rights in several treaty ports, and perpetual rights over the island of Hong Kong, which British forces had occupied during the war. Portuguese had been in Macau since the 16th century, and Portugal obtained perpetual rights over the port in 1887.

China ceded Taiwan to Japan in 1895. Parts of the island had been under various flags since the 17th century. China's ability and willingness to establish full control and jurisdiction on the island, especially over its mountainous eastern half, then inhabited by native tribes, had always been tenuous, and had sparked a number of international incidents in which the Ching (Qing) government had failed to take sufficient responsibility as a state. One such incident, in 1871, had provoked Japan to send a punitive expedition in 1874.

China ceded the Liaotung (Liaodong) peninsula to Japan in 1895, but by the end of the year Japan had been forced to retrocede the territory to China. By 1898, Russia had forced China to lease it the peninsula, in addition to the railway concessions it had contracted in 1896. And in 1905, after the Russo-Japanese War of 1904-1905, Russia transferred to Japan both the leasehold and its railway rights and other assests. China's ability to control and exercise jurisdiction in other parts of Manchuria, which became Manchoukuo in 1932, was less than what was required and legally expected of the state that claimed them.

Moving borders and people

Given Shao's own research and writing on both Manchuria and Taiwan, she could not be unfamiliar with such details, and she would probably spot a few shortcomings in my own sweeping overviews of their recent political histories. Yet I find the manner in which she has hinged the beginning of "foreign colonization" of these regions on the year 1842 ingenuous.

One could just as well view China's involvement in Taiwan from the 16th century as an act of "colonization" -- beginning with rule by Ming dynasty loyalists, who had taken refuge from the continent when Manchu conquered China, followed by rule under the Manchurian Ching (Qing) dynasty. The animosity in certain quarters of China toward "Manchurians" was still, by Shao's own admission, a divisive factor in "nationalist" considerations of how to reform the "Manchurian" dynasty into a "Chinese" state.

Shao recognizes that changing borders and migrations across borders complicate matters in all states. She does not, however, explain why their "social consequences and legal paradoxes" have been more "complicated" in China that, say, Japan. Much less does she explain how concerns about "filial piety" could possibly have mattered in China if China did not value "bloodline" at least as much as, say, Japan did -- or why legitimacy in China was more closely linked with "continuity of sovereignty" and "territorial unification" than it was in other states, such as Japan.

Flaws in article

Shao's article has several other problems that disqualify it as a definitive statement on nationality issues in China much less state succession related to China.

1. Misleading statements

Shao's descriptions of particulars in Chinese nationality laws over the decades are at times so imprecise that readers not already familiar with the provisions of the laws she refers to will be confused or misled. Her citations of various nationality laws are truthful to the point they become partial truths. And the omissions turn out to be important. In legal history, law comes first, and one cannot be too concise and complete when citing the truth, the whole truth, and nothing but the truth of the laws themselves.

2. Limited use of sources

Shao's use of numerous Chinese sources is laudable, but the use of Chinese sources does not itself translate into a correct understanding of facts, much less an accurate description of correctly understood facts in English. It may not have been her intent, in this article, to introduce and comment on previous English studies of essentially the same issues. But why did she not even mention the most lucid and detailed overview of "Nationality in China" in English -- which was in the same book containing an article on Korean nationality she mentions in a footnote?

Given the fact Japan's 1899 Nationality Law inspired early 20th-century state affiliation laws in both Ching (Qing) China and the Empire of Korea, it would seem incumbant that Shao have made a firm understanding of Japan's early nationality laws her first priority -- by directly reading and studying Japan's laws -- whether in Japanese, which she seems able to read, or in accurate English or even Chinese translations. But apparently she made no effort to use such sources.

3. Mischaracterizations of Japan

Shao's passing remarks about Japan's nationality laws reflect the popular view that Japan adopted a jus sanguinis standard of nationality for "ethno-nationalist and even racist" reasons to facilitate the definition of an "exclusive nationhood". China, she correctly observes, adopted essentially the same basic provisions in Japan's earliest Nationality Law for acquisition of Chinese nationality at time of birth -- but she contends that China's motives were different.

Her characterizations of China's motives are based on actual attempts to determine status under China's laws. Her characterizations of Japan's motives, however, are based on secondary and tertiary opinion and commenary rather than on Japan's laws and cases of how they operated domestically and internationally.

Like most people who impute ethnoracialist motives to Japan's nationality rules, Shao shows no evidence of having directly studied the evolution of Japanese status laws during the Meiji period, how they were used to determine who qualified as a subject and national of the Empire of Japan, and with what consequences on those considered to be Japanese. This is unpardonable in an article that makes the sort of second-hand racialist allegations she has made.

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Shao on nationality in China

"historical borderlanders" (Shao 2005)

The article under review here was several years in the making. Shao presented an earlier version -- called "Chinese by Definition: The Making and Practice of Nationality Law, 1909-1980" -- at the Annual Meeting of The Association for Asian Studies, held in Chicago from 31 March to 3 April 2005, reporting as Dan Shao, then at Ohio University.

Shao's conclusion in the abstract of her 2005 report was as follows (AAS website, underscoring mine).

This observation is true enough -- up to the point at which Shao alleges that definitions of who is Chinese "still" have impact on "historical borderlanders" at the turn of the 20th to 21st century.

In 1997 Hong Kong, and in 1999 Macau, formally reverted to the qualified control and jurisdiction of the People's Republic of China. PRC's Nationality Law now reach both territories, which as Special Administrative Regions issue their own versions of PRC's passport.

Taiwan, and a few associated and nearby islands, are under the control and jurisdiction of the Republic of China. PRC claims these territories, but ROC is not reached by PRC's laws. Not only does ROC not view its nationals as "borderlanders", but not a few ROC nationals do not view themselves as having been "Chinese" under any definition of "Chinese" emerging on the continent, imposed on them by continental entities.

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"inherent paradoxes" (Shao 2009)

The abstract of Shao's 2009 has echoes of the 2005 article but concludes on a very different note (page 4, underscoring mine).

The word "paradox" is puzzling because I do not get the impression from Shao's article that jus sanguinis practices in China have been particularly puzzling. If anything, her own (and, before her, Chiu's and other's) illuminations of the various ways jus sanguinis has been practiced in China -- under the Ching (Qing) government, then the Republic of China (ROC), and now (differently) in ROC and the People's Republic of China (PRC) -- explain what might may appear, at first glance, to be inconsistent, but which are structurally related and hence quite scrutable.

I speak of "various ways" because the principle of jus sanguinis is not a singularity. Right-of-blood can be based on family lineage (descent through mother and/or father) and/or racioethnic lineage (descent from a biologically defined racial or ethnic population). Japan's nationality is determined by family lineage with no regard for race or ethnicity, while membership in a Native American tribe, for Federal US government purposes, is based on having a certain quantum of Native American blood.

Both jus sanguinis wrinkles are further wrinkled by considerations of gender (patrilineal, matrilinial, bilineal, ambilineal) and generation (degree of relationship). They may also be conditioned by considerations of place of birth and domicility. In the case of a child born outside a state with primarily jus sanguinis rules, the rules can be constrained by whether the affiliated parent or parents are legally domiciled in the foreign state, and whether the child also stands to gain the foreign state's nationality.

All such wrinkles are subject to different interpretations in the minds of law enforcers who have to interpret and apply customary and statute affiliation laws from their vantage points -- and in the eyes of judges who, in courts of law, have to resolve conflicts of interpretation between concerned parties, whether two states, or a state and an individual.

Even jus soli (right of soil) rules can be convoluted in ways that would make them seem "paradoxical" in the eyes of those who do not understand the wrinkles. Too many writers overlook the fact that jus sanguinis rules can be entirely raceless (Japan), while jus soli status rules do not prevent treatment based on race (United States).

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Nationality and citizenship

Shao correctly observes that "nationality" is not "citizenship". The basic reasons she gives for making the distinction are correct enough -- though her rule of usage leads to difficulties she does not acknowledge.

She claims to use "nationality" in the case of Chinese law because "the official English versions of all the Chinese nationality laws use the term 'nationality'" (note 3, page 5). Yes -- but.

The English version of PRC's Nationality Law uses "nationality" to translate "guójí" (國籍、国籍) -- which is equivalent to "kokuseki" in Japanese, "kuosik" in Korean), and "quốc tịch" in Vietnamese. These linguistically related terms are fully in concert with international law and its regard for "nationality" as a civil affiliation with a state that one either has or does not have -- regardless of what rights or duties a state may associate with the possession or not of its nationality.

However, the "official English version" of PRC's law that Shao cites uses "nationals" to translate 公民 (gōngmín), which actually means "citizen". DPRK and Vietnam, as socialist states, use equivalent Korean and Vietnamese terms, rather than equivalents of what in Japanese and ROC laws are written 國民 or 国民 (Japanese "kokumin", Chinese Wade-Giles "kuomin", Chinese Pinyin "guomin").

The problem with "nationals" in the case of PRC, DPRK, and Vietnam is that these three states consider their "people" (人民) as an entity apart from the state itself. Their "people" share a common "nationality" as a matter of state affiliation, but as their "people" or "popular collectivity" (人民) they are a "civic collectivity" or "citizenry" (公民) rather than a "nation" or "state collectivity" (国民) -- i.e., they are "citizens" rather "nationals" of the state.

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Born in China

Shao makes this remark about jus soli in Chinese nationality laws (page 5, and notes 3-4, pages 5-6, underscoring mine).

Shao appears to be differentiating the original Republic of China founded in 1912, the various governments that continued to rule in Peking from 1914 after fatal divisions in ROC's ranks, and the Republic of China refounded in Nanjing in 1927. But what are readers of "Twentieth-Century China" -- even those familiar with its political musical chairs -- to make of her statements about "in China" and "born in China" and "jus soli" in Chinese nationality laws?

By "Statute 3" -- to which "in China" was added in Article 1 of the 1909 law -- does Shao mean Item 3 of Article 1? If so, how does "in China" fit into her English version of Item 3 of Article 1, leaving aside the overarching "wherever they are born" condition in the main clause of the article?

From what in the 1909 law was "born in China" removed in the 1929 law? The 1929 equivalent of the same item -- namely, Item 3 of Article 1?

How can it be that PRC had no nationality law until 1980 -- since after claiming its sovereignty over China in 1949, it would have continued to observe the customary regard of state affiliation as mainly a matter of "bloodline" descent from a person considered to be Chinese?

What "elements of jus soli" did PRC "add" to the jus sanguinis principle that were not already in the 1909 and 1929 laws? Did Shao not notice that the jus soli provision of Article 6 of PRC's 1980 law is essentially like both Article 2 of the 1909 law and Item 4 of Article 1 of the 1929 law? Did she not notice that the jus soli provisions of the 1909 and 1929 laws were both subsumed under the "inherent" (i.e., "natural" or "through birth) possession chapters of these laws?

Did Shao notice that Items 1 and 2 of Article 1 of China's 1909 law reflect the same rules as Article 1 of Japan's 1899 Nationality Law? That Item 3 reflects Article 3 of Japan's law? And that Article 2 reflects Article 4 of Japan's 1899 law? And that Articles 1 and 2 of China's 1909 law were revamped as the four items of Article 1 of the 1929 law? That, with respect to these four situations, Japan's and China's laws were essentially the same mix of jus sanguinis and jus soli principles found in the majority of countries around the world -- then and now?

Flournoy and Hudson 1929

Shao's skeletal history of China's various nationality laws is factually flawed as she has presented it. ROC's 1929 Nationality Law did not -- and could not -- have done away with "born in China" in the articles on natural possession, meaning acquisition at time of birth. Article 1 made the following provisions, according to Flournoy and Hudson, editors, A Collection of Nationality Laws of Various Countries as Contained in Constitutions, Statutes and Treaties (New York: Oxford University Press, 1929, page 175).

The above volume was the English bible of nationality law at the time. My own copy bears a Library of Congress stamp and the signature of Warren Kelchner, a career US State Department official who acted as Temporary Chairperson of the Japanese Peace Treaty Conference in San Francisco in September 1951 (see review of Flournoy and Hudson 1929 above.

Shao, however, makes no mention of this book. It also contains a good description of the 1873 law, and a translation of the 1898 law, both on status changes related to alliances of marriage and adoption between Japanese and foreigners, and a translation of Japan's 1899 Nationality Law with its important 1916 and 1924 revisions. She would have done better to read Flournoy and Hudson 1929 on Japan's nationality laws, rather than depend on Chikako Kashiwazaki, whose writing varies in quality from good secondary to poor tertiary commentary (see below).

Chiu Hungdah 1990

Nor does Shao mention a very important article by Chiu Hungdah -- "Nationality and International Law in Chinese Perspective with (with special reference to the period before 1950 and the practice of the administration at Taipei)" -- in Ko Swan Sik, editor, Nationality and International Law in Asian Perspective (Dordrecht: Martinus Nijhoff Publishers, 1990, Chapter 2, pages 27-64). Chiu writes this about ROC's 1929 Nationality Law (page 41, underscoring mine).

Chiu Hungdah (邱宏達), aka Hungdah Chiu, was a law professor at the University of Maryland at the time he wrote the above article. He was legally trained in the Republic of China and had taught at National Taiwan University before earning an MA at Long Island University in 1962 and LLM and SJD degrees at Harvard University in 1962 and 1965. Shao could have picked up a few pointers about clarity and precision in legal writing from Chiu's article.

Shao's failure to mention Chiu Hungdah is odd given the following remark and footnote in her article (page 21).

Craven's article, Shao fails to note, was written in 2000. If, though, she had seen Chang Hyo San's article in Ko Swan Sik's 1990 book, surely she saw Chiu Hungdah's article in the same book. And surely she also saw, immediately before Chang Hyo San's article, Hosokawa Kiyoshi's long and very informative article, "Japanese Nationality in International Perspective" (pages 177-253).

Did she not like Chiu's or Hosokawa's articles? Did she find them contrary to the facts as she understood them? Or did they otherwise conflict with her understanding of nationality in China and Japan?

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Born in USA

If Shao had wanted examples of "paradoxes" in nationality laws, she could have done no better than consider the case of US v Wong Kim Ark, 1898. The US government attempted to exclude an American-born son of Chinese immigrant parents from US citizenship. By the time this case came to the Supreme Court, the United States had 120 years of essentially racist legal history, during which formal discrimination against non-whites regarded as "Negro" or "Indian" came to be augmented by formal discrimination against non-whites regarded as "Oriental". Never mind that one was "Born in the USA" -- race mattered in US laws.

Article 1 of the Constitution of the United States, as promulgated in 1789 stipulated that, for purposes of representation, free persons and persons whose years of servitude were bound by a numer of years would count as one person, whereas non-free persons with unbound terms of service would count as only three fifths of a person, and Indians not taxed were to be excluded. The 1790 Naturalization Act disqualified those who were not "free white persons of good character".

In 1868 -- the year Japan restructured itself as a state and set out to nationalize its territories and build a legal system that would be recognized by Euroamerican powers -- the US Constitution was ammended to regard "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" (Ammendment XIV). This thus repealed the distinctions Article 1, except that "Indians not taxed" continued to be a gray zone in US status laws.

The 1882 Chinese Exclusion Act, which had been extended in 1892, had encouraged some officials to argue, in US v Wong Kim Ark, 1898, that Wong Kim Ark did not qualify as a US citizen because, according to US laws, a person had a right to citizenship through birth in the United States only if "not subject to any foreign power". The Supreme Court ruled against the United States, but the bench was divided, which is not uncommon in cases involving confirmation of citizenship or nationality.

In the wake of Japan's defeat of Russia in the Russo-Japanesse War of 1904-1905, the "yellow peril" mood of the United States, especially in California, turned toward Japanese immigrants and their US-born American children. In 1919, the United States and some other countries rejected Japan's proposal to the League of Nations that it adopt a principle of racial equality. By the 1920s, the United States is in the throes of an anti-Oriental fit that caused it to treat its Filipino nationals as "aliens" for legal purposes from 1935.

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Dual nationality

Shao makes this observation about the application of jus sanguinis to "overseas Chinese" (page 27, underscoring mine).

This is very odd wording. PRC has no legal authority to "consign individual cases" to another state's laws. Like PRC, other states are sovereign with respect to their nationality laws, and their laws will apply regardless of how PRC choses to apply its laws. PRC has only the right to define the conditions under which it will recognize or not recognize its own nationality.

In the above case, what Shao means is that PRC choses not to apply its general jus sanguinis rule to a child born abroad to two PRC nationals -- if they are legally domiciled in the country where the child is born (as she seems to imply by "overseas Chinese") -- and if the child gains the country's nationality through jus soli under its laws.

But the conditions for PRC nationality in cases of a child born abroad are a bit more complicated. In a footnotes twenty pages before the above statement, Shao cited Article 5 of PRC's 1980 nationality law, which stipulates the rules that apply to children born abroad to a PRC national parent or to PRC national parents (see above).

Japan's 1899 Nationality Law, since its 1924 revisions, also had provisions for cases of children born in jus soli states to Japanese parents in those states. The 1950 Nationality Law continued to make similar provisions, and its 1985 revision introduce provisions requiring that Japanese with alien nationalities make a positive declaration of choice to retain their Japanese nationality. The declaration of choice involves also an abandonment of, and a promise to endeavor to renounce, their alien nationalities. Abandonment and renunciation are not the same thing, and because in principle Japan does not outlaw dual nationality, whether a dual national who has chosen to retain Japanese nationality loses another country's nationality is entirely at the discretion of the other country's nationality laws.

In the case of a child born to a Japanese parent outside Japan, who acquires a foreign nationality through birth, the parent must reserve Japanese nationality for the child in accordance with Japan's Family Register Law or the child risks losing it retroactively from time of birth. Reservation involves timely registration of the child's birth. But even when born in Japan, a child of a Japanese parent or parents must be registered in a timely manner in order to secure the Japanese nationality it is have through right of blood, meaning family lineage.

Ethnic clinging

One major difference between Japan's 1899 law and China's 1929 law concerned loss of nationality when naturalizing in another country. Japan's law provided that Japanese who volunarily acquired the nationality of another country would lose their Japanese nationality, whereas China's law allowed renunciation rather than mandate loss.

It appears, then, that Japan did not attempt to cling to its nationals as much as China. Given that Japanese and Chinese nationality were mainly gained through descent at time of birth, Japan may be seen to be less insistent on demanding loyalty simply because of descent. In other words, Japan's view of "blood" was not nearly as determinist as China's.

About three decades ago, I began using the term "ethnic clinging" to describe efforts by some Japanese to claim an ethnic affinity with Americans of Japanese descent, merely because of descent. The term very nicely describes the emotions that inspire the ethnonational embrace of people regarded as being part of racial "diaspora".

I strongly get the impression that, in the late 19th and 20th centuries, as Japan and China adopt nationality laws to determine the status of their subjects and nationals in the eyes of their own laws and the laws of other countries, China more strongly "clings" to persons perceived as its nationals on grounds of blood descent.

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Shao on nationality in Japan

"exclusive nationhood" (Shao 2009)

Shao remarks that "Within a short period of studying the existing laws of other countries, in 1909 the Qing court promulgated the first Chinese nationality law based on the Japanese model, a law based on the bloodline principle" (page 12). She begins a footnote to this remark with the observation that "Qing scholars had introduced Japanese legal codes on nationality law to China before 1909" and cites 1907 and 1908 Chinese sources (page 12, note 29).

Shao then makes this statement about Japan's nationality practices (page 13, underscoring mine).

Since "the Japanese" were not a sovereign people until after World War II, "they" could not possibly have "adopted jus sanguinis from the West to define an exclusive nationhood of Japan". The government of Japan observed various customary affiliation rules, and proclaimed some new rules, a quarter of a century before the emperor sanctioned the 1899 Nationality Law. Japan's early state affiliation measures had embraced all manner of people into its emerging nationhood by the time the Qing government got around to adopting its 1909 regulations -- including the inhabitants of Taiwan and the Pescadores in 1895, but also the inhabitants of other territories before this. Japan's "exclusive nationhood" laws also made provisions for the gaining of Japanese status by aliens -- regardless of their putative race or ethnicity -- that did not qualify for status under China's more restrictive laws -- such as foreign husbands of some Japanese women.

And why -- if Japan was not also motivated by the desire to perpetuate its nationality among all descendants its loyal subjects, including the descendants of subjects who had settled outside its borders -- did Japan chose not to provision renunciation in its 1899 law? And did provisioned renunciation only in 1916 when diplomatically forced to do so by the United States? And make the perpetuation of its nationality overseas more difficult in 1924, again only when pressured to do so by the United States?

Anyone reading either Flournoy and Hudson 1929 (see above) or Hosokawa 1990 (see above) could have figured out that Japan's nationality laws and practices were (1) relatively inclusive of people regardless of putative race or ethnicity, and (2) designed to perpetuate Japan's subjecthood and nationality, and thereby encourage actual or potential loyalty toward the imperial state, through males regarded as keepers of the nation's patriarchal and primogenitural.

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"ethno-nationalist and even racist" (Shao 2009)

Shao -- who implies that Japan, unlike China, adopted jus sanguinis to define an "exclusive nationhood" in the sense of "racial blood lineage" -- expands on this implication a few pages later (page 15, underscoring mine).

Shao cites hearsay to the effect that "ultra-nationalism or racism" were on the rise in Japan late in the 19th century. She could have cited Japan's actions leading to the Sino-Japanese War of 1894-1895 as nationalistic. And she could have argued that the territorial demands made in the Shimonoseki Treaty at the conclusion of this war constituted expressions of sheer imperialistic greed. But is there evidence of "racism"?

Shao is baiting the reader with impressions formed through commentary about the meaning of jus sanguinis in Japan's Nationality Law. She cites not a single provision in the law, or a single case in its application, that would show it to be anything other than a law that dovetails with household registration and family law practices that predate the sort of romantic ethnonationalistism that became popular in some quarters in Japan.

If Japan adopted jus sanguinis in order to preserve "the nature of Japan as a homogeneous nation", why did it immediately apply its 1899 Nationality Law to Taiwan, where it began to operate under the same conditions it had started to operate in the Interior? Namely, with the assumption that people in Taiwanese registers were already Japanese? That children born to parents in Taiwanese registers would be Japanese through the principle of patrilineal (if not matrilineal) jus sanguinis? That children born in Taiwan of stateless or unknown parents would be Japanese through the principle of jus soli? That alien women and even some alien men could become Japanese through marriage to a person in a Taiwan register? That alien children could be become Japanese by adoption into a Taiwan register, or by recognition, or through legitimation?

Household registration and "clan system"

Shao's translation of "kazoku" (家族) as "clan" is odd because the concept of "ie" (家) in Japanese laws defining status relations in households was clearly one of "family" as a small and discrete "corporate" rather than extended "clan" entity. Japan's family laws were much less "clanish" -- i.e., much less concerned with "bloodline" -- than family laws in either China or Korea.

Immediately after the paragraph cited above, Shao remarks that Chinese officials were "not trying to maintain the traditional household registration sytem" in China but were "reforming this system". Shao seems to imply that China sought more than Japan to "reform" its registration practices (see "Manchu" below for details).

Shao appears not to have noticed how radically Japan had reformed its registration system and related status laws since the creation of the first national family register system in 1872. Nor does she appear to have noticed that in 1909 -- when China was making changes in its census system "so unprecedented that they stirred up local resistance" (Shao 2009, page 16, note 43) -- the Empire of Korea, then a protectorate of Japan, was introducing, under the direction of Japan's Resident-General of Korea, a new people's register law which aimed to improve the quality of the Korean government's civil control over its subjects.

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"homogeneous nationhood" (Shao 2010)

Shao (as Dan Shao), more clearly states her thesis that Japan and China adopted jus sanguinis for essentially different reasons in a similar paper -- titiled "Redefining Chinese: Nationality Law, Jus Sanguinis, and Colonial/Post-Colonial State Succession (1909-1980)" -- presented on afternoon of 27 May 2010 at the annual meeting of The Law and Society Association held in Chicago from 27-30 May 2010 (Abstract as accessed through LSA website, of paper by Dan Shao, presented at session on "East Asian Law and Society -- Colonial/Postcolonial Law in Asia", underscoring mine).

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Manchus

Shao reviews the "Han-Manchu demarcation" within China and its implication for membership in the "Chinese nation". Here are some highlights from a few paragraphs that immediately follow her claim, following others, that at the time Japan enacted its Nationality Law in 1899, most Meiji leaders "had already embraced ethno-nationalist and even racist concepts of 'Japaneseness'" and their "perception of Japanese nationhood and the bloodline principle fit together harmoneously" (Shao 2009, pages 15-16, underscoring mine).

See "ethno-nationalist and even racist" (Shao 2009), above, for remarks about Shao's implication that Japan had not been reforming its household registration practices.

Shao also seems to imply that Japanese officials and others were not grappling with conflicting notions of Japanese nationhood. By 1909, however, Japan was already over a decade into its legal embrace of Taiwan -- and all its people -- as Japanese subjects and nationals -- not to mention its earlier nationalizations of Ainu, Okinawans, Ogasawarans, and others. Also by 1909, overseas Japanese subjects, especially in the United States, were the center of an intense diplomatic controversies over the parameters of Japan's nationality.

Shao's contraditions deepen (Shao 2009, pages 16-17, (parenthetic) remarks and italics Shao's, [bracketed ellipses and remarks] and underscoring mine).

Where is the "irony" in the embrace of the five "races" or "clans" or "nations" (族) by the Republic of China? Controversy of the kind Shao outlines is part of every "transitional era" however peaceful or violent. The founders of ROC -- never mind the "Han ethno-nationalism" and "anti-Manchu rhetoric" of some -- agreed, in principle, that its government would succeed the Ching (Qing) government as the government of "China" including Manchuria and its people.

And if the Manchu government, despite its maintenance of the "Manchu-Han demarcation", viewed its empire as "multi-ethnic", where is the "historical irony" in its embrace of jus sanguinis in China's 1909 nationality law?

I am also wondering if she noticed that Japan, from 1873, regarded everyone in its registers as having the status of "Japanese" (日本人 Nihonjin) without regard to their putative race or nationality.

And did she notice that -- while Japan's 1890 Constitution spoke of "subjects" (臣民 J. shinmin, C. chenmin), and while otherwise the "people of the country" were generally called "nationals" (国民 J. kokumin, C. guomin) -- Japan's 1899 Nationality Law (国籍法 J. Kokusekihō, J. Guojifa) determined qualifications for being "Japanese" (日本人 Nihonjin) as a raceless civil affiliation with the Empire of Japan? And that this law had been extended to operate in Taiwan within three months after its enforcement in the Interior? Hence the embrace of all people in Taiwan registers as "Japanese"?

Have not all states -- including Japan and China in the late 19th and early 20th centuries -- been motivated to embrace within their demographic "nation" all people they regard as affiliated with the territories over which they claim to have sovereign rights of control and legal jurisdiction? Regardless of the legal criteria they adopt for determination of affiliation? And notwithstanding how some states may differentiate status within their nationality?

Was China not essentially falling in step with Japan, which had already fallen in step with the dominant European powers? Was not China, like Japan, attracted to jus sanguinis mainly because it comported well with the traditions of patrilineal descent in its families? Not only families of its dominant Han population, but also those of its Manchu and other populations?

By the time ROC was embracing "five nations" within its empire -- and trying to "Sinify" (Hanize) those that persisted in being different and independent -- was Japan not embracing Chosenese and several categories of Taiwanese, and greadually "Japanizing" them as it had several other "non-Japanese" populations -- while recognizing their differences in both regional laws and policies? And were not anthropologists in the Empire of Japan also recognizing ethnological differences within Japan's national population, in academic studies and at world expositions?

More importantly -- Shao misses something important. China's 1909 nationality regulations appear to assigned certain people whose mother or father "were a China person [Chinese]" (為中國人), and certain people who "were born in China's [Chinese] territory" (生於中國地方), as "being affiliated with China's national register [Chinese nationality]" (屬中國國籍). Other than at time of birth, qualified aliens would "enter [China's national] register" (入籍) or "leave [China's national] register" (出籍).

Japan's 1899 Nationality similar provided that when the mother or father of certain children "was Japanese" (日本人ナル), or when certain children "were born in Japan" (日本ニ於テ生マレタル), would "be [regarded as] Japanese" (日本人トス). Later in life people would "acquire the nationality Japan" (日本ノ国籍ヲ取得スル) or "lose the nationality of Japan" (日本ノ国籍ヲ失フ).

For details of both laws, see 1899 Nationality Law and ROC nationality laws.

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Taiwan

Shao, who includes Taiwan in her Chinese "borderlands", later writes this in the 2009 article under review (page 18).

And still later she writes this about the Republic of China and Taiwan (page 23).

I have not left out any connective tissue regarding what Shao says about nationality issues and Taiwan. I suspect that readers of Twentieth-Century China who lack sufficient knowledge of the finer points of the political and legal history of Japan, China, and Japan-China relations -- from say the mid-19th to the mid-20th centuries -- will not understand what she is talking about.

Moreover, what Shao says about Taiwan leaves room for misunderstanding.

China, when ceding Taiwan and associated islands to Japan in 1895, accepted the terms under which Japan was free to regard inhabitants who had not left within two years as its subjects. It did not have to stated that Japan would also, as a matter of course, recognize as foreigners people with documents showing that they were subjects or nationals of another state. However, practically all people on Taiwan -- including those who could claim to be descendants of Chinese migrants -- were Taiwan-born and totally settled, and lacking the means if not also the desire to secure an alien status they had no recourse but to become Japanese.

Japan's extension of its 1899 Nationality Law to Taiwan did not make Taiwanese Japanese. As in the Interior (prefectures) of Japan, the law effected only the gain or loss of Japanese nationality after its enforcement date, applied on the assumption that people in Taiwanese registers were already Japanese. Customary family registration practices, and registration measures that began to be introduced from 1896, already determined status in registers.

Japanese nationality in Taiwan after 1895 (or no later than 1897) could have continued to be regarded as an effect of household registration practices -- as was the case in Korea and Chosen. Status as a Korean was determined by customary and statute population (family register) laws. And when Korea was annexed to Japan as Chosen in 1910, the same laws continued to determine status as a Chosenese, hence status as a Japanese subject and national.

Taiwanese and Chosenese were regarded as a Japanese because Japanese nationality is essentially based on membership in population registers that are territorially affiliated with Japan's sovereign dominion. The territoriality of a register -- whether a register is part of a territory within Japan's sovereign dominion -- trumps the jus sanguinis, jus soli, and other rules for gain or loss of register status.

Japanese nationality -- meaning membership in a Japanese register, territorially defined -- obliges allegiance to Japan. That is the whole point of nationality -- whether recognized through jus sanguinis, jus soli, derivation, naturalization, or other rules. Japanese, including Taiwanese and Chosenese, who were domiciled in the Empire of Japan, were directly reached by, and vulnerable to, imperial laws that obliged compliance with the state's expectations of loyalty -- including labor and military conscription laws, but also laws concerning subversion, treason, and lèse majesté.

Japan had the diplomatic right to protect the interests of nationals in other countries, but generally it was not able to compell their return to Japan, much less prosecute them in Japan for violations of Japan's domestic laws. China was in no different position with regard to its normal desire, as a state, to protect its overseas nationals in return for their loyalty.

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Facts about Japanese nationality

It has not, I admit, been Shao's object -- in any of her writing that I know of -- to compare jus sanguinis (right of blood) with jus soli (right of soli) states. But given the "ethnonationalist" and "racist" motives she imputes to Japan's 1899 Nationality Law -- and her effort to reduce China's adoption of the jus sanguinis rules of this law to a matter of maintaining "perpetual allegiance" in contrast with what she alleges to have been Japan's desire to maintain a "homogeneous nationhood" -- it appears that Shao has fallen into the same trap of numerous other writers who are under the false impression that jus soli nationality cannot be racist.

"soil" in "blood" laws and "blood" in "soil" laws

The problem with dwelling on the "blood" versus "soil" difference in the names of the two general principles of nationality attribution -- is that the judgment of whether "blood" or "soil" ultimately matters must be based on the extent to which the status laws of a "blood" state are tied to its "soil" -- as opposed to how much "blood" matters in how one is treated as a subject, national, or citizen of a "soil" state.

In Japan, nationality at birth was based primarily on raceless ties to a parent in a household register that territorially qualified as a Japanese register. In China, too, legal status as a Chinese, however much such status was perpetuated by "bloodline" family lineage, was still predicated on the line of descent going back to an ancestral home in China.

Of some interest here is the fact that Articles 4 and 5 of PRC's 1980 Nationality Law -- the main provisions for Chinese nationality through jus sanguinis at time of birth -- respectively stipulate "born in China" (出生在中國) and "born abroad" (出生在外國), while Article 6, the provision for jus soli nationality, stipulates "born in China" (出生在中國). Articles 4 and 5 condition jus sanguinis nationality on place of birth, domicile of parents, and foreign nationality acquisition by the child in order to minimize multiple nationality, which according to Article 3 is not recognized.

The "soil" under the "blood"

In Japan, while entry into a Japanese register at time of birth is primarily based on lineage rules, the critrion for whether those in the register are Japanese is based on soil, not blood -- i.e., the register is Japanese because the register is under the jurisdiction of a territorial polity within Japan's sovereign dominion.

The incorporations of all territories into Japan as a state since 1868 were followed by admissions of the people who came with the territories into Japanese subjecthood and nationality, whether these statuses were defined by customary law or statutes. The populations of all such territories -- beyond the three main islands of Honshō, Shikoku, and Kyūshū, and associated islands -- were nationalized through registration. People enrolled in population registers affiliated with Japan's sovereign dominion have been Japanese, regardless of their putative race or ethnicity.

The opposite is also true. That is, people in registers affiliated with territories that have been permanently separated from Japan's sovereign dominion have lost their Japanese status on account of the territorial separations -- most notably Chosenese and Taiwanese in 1952. Japanese nationality was only suspended for registrants of Okinawa while it was under the control and jurisdiction of the United States, as Japan retained residual sovereignty.

Quasi-alienation was also an effect of provisionally separating Okinawa, Chosen, and Taiwan (among other territories) from Japan's effective sovereignty when Japan surrendered to the Allied Powers in 1945, and until the disposition of these territories was finalized in the San Francisco Peace Treaty Peace in 1952. In other words, Okinawans, Taiwanese, Chosenese, and some other Japanese were treated under GHQ/SCAP rules as "Non-Japanese" -- meaning that, if they remained in Occupied Japan, they would still be nationals of Japan but would be treated as aliens for some purposes.

Developments in Japan's nationality rules

6th century to 1868   In the span these 14 centuries, which are fairly well documented, Japan systematically incorporated various populations within its expanding insular dominion, as well as many migrants, especially from Korean entities, but also from China and a few other other countries. People not already in the embrace of the Yamato government changed their allegience through registration in local communities.

1871   Family Register Law in effect defined state affiliation with Japan in terms of membership in a household register under the control and jurisdiction of a local polity (then mostly villages) within Japan's sovereign dominion.

1873   A Great Council of State proclamation provided clear and raceless provisions for gain and loss of status in a family register through in alliances of marriage or adoption between Japanese and aliens. The status gained or lost was that of being "Nihonjin" (Japanese). The rules were essentially based on the the same rules that governed status migrations of Japanese between household registers in such alliances.

These rules were generally compatible with provisions in the nationality laws of most of the states with whom Japan had signed treaties giving them extraterritorial rights in Japan -- including Great Britain and the United States. Japan's 1873 measure, for example, provided for changes in the status of a woman to that of her husband.

Unique in the 1873 measure, though, was a a provision that an alien husband of a Japanese woman could become Japanese through what amounted to husband adoption -- which conformed with husband adoption between Japanese registers. This was unheard of in European and American laws, which viewed nationality as a male preserve, since women were generally not allowed to vote.

For details see 1873 intermarriage proclamation.

As Chinese families are generally more concerned than those in Japan about "blood" generally and "paternal blood" specifically in the perpetuation of their lines -- China chose not to emulate Japan's more lenient rules for acquisition of its nationality through marriage and adoption.

1875   The Treaty of St. Petersburg, between Japan and Russia, had provisions for choice of subjecthood of "natives" (indigenous people, especially Ainu) of Karafuto, as to whether they would remain in Karafuto and be subjects of Russia, or relocate to Japan as subjects of Japan. Japan, which had had control of parts parts of Karafuto, had already begun to register some natives with the intent of incorporating the territory and its native population into Japan as part of Japan's dominion and nation. Registration was an essential factor in determining subjecthood.

1895   The Treaty of Shimonoseki, between Japan and China, which settled the Sino-Japanese War of 1894-1895, provided that the inhabitants of the territories China was ceding to Japan -- the southern part of Fengtien province (Liaotung peninsula, retroceded later that year), Formosa (Taiwan), and the Pescadores (Penghu) -- were free to stay or leave as they wish, during a two year period, after which Japan would have the option to regard them as Japanese subjects hence nationals. There were no racial or ethnic conditions.

1898 (16 July)   Japan enforces its first Rules of Laws, which determined applicable laws, especially in private matters. Article 1, Paragraph 2 provided that "Regarding Taiwan, Hokkaidō, Okinawa prefecture, and [certain] other insular lands [places] [that are part of Japan's sovereign territory], it shall be possible for [the government] to determine a special [specific] enforcement date by imperial ordinance" (my translation). The regionality of the listed entities derived from the fact that they were entirely or partly overseen by regional governments or agencies, unlike the prefectures of Honshō, Shikoku, and Kyūshū.

1899 (1 April)   Japan first Nationality Law comes into force. This law, as a prefectural statute, did not declare that anyone was Japanese, for people in prefectural registers were already Japanese subjects and nationals. Rather it began to operate as a codification of theretofore written and customary subjecthood and nationality laws and practices in determining the gain and loss of Japanese status of individuals from the time it came into effect.

1899 (21 June)   Nationality Law extended to Taiwan within three months after its enforcement in the prefectures. Taiwanese who remained inhabitants of Taiwan under the terms of the Shimonoseki Treaty had already become Japanese subjects, hence Japanese nationals, hence Japanese. The Nationality Law merely provided a broader and clearer standard for determining who would gain or lose status in a Taiwanese register, especially in terms of international status migrations, such as through marriage or adoption, or through naturalization.

1903   Private organizers of a "Human pavilion" (人類館 Jinrui kan) outside the grounds of the Fifth National Industrial Expedition (第五回内國勸業博覽會 Dai-5-kai Kokunai kangYō hakurankai) in Osaka planned to exhibit people representing "different races near the Interior" -- including some Ainu, Ryukyuans, Taiwanese, Chosenese, Chinese, Javenese, Indians, and Turkish. The Ainu, Ryukyuans, and Taiwanese were Japanese. A "Taiwan pavilion" (台湾館 Taiwan kan) within the grounds featured civil, commercial, and industrial achievements within Taiwan. Objections from the Chinese government, Korean visitors, and Okinawan newspapers resulted in the withdrawal of people representing China, Korea, and Okinawa, but the "live exhibits" of others continued.

1904   The Saint Louis World's Fair, which ran fom 30 April to 1 December 1904, featured a number of Ainu as a living exhibition of aborigines from Japan. Their participation was organized by an American anthropologist with the support of colleagues in Japan and approval from the Japanese government. Anthropologists generally regarded "Ainu" as a racial curiosity in Japan and viewed them as inferior to "Japanese" -- never mind that they traveled to the United States as Japanese subjects and nationals using Japanese passports. At the time, the Japanese race was widely viewed as a hybrid population, and Japanese anthropologists at Tokyo Imperial University and elsewhere took a measure of pride that Japan, like other world powers, embraced a few less civilized races that would benefit from the example of, and eventually blend in with, the more developed mainstream.

For details on the 1903 and 1904 expositions, see The Native Worlds Building.

1905   The Treaty of Portsmouth, which settled the Russo-Japanese War of 1904-1905, ceded Karafuto (southern Sakhalin) to Japan. The treaty made no provisions for choice of subjecthood on the part of Karafuto's Russian inhabitants, who were subjects of Russia. But those who remained, while receiving due protection of their industrial and property rights, would have to submit to Japanese laws and jurisdiction, and Japan would have the right to withdraw their right of residence and deport them. Japan immediately began to resume the registration of Karafuto natives (indigenous people, including Ainu, Orok (Uilta), and Gilyak (Nivkh) as its subjects.

1909 (March)   The Empire of Korea, then a protectorate of Japan, promulgates and enforces the Population [Affiliation] Law. This law, inspired by the Resident-General of Korea, Japan's government in charge of matters covered by treaties between Japan and Korea, codified rules for household registration. It reflected Korean family status laws, and also served, like Japan's Family Register Law, as a de facto territorial affiliation law.

For details see Affiliation and status in Korea.

1909 (28 March)   China promulgates its first nationality regulations (大清國籍條例 大清国籍条例 WG Dai-Ch'ing Kuochi, PY Da Qi Guoji Tiaoli. Political conditions result in the law not being very enforcible. The adoption of these regulations was provoked by a number of international issues involving people in other territories that had ambiguous Chinese statuses.

While issues between China and Dutch East Indies are usually considered the most pressing causes, in fact China had on-going disputes regarding its nationality with Japan on two fronts: Taiwan, which had been part of Japan since 1895, and the Empire of Korea, which had been a Japanese protectorate since 1905.

During the earlier years of the Meiji period, Japan had permitted a number of Chinese men who had settled in Japan to change their allegiance and become Japanese. And in 1895, over one hundred Chinese who had supported Japan in the Sino-Japanese War had been allowed to change their allegiance and migrate to the Interior. (Asakawa Akihiro 2002. See Becoming Japanese in the Meiji period.)

1909 (4 September)   China and Japan conclude a treaty concerning Manchuria, covering especially the status and treatment of Chinese and Koreans in Chientao. Koreans, though then defined as affiliates of the Empire of Korea on the Korean peninsula, had historically also inhabited the southern parts of what later become Manchuria. Drought and other conditions on the peninsula in late 19th had motivated cnsiderable migration and settlement in southern Manchuria ing to and settling, especially to the Chientao area of Manchuria immediately north of the Tumen (Yalu) river, where Koreans came to outnumber Chinese three to one. The 1909 treaty permitted Japan to establish consulates and branches of consulates in the area, defined as a "mixed residence district" (雑居区域、雑居地域), in order to protect and mediate the interests of "Korean" (韓人) settlers.

1910 (29 August)   Korea joins (is annexed to) Japan as Chosen and Koreans become Chosenese. Nationality issues in Manchuria multiply because China refuses to recognize Japan's claim that "Koreans" (韓人) or even "Chosenese" (朝鮮人) qualify as Japanese (日本人) under under the 1909 treaty are now "Chosenese" (朝鮮人) and other parts of Manchuria had become Chosenese subjects of Japan, and were therefore to be treated as Japanese under existing treaties with China.

1916   Japan is diplomatically forced by the United States to include a provision in its Nationality Law for renunciation of Japanese nationality. America had objected to Japan's view that, under its status laws, children born in other countries to Japanese residing abroad became Japanese, and hence dual nationals if born in jus soli states like America. The United States, not Japan, had problems with the actual or potential dual nationality of such offspring, which implied the possibility of loyalty to a heathen Oriental empire that, by then, the United States had come to regard not only as a territorial rival in the Pacific, but as a demographic "yellow peril" in both westcoast states and the territory of Hawaii.

1924   Japan is diplomatically forced by the United States, at a time when America has taken measures to exclude Orientals from immigration, to take additional measures against dual nationality by making it more difficult for offspring born to Japanese in jus soli states to be Japanese.

For details see 1899 Nationality Law.

History simply does not support Shao's indictment that Japan was more "ethno-nationalist and even racist" than China in its adoption of jus sanguinis as the primary criterion for determining its nationality at birth.

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