Separation and choice

Between a legal rock and a political hard place

By William Wetherall

First posted 1 August 2006
Last updated 21 January 2022

Prelude to nationality dispositions Sebald's 15 August 1949 "Status of Koreans in Japan" dispatch
1950 Nationality Law Callanan's 20 September 1950 transmittal to DOS • Hiraga's 1 June 1950 overview of 1950 Nationality Law • Hiraga 1950-1951 statements on "Chosenese and Taiwanese"

1952 Civil Affairs A No. 438 notification  The effects of territorial separations on nationality and registers
Expedited naturalizations  How Japan helped Chosenese and Taiwanese civil servants remain Japanese
Legacy aliens get permanent residence  How Japan treated nationality losers and long-term residents

Beware of what you wish for  Nationality recovery and choice -- of what, for whom, where, and with what obligations?
Rejected choice conventions 10 Sep 1919 Allied Powers and Czecho-slovakia • 10 Sep 1919 Allied Powers and Austria
Laterality Mitchell 1967 • Changsoo Lee 1971 & 1981 • Hicks 1997 • Weiner 1997 • Koshiro 1999 • Fukuoka 2000 • Kashiwazaki 2000 • Ryang 2000 • Yoneyama 2000 • Takemae 2002 • Ishikida 2005 • Soo im Lee 2006 • Wetherall 2006 • Morris-Suzuki 2007 • Chapman 2008a • Weiner & Chapman 2009 • Chung 2010 • Jones 2014
Race and nationality Chung 2010 • Dower 1999
Related article   Postwar nationality: Japan's bilateral talks with ROC and ROK

Prelude to nationality dispositions

The official position of the Allied Powers toward the legal statuses of Koreans (Chosenese) and Formosans (Taiwanese) in Occupied Japan -- as reflected through policies established under the Supreme Commander for the Allied Powers (SCAP) -- was essentially that Koreans and Formosans would be "non-Japanese" for purposes of repatriation and registration, but would remain Japanese -- i.e., Japanese nationals, people with Japanese nationality -- until they voluntarily returned to Korea or Formosa, or migrated to another nationality through legal procedures governed by a recognized diplomatic mission in Japan.

The status of Taiwanese in Japan

The terms of surrender, signed on 2 September 1945, embraced the 1945 Potsdam Declaration, which embraced the 1943 Cairo Declaration, which stipulated that "all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China." ROC, as one of the major Allied Powers in the war against Japan, received Japan's surrender of Taiwan and the Pescadores (hereafter "Taiwan") on 25 October 1945, and immediately began to integrate the territory as a province of China.

On 22 June 1946, the Executive Yuan restored Chinese nationality, retroactive to 25 October 1945, to all "overseas Taiwanese" -- meaning people with Taiwan registers wherever they might be residing outside Taiwan. The measure gave such Taiwanese until the end of the year to notify an ROC mission or representative of their wishes.

ROC, as an Allied Power, had a mission in Occupied Japan, where roughly 20,000 ROC nationals were residing. These were mostly Chinese who had settled in Japan before the war, some as long ago as the late 19th century. As ROC nationals, they were treated as United Nations nationals -- a virtual extraterritorial status in Occupied Japan which qualified them for food and other rations, and in some cases protection from Japanese courts.

SCAP of course permitted ROC's mission to enroll Taiwanese into its nationality. Thus most Taiwanese in Occupied Japan became Chinese, which qualified them as United Nations nationals -- referring to nationals of the Allied states that declared war on Japan on 1 January 1942.

When migrating to ROC nationality, Taiwanese in Japan relinquished their Japanese nationality. Whether they did so verbally is not clear. In effect, however, they began to be treated as ROC nationals.

While the language of the Cairo Declaration was strong, ROC recognized that Japan had legally acquired Taiwan in 1895 under the terms of the Shimonoseki Treaty, which provided that Taiwanese stood to be become subjects of Japan. And SCAP anticipated that ROC, as an Allied Power, would be party to a peace treaty with Japan, in which Japan would formally retrocede Taiwan to China and agree to mutually acceptable nationality settlements.

However, by 1951, when the Allied Powers and Japan began to negotiate a peace treaty, a new Chinese state -- the People's Republic of China (PRC) -- had been established on the mainland of China, and ROC had been driven into exile on Taiwan. Moreover, the Allied Powers were divided in their "China" recognition. Consequently, the San Francisco Peace Treaty provided only that Japan "renounces (放棄する hōki suru) all right, title and claim to Formosa and the Pescadores" (Article 2 (b)). The treaty did not designate a successor state or make provisions for nationality settlements.

Though practically all Taiwanese had already become ROC nationals, under in the eyes of Japanese law they would not formally lose Japan's nationality until 28 April 1952, when the terms of the Peace Treaty came into effect. On the same day, though, Japan and ROC signed their own peace treaty, in which Japan recognized that "For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendants who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)" (Article 10).

In a protocol attached to the treaty, Japan recognized that "the terms of the present Treaty shall, in respect of the Republic of China, be applicable to all the territories which are now, or which may hereafter be, under the control of its Government." As Japan had already renounced all rights over Taiwan, it could cede Taiwan to ROC, which had gained control over Taiwan when it received Japan's surrender of the territory. All Japan could do was to recognize that Taiwan was under ROC's control.

The status of Koreans in Japan

Koreans (Chosenese) in Occupied Japan did not receive the same legal treatment under SCAP, which represented the legal authority of the Allied Powers to oversee treaty-accorded changes of status related to enforcing the territorial transfers stipulated in or implied by the terms of surrender. The main reason SCAP could not treat Koreans in Japan the same way is that -- in the eyes of the Allied Powers -- there had been no Korean state to occupy and govern Chōsen following Japan's surrender of this territory.

Unfortunately, the Allied Powers divided Korea (Chōsen) into two occupation zones, north and south of the 38th parallel of latitude. The northern provinces were occupied by the Soviet Union, and the southern provinces by the United States. The Republic of Korea (ROK) was established in the American zone in the south on 15 August 1948, and 6 weeks later, on 9 September, the Democratic People's Republic of Korea (DPRK) was founded in the northern Soviet zone, thus ending the formal occupations of the peninsula but leaving it divided by two states, both of which claimed to be the legitimate government the "Korea" which the Allied Powers had "liberated" from Japan. However, the two Koreas had effective control and jurisdiction only over the provinces within their borders.

The San Francisco Peace Treaty provided that "Japan, recognizing the independence of Korea, renounces all right, title, and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet (Article 2(a)). The treaty regarded "Korea" (緒戦 Chōsen) -- as it regarded "Formosa" (台湾 Taiwan) -- as merely a territory that Japan had lost, without designating a successor state or making provisions for nationality settlements.

ROK as only successor government

By 15 August 1949 -- the date of William J. Sebald's dispatch on the "Status of Koreans in Japan" (see below) -- the United Nations, and the United States and a number of other Allied Powers, had recognized the Republic of Korea as the only legitimate Korean successor state. ROK claimed that it originated as the Provisional Government of Korea (PGK) in exile, formed in the thick of a liberation movement sparked on 1 March 1919, some 9 years after the Empire of Japan had annexed the Empire of Korea as Chōsen.

ROK also claimed that -- because PGK had declared war on Japan and contributed to the resistance against Japan -- ROK, as PGK's successor, should be recognized as an Allied Power. Apparently Sebald agreed with this, or perhaps for other reasons he proposed that ROK's Diplomatic Mission to Japan be permitted to attribute its nationality to qualified Koreans in Japan, who would then -- like Taiwanese who had migrated to ROC nationality -- qualify for treatment as United Nations nationals -- i.e., nationals of the Allied Powers.

However, SCAP's superiors in Washington, DC, balked at accepting Sebald's proposal -- and this appears to have been the main pretext for Sebald's "Status of Koreans in Japan" dispatch. As an historical document, though, the dispatch is more valuable for the manner in which it clarifies what would remain the status of Koreans legally residing in Japan for the duration of the Occupation.

Cold war developments

While Sebald was drafting the "Status of Koreans in Japan" dispatch, ROC was losing a civil war with the People's Liberation Army in China. On 1 October 1949, just 6 days after the dispatch, revolutionary communist forces in China established the People's Republic of China (PRC). And by December, remnants of the nationalist ROC government not already on Taiwan, and surviving ROC forces and a number of pro-nationalist civilians, had fled the mainland to Taiwan, and Chiang Kai-shek had declared Taipei ROC's temporary capital. Chiang would never return to the mainland, and in time Taipei would become the exiled government's permanent capital.

The United States continued to recognize ROC, which was one of the founding states of the United Nations, and one of the 5 members of the Security Council that had veto powers -- the others being France, the Soviet Union, the United Kingdom, and the United States. France and the United States continued to recognize ROC, but the Soviet Union (3 October 1949) and the United Kingdom (1 January 1950) recognized PRC.

ROC had been one of the "Big Four" Allied powers in the war against Japan -- with the United States and the United Kingdom from the start of the war, and with the Soviet Union by the end of the war. However, the Soviet Union and the United Kingdom opposed ROC's participation in the peace treaty, arguing that PRC should represent China. The political solution was to conclude a treaty without China -- ROC or PRC. In the end, the Soviet Union, unable to get its way in other matters, declined to join the treaty.

In the meantime, ROK and DPRK continued to vie for international recognition as the sole legitimate "Korean" state. The United States and the Soviet Union, which had divided and occupied the peninsula and backed the establishment of the two states in their respective occupation zones, continued to be divided over their "Korea" recognition as well as over their "China" recognition.

Later developments

Sebald could not have foreseen that, 10 months later, on 25 June 1950, DPRK would invade ROK, and the festering "cold war" would become a protracted "hot war". The Korean War would arouse powerful ideological fears about revolutionary communism in Japan, which would in turn affect SCAP, Japanese Government, and ROK opinion regarding how to solve the "Korean problem" in Japan. Though most Koreans in Japan were from provinces south of the 38th parallel, in ROK, it appeared that most support DPRK, north of the parallel.

As the war raged, the border between the embattled states kept shifting. Wartime "Korea" was the last place most Koreans in Japan would want to go. And ROK rivaled Japan as the last place in the world that wanted Japan's Koreans. Yet in the end, SCAP concluded that they were, indeed, "Japan's" Koreans. The communists among them may not have been welcome, but deporting them to ROK was not a political or humanistic option.

Koreans in Japan belonged in Japan, where most had been living when Japan surrendered to the Allied Powers on 2 September 1945. Most had decided to remain in Occupied Japan, partly because they heard that conditions on the divided peninsula were worse than in Japan -- but mainly, it seems, because they had settled in the prefectural Interior and brought or started their families there. By 1950, as many as half of all Koreans in Japan had been born in the prefectures, and not a few families were the result of marriages between people in peninsular registers (Chōsenjin) and people in prefecture registers (Naichijin). Though Japan may at times have been a hostile place, it was nonetheless "home" to most Koreans there.

Japan-ROK talks

The disconnect between preferred domicile in Japan, and racioethnic (national) if not also political identity with the Korean peninsula, would continue to be an emotional problem for not a few Koreans in Japan. Their legal problem, though, was that their legal status, and the rights and duties that derive from civil status, were at the mercy of Japan and ROK when it came time for them to negotiate a status agreement.

Under ordinary circumstances, the Allied Powers would have been empowered -- even obliged -- to dictate a status agreement formula based on any number of precedents in other territorial settlements. However, under the circumstances that prevailed in the late summer of 1951, when the Peace Conference was convened in San Francisco, the Allied Powers and Japan had little choice but to sign a treaty that made no provisions for settlements with "China" or "Korea" -- other than to oblige Japan to negotiate with any state that claimed to have outstanding issues.

William J. Sebald, representing what little authority SCAP had left after the signing of the San Francisco Peace Treaty, could do little more than pressure ROK and Japan to sit down at a negotiating table -- then leave them to their own diplomatic devices. The point at which SCAP could compel the two states to model their agreement on a precedent treaty had passed.

For an overview of the 1951-1952 ROK-Japan talks, see Postwar nationality: Japan's bilateral talks with ROC and ROK.

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Click on image to enlarge 15 August 1949 DS dispatch on "Status of Koreans in Japan" From pdf file provided by Simon Nantais

Sebald's 15 August 1949 "Status of Koreans in Japan" dispatch

William J. Sebald, a bilingual attorney who had spent many years in Japan before the Pacific War, studying Japanese and translating Japanese laws, became the head of SCAP's Diplomatic Section in the late 1940s after the war.

On 15 August 1949, Sebald and his assistant, Richard B. Finn, also an attorney and former language officer, sent the following dispatch to all of the major SCAP offices, in which he expressed DISSEC's understanding of the status of Koreans who were legally residing in Japan as Japanese.

This is arguably the most important single document of many that reveal the various attitudes of different SCAP and Japanese government offices and officials toward Koreans in Occupied Japan during the period leading up to the signing of the San Francisco Peace Treaty on 8 September 1951 and the ROK-Japan talks that began from 21 October just 6 weeks later.

The following representation of Sebald's "Status of Koreans in Japan" dispatch is my transcription of a copy of the dispatch provided me by Simon Nantais on 3 July 2014. The lineation and hyphenation are as received. The [bracketed glosses] and underscoring are mine, as are the comments that follow.

Note that the dispatch is formally from "DS:WJS:RBF:hh" /Mr. Finn 26-5528", which suggests that, while it was from both "William J. Sebald" and "Robert B. Finn", the latter was in charge of preparing the dispatch under the former's direction. See biographical particulars about both officials on the Nationality after World War II: Japan's bilateral talks with ROC and ROK page.

Commentary on text of Sebald's dispatch

William J. Sebald was by then the head of the Diplomatic Section. Richard B. Finn was the most important Foreign Service Officer in the Diplomatic Section.

Both Sebald and Finn were lawyers. Sebald had been trained in Japanese in Japan, and had lived and worked in Japan as an attorney and translator of Japanese laws, before the Pacific War, and had served as an intelligence officer during the war. Finn, after becoming a lawyer, had been trained at the Japanese Language School in Colorado during the war, been deployed in the Pacific as a language officer, then briefly served as a language officer in Occupied Japan. He then resigned his commission, and after passing the Foreign Service Officer exam, he was sent to Occupied Japan to work in the "DIPSEC" that by then was headed by Sebald.

Finn had developed much of the information about "Koreans in Japan", and both men shared the position on the legal status of Koreans in Japan expressed in the 15 August 1949 statement.

Korean Diplomatic Mission in Japan
This refers to the diplomatic mission of the Republic of Korea (ROK).

The Republic of Korea was founded in the southern half of Korea (Chōsen) on 15 August 1948, exactly 1 year before Sebald wrote this dispatch. The Democratic People's Republic of Korea (DPRK) was founded in the north on 9 September 1948. Though both states claimed to be the government of all of Korea, on 12 December 1948 the United Nations General Assembly declared ROK to be the only lawful government in Korea. On 1 January 1949 the United States recognized ROK and the two states exchanged ambassadors. By the end of 1949, 22 other states had recognized ROK. Japan, when surrendering to the Allied Powers in 1945, delegated its sovereignty, including its diplomatic capacity. SCAP thus proxied most of Japan's diplomatic affairs during the Occupation, and Sebald's Diplomatic Section was the principal liaison between SCAP and Japan's Ministry of Foreign Affairs. Though in principle SCAP represented all of the Allied Powers, in practice its "foreign policy" was essentially guided by the United States. ROK had expressed its desire to represent Koreans in Japan, and SCAP considered "recognizing" ROK to the extent of allowing its mission in Occupied Japan to enroll Koreans in Japan into its nationality.

Korean residents in Japan since 2 September 1945
This refers to Koreans who had been residing in parts of the prefectural Interior of the Empire of Japan that became Occupied Japan -- on or before, and since, Japan formally surrendered to the Allied Powers on 2 September 1945.

Korean residents refers to people in Occupied Japan whose family registers were in Korea (Chōsen), whether north or south of the 38th parallel. While some SCAP documents appear to "racialize" the people it calls "Koreans", in principle "Korean" is a civil status defined by membership in a Korean household register. The term "resident" implies a civil status in a Japanese municipal polity, whether as a Japanese or an alien. Korean residents continually in Occupied Japan since 2 September 1945 are Japanese. Koreans with ROK documents are aliens. The status of Koreans who were in Japan illegally is not clear.

2 September 1945 is the date on which the Allied Powers and Japan signed the General Instrument of Surrender. From this date, Japan became legally obliged to accept the terms of the Potsdam Declaration, which included the separation of Korea (Chōsen) from Japan. Numerous postwar laws mark time from this date, on which the Empire of Japan is redefined as the prefectural Interior (内地 Naichi) minus Karafuto and Okinawa prefectures, and a few islands affiliated with Kagoshima, Tokyo, and Hokkaido prefectures.

Special Permanent Residents   "2 September 1945" continues to define the status of Special Permanent Resident (特別永住者 Tokubetsu Eijūsha), a perpetual right-of-abode for (1) any alien in Japan who (a) was residing as a Japanese national in the prefectural Interior of Japan on the day Japan surrendered, (b) lost their Japanese nationality on 28 April 1952 as an effect of Japan's formal loss of Taiwan and Chōsen, or (2) any alien lineal descendant such an alien who (a) was born in Japan after 28 April 1952, and (b) has continually resided in Japan. SPRs represent about 50 different nationalities, but most are nationals of the Republic of Korea (ROK), followed by nationals of the People's Republic of China (PRC) or the Republic of China (ROC), and nationals of other countries. Many nationals of other countries are former ROK or ROC nationals.

Chief of Staff
The Army Chief of Staff from 7 February 1948 to 15 August 1949, the date of Sebald's dispatch, was General Omar Bradley (1893-1981).

Joint Chiefs of Staff (JCS)   The Supreme Commander for the Allied Powers (SCAP) at the time -- General of the Army Douglas MacArthur (1880-1964) -- was accountable to the Joint Chiefs of Staff in Washington, which oversaw the military Occupation of Japan on behalf of the Allied Powers. The Joint Chiefs of Staff (JCS) had dictated to SCAP the original determinations of the boundaries of "Occupied Japan" and the statuses of Koreans (Chosenese) and Formosans (Taiwanese) as "non-Japanese" for purposes of repatriation. Sebald's dispatch makes it clear that SCAP, while in a position to recommend that ROK be allowed to enroll Koreans in Japan in its nationality, was obliged to submit to its recommendations to the JCS for approval, through the Army Chief of Staff, who higher in the chain of command (though Bradley at the time was only a 4-star General while MacArthur was a 5-star General of the Army).

Koreans as used here is a general reference to people whose legal status was defined by territorial affiliation with "Korea" -- the term used by the Allied Powers, hence SCAP, to refer to what is still called "Chōsen" in Japanese. The "Korea" in the English version of the San Francisco Peace Treaty is "Chōsen" (朝鮮) in the Japanese version. The "Korea" in the English version of the 1965 normalization treaty between Japan and the Republic of Korea is "Chōsen" (朝鮮) in the Japanese version but "Han pando" (한반도) in the Korean version, which reflects ROK's preference for "Han" (韓) rather than "Chosŏn" (朝鮮) as the name of the country or territory. In Japanese, "Koreans" were "Chōsenjin" (朝鮮人), which in English is "Chosenese" -- hence my usage when referring to "Koreans" when referring to people affiliated with "Chōsen" whether during or after it was a part of Japan. The terms "Chōsen" and "Chōsenjin" continue to live in legacy law in Japan.

registered Koreans who had relinquished Japanese nationality be entitled to the status of foreign nationals in Japan
This means that -- if a Korean who was legally registered as a resident of Japan had applied to the Korean Diplomatic Mission in Japan for recognition under ROK law as an ROK national, and was so recognized by ROK -- the Korean would lose his or her status as a Japanese national, and therefore qualify for treatment as an alien.

The status of Koreans legally in Japan, other than those who hold valid documentation issued by the Korean Government, remains unchanged and they will accordingly continue to be considered Japanese nationals for the purpose of treatment; there is no basis on which Koreans legally in Japan other than those who hold valid Korean documentation can be treated as other than Japanese
This in effect defines the following 3 categories of people in Japan who are "Koreans" (Chosenese) on account of being members of household registers in "Korea" (Chōsen).

1. Koreans legally residing in Japan as Japanese
     i.e., not entitled to treatment as foreigners
     Though Japanese, they were regarded as aliens under
     1947 Alien Registration Order, hence should have cards
   = Practically all "Koreans in Japan"
2. Koreans legally residing in Japan as ROK nationals
     i.e., foreign nationals with ROK documents
   = The few ROK nationals who SCAP permitted
     to enter Occupied Japan, including of course
     members of the Korean Diplomatic Mission in Japan
3. Koreans illegally residing in Japan
   = Koreans who had illegally entered Occupied Japan,
     including some who had formally repatriated to Korea from
     Occupied Japan then later returned without documentation

OSS ration card article Pacific Stars and Stripes 21 March 1950, page 2

OSS cards
Not "Office of Strategic Services" ID cards -- but "Overseas Supply Store" ration cards. The cards were issued by the Tourists and Service Division of SCAP's Economic and Scientific Section (ESS), one of the recipients of Sebald's dispatch. Such cards were allowed their bearers to shop at designated OSS outlets in parts of Japan with substantial numbers of Occupation Personnel. One of the better known outlets in Tokyo was the Meijiya building in Kyobashi. Military and civilian personnel, and other qualified United Nations nationals, could obtain the cards, which gave them access to imported goods unavailable in Japanese stores. Japanese -- including Koreans who had remained in Occupied Japan, and Taiwanese who had not migrated to ROC nationality -- were not allowed ration cards. Local black markets coveted goods from OSS outlets, which motivated fraternization between Japanese (including Koreans) and Occupation Personnel.

those who do not possess Japanese Alien Registration Cards or Korean documentation
In other words, Koreans illegally in Japan. These Koreas would have included those who had been in the prefectures on or before, and since, 2 September 1945, and those who had smuggled themselves into the country after that date. The former would be those who had failed for whatever reason to register as aliens. SCAP considered them to still be Japanese, but they were regarded as aliens for purposes of registration under the 1947 Alien Registration Order. They would not have had Korean documentation. The later would include Koreans who had been in the prefectures at the end of the war but repatriated from Occupied Japan to the peninsula, then returned to Occupied Japan, and Koreans who had been in the prefectures in the past and had reason to come again, and Koreans who had never been in the prefectures but had reason to come. It all came down to personal circumstances.

no punitive or re[tr]oactive action be taken with respect to those Koreans who have in good [fa]th been availing themselves of privileges to which they are not entitled
Sebald recognized that SCAP had to take responsibility for the confusion regarding nationality status that led some Koreans to believe that they weren't Japanese, hence were legally above Japanese. Some Koreans in Japan, believing they were aliens, thought they were qualified for treatment on a par with United Nations nationals, who in Occupied Japan had extraterritorial privileges, including special rations not available to Japanese or other former enemy nationals, and in some cases protection from the reach of Japanese courts.

"Liberated people   When the war ended in 1945, Chosenese and Taiwanese got the impression that they were "liberated peoples" and no-longer Japanese. This impression was encouraged by SCAP, which pursuant to a late-1945 JCS directive regarded them as "non-Japanese" for purposes of repatriation. If they left Japan for Korea or Formosa for the purpose of repatriation, they left Japanese nationality. If they remained in Japan, they retained Japanese nationality. However, SCAP's nationality policy was not clarified until after late 1946, when the official repatriation window was closed. The 1947 Alien Registration Order -- though recognizing that Koreans in Japan, and Formosans in Japan who had not migrated to ROC nationality, were Japanese nationals -- provided that, for the time being, they were to be treated as aliens for the purpose of alien registration and border control. People subjected to such treatment easily got the impression that, legally, they were aliens. Some felt they deserved to benefit from the privileges reserved for United Nations nationals, who qualified for special rations, protection from Japanese courts, and other forms of extraterritorial treatment.

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1950 Nationality Law

Occupation Authorities, meaning SCAP and SCAP-related officials, issued numerous directives and other documents touching upon nationality or status issues related to nationality. US consuls and other Department of State Foreign Service Officers in Occupied Japan also contributed to the flow of paper concerning Japanese nationality, and of course US citizenship, since US consuls were responsible for dealing with US citizenship matters in Japan.

SCAP oversaw Occupied Japan as the authority to which Japan had delegated its sovereignty under the terms of surrender. Hence SCAP was naturally concerned with the full scope of nationality issues that needed to be resolved in the treaties that Japan would conclude with the Allied Powers and other states.

To be continued.

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Callanan's transmittal of 1950 Nationality Law to DOS

The US Department of State (DOS) posted officials to Occupied Japan for the express purpose of advising SCAP -- General MacArthur -- regarding US foreign policy interests and keeping DOS abreast of developments in Occupied Japan that might have an impact on policy.

SCAP's first DOS political adviser (POLAD) was George Atcheson (1896-1947), and General MacArthur made him an ambassador. Atcheson was appointed chief of the Diplomatic Section at SCAP's General Headquarters in Tokyo on 18 April 1946, and from 22 April he was SCAP's representative on the Allied Council for Japan.

When Atcheson died in a plane crash near Hawaii on 17 August 1947, William Sebald (1901-1980), the deputy chairman of the Allied Council for Japan, became acting POLAD. From October 1948, Sebald was appointed POLAD with the rank of minister, and served in this post for the duration of the Occupation of Japan.

The US Political Adviser to GHQ/SCAP was the equivalent of the US ambassador to Japan during the Occupation, and its offices were the equivalent of US consulates -- hence the following correspondence from US POLAD, Yokohama to DOS, with copies to US POLAD offices in Tokyo, Kobe, Fukuoka, Nagoya, and Sapporo.

Leo J. Callanan (1900-1982), as American Consul General, had been the U.S. Consul General in Hankow, 1949 during the revolution when the People's Republic of China was established and the Liberation Army drove the government of the Republic of China into exile on Taiwan. George Atcheson, too, had come to his post in Japan, after World War II, from diplomatic service in China.

The following letter to DOS in Washington, from Leo J. Callanan, American Consul General in Yokohama, dated 20 September 1950, is especially interesting for how it reflects both the depth and shallowness of understanding among even Americans who had professional reason to be familiar with nationality issues.

I am indebted to Simon Nantais, at the University of Victoria, for a scan of a copy of Callanan's letter, consisting of two pages and enclosures, which he retrieved from GHQ/SCAP archives (document 794.08/9-2050).

Callanan's communication is very interesting in that it shows how at least one US consul -- who had come up through the ranks dealing with citizenship and nationality issues -- misconstrued the relationship between Japan's 1950 and 1899 nationality laws, and between these laws the 1890 and 1947 constitutions. Understanding the nationality laws of other states was not, of course, in Callanan's job description, since his authority -- as a US consul -- extended only to US nationality laws.

General foreign service officers bend over backward not to interpret the laws of other countries. Here, of course, Callanan is acting as a consul of the United States, in Occupied Japan, which was under the authority of the Allied Powers, which was dominated by the United States.

Callanan may have prepared the above communication under his own authority -- if not under the direction of William Sebald -- who would have been his boss, as POLAD (Political Adviser) to GHQ/SCAP at the time. The Yokohama branch of POLAD, as a de facto US consulate, was heavily involved in US citizenship confirmations by stranded Americans, including Americans of Japanese ancestry. It also, of course, provided routine services for US citizens, including consular recognitions a marriage to a Japanese or other non-US national, or the securing of a US-issued birth certificate for a child born in Japan.

A number of Callanan's remarks require comment.

"nationality" and "citizenship"

The manner of writing reflects that of an American consul who, as part of his job over the years, had dealt with all manner of nationality and citizenship issues. Hence the clear differentiation between "nationality" (in Japanese law) and "citizenship" in US law.

"conformity of nationality principles"

Callanan implies that there were constitutional "conformity" issues, and that the 1950 Nationality Law took these issues into mind. In fact, the most basic principles of the 1950 law are identical to those of the 1899 Nationality Law. And the 1899 law, as revised in 1916, would have complied with the 1947 Constitution just as well as the 1950 law.

The 1947 Constitution, like the 1890 Constitution, stipulated that qualifications for national affiliation would be determined by statutes, and neither constitution placed any constraints on qualifications. The 1950 Nationality Law contains only one article that mentions "nationality" (kokuseki) by way of giving Japanese nationals the right to renounce their their status as nationals. The 1899 law had no provision for renunciation until 1916, when the law was revised in response to demands by the United States that Japan do something to minimize the occurrence of dual nationality among children born in the United States to Japanese who had settled in America (see more in following commentary).

The 1947 Constitution, unlike the 1890 Constitution, forbids sexual discrimination in laws. Yet the 1950 Nationality Law adopted the same basic affiliation principles as the 1899 law, namely patrilineality in the case of married nationals, which discriminated against Japanese women married to aliens and their children (see more in following commentary).

See 1899 Nationality Law for details.

"discrimination based on family system"

By "discrimination" Callahan appears to mean differentiation of family register statuses such as sex, marital status, and legitimacy. All three statuses had figured in all manner of civil family law in pre-Occupation Japanese laws, and all continued to figure, somewhat modified under the 1947 Constitution, in the 1948 Civil Code and 1948 Family Register Law.

Because Japan's nationality laws have essentially been based on principles of family law in the Civil Code, in turn reflected in the Family Register Law -- and because family registers affiliated with Japan also serve as registers of Japanese nationality -- naturally the new nationality law had to dovetail with "traditional" principles of family law -- at least to the extent that they had survived in the revised Civil Code and the new Family Register Law, both enforced from 1 January 1948.

The sexual "discrimination" was not eliminated until revisions enforced from 1985 (see below). Also from 1985, acquisition by legitimation and recognition became possible -- having been possible under the 1899 law but not under the original 1950 law. The new provisions for legitimation and recognition -- based on traditional principles of "discrimination" in family law -- were revised to eliminate the discrimination from 2009.

See 2009 Nationality Law revisions for details.

"by birth of a Japanese father"

Callanan's remark that "Japanese nationality is acquired in general by birth of [sic = to] a Japanese father" -- actually testifies to the fact that the 1950 Nationality Law did not conform to the letter and spirit of Article 14 of the 1947 Constitution, which mandates that nationals not be discriminated under law because of sex.

Whatever guidance GHQ/SCAP's Legal Section gave Japan regarding patrilineality as a "general" or "traditional" principle is not clear, but the issues was discussed among Japan's lawmakers and legal bureaucrats -- who, of course, had reasons to continue to apply the basic -- familiar and, in fact, globally rather common -- mixture of patrilineal and matrilineal jus sanguinis, and jus soli, principles.

Callanan's "in general" qualification -- commonly made by writers on Japan's nationality laws -- refers to cases of children born to married parents -- because a child born to an unmarried Japanese woman, under both the 1899 and 1950 laws, could acquire Japanese nationality at time of birth. Also, under both laws, children born in Japan to parents both of whom were stateless, or both of whom were unknown (foundlings), became Japanese through jus soli principles.

See 1950 Nationality Law and 1985 Nationality Law revisions for details.

"steps to retain Japanese nationality"

Callanan observes that the 1899 Nationality Law also had rule concerning intention to retain nationality. These rules were introduced in 1924, after the United States demanded that Japan take more positive measures than it had taken in 1916 to minimize dual nationality among the US-born children of Japanese nationals who had settled in the United States. Japan applied the 1924 revision to a number of American hemisphere states which, like the United States, had primarily jus soli (place-of-birth) laws.

See 1899 Nationality Law for details.

"kika" and "kaifuku"

Callanan's remarks are a bit odd because the 1899 Nationality Law clearly facilitated naturalization (kika) for children of Japanese nationals who are domiciled in Japan. Recover of nationality (kaifuku) has been possible only for domiciled aliens who had previously possessed Japanese nationality.

"Formosans and Koreans in Japan"

Callanan's remarks about Kenta Hiraga's discussion of some of the principles in the new law are interesting -- though the new law had nothing to do with -- nor could it have had anything to do with -- the present or future status of Japanese whose nationality was linked with Formosa (Taiwan) and Korea (Chosen) as parts of Japan.

The month after Callanan wrote this communication -- i.e., in October 1950 -- the first volume of Hiraga's two-volume bible on nationality law was published. The second volume was published in October 1951, a month after Japan had signed the San Francisco Peace Treaty and began talks with the Republic of China and the Republic of Korea regarding post-Occupation settlements.

The first volume of Hiraga's work contains what was then considered the definitive statement on nationality in Taiwan, Karafuto, and Taiwan (Hiraga 1950-1951, Volume 1, pages 132-133, 140, 153-170). Today, over half a century later, his observations still qualify as clear descriptions of the standards by which Japan continues to regard legacy nationality issues.

See Hiraga 1950-1951 for details.

"to renounce Japanese nationality"

The 1899 Nationality Law was revised in 1916 in response to US demands that Japan permit US citizens who were also Japanese nationals to renounce their Japanese status. Article 22 of the 1950 Constitution stipulates "Freedom to divest nationality inviolate" -- but this obviously applies only to Japanese nationality, for Japan has no legal authority over the nationalities of other states.

The main text the 1950 Nationality Law, as promulgated or as later revised, does not actually stipulate that a renouncer must have another nationality. However, international conventions have strongly discouraged denationalization that results in statelessness, and Japan is among the many states that requires renunciation applicants to possess another nationality, specifically of a state Japan recognizes.

"considerable litigation by Japanese-Americans"

Callanan's "hyphen" should not be taken to mean dual nationals as such -- but Americans of Japanese ancestry, in Japan, many of whom the United States regarded as having lost their US citizenship because they were viewed as having in some manner participated on Japan's side during World War II, or had voted in the first postwar election in 1946, as Japanese nationals.

Most such Americans did not intend to lose their US citizenship. And not a few, unable to return to the United States during the war, had activated the Japanese nationality retained by their parents, or otherwise acquired Japanese nationality, under wartime pressure in Japan. As a condition for reinstatement of their US citizenship, they were generally required to show evidence of separation from their Japanese status -- hence Callanan's statement about "considerable litigation".

There was also considerable litigation in the United States concerning reinstatement of US citizenship lost by some Americans of Japanese ancestry in connection with their refusal to swear loyalty to only the United States, among other causes. Isamu Noguchi was one such person who had to go to court in the United States to recover his lost US citizenship.

See Prominent people of mixture for details about Noguchi's situation.

Some cases were initiated by the United States against Americans it charged with treason for acts they were alleged to have committed in Japan during the war. One such case involved Tomoya Kawakita -- who had returned to the United States, after having his US citizenship confirmed on the basis of affidavits and other documents he submitted to the American Consul at Yokohama December of 1945 -- which was before Callanan's time.

See The Kawakita treason case for details.

"the extreme brevity of the new law"

This is one of the more interesting remarks by Callanan. Bear in mind that, as an American consul, he was generally at home in the extremely convoluted status laws of the United States. The 1950 Nationality Law was quite a bit simpler and shorter than the 1899 law, but even the 1899 law and its revisions were simple and short by US standards.

Having said this, the nationality law -- like many such laws -- came with enforcement regulations for the local registrants and other officials who had to carry out the law's provisions. Moreover, the 1950 law came with the baggage of all preceding laws, regulations, bureaucratic decisions, and court decisions related to nationality and status tantamount to nationality in Japan.

Callanan concerns that the brevity of the 1950 law might not be conducive of clarity in its future operation turned out to be wasted. What proved to be a problem was the utter clarity with which the new law discriminated on the basis of the family system in Japan -- to paraphrase Callanan's odd remark (see above).

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Summary of Hiraga's overview of 1950 Nationality Law

Consul General Leo J. Callanan's 20 September 1950 dispatch to the Department of State (above) included an enclosure which he described as "a translation of a summary of an article by Mr. Kenta Hiraga on the new nationality law" (page 2). The enclosure runs 12 pages of single-spaced typescript. I received a pdf file of page 5 from Simon Nantais on 13 October 2010 and pdf files of the other pages 29 May 2011.

Hiraga Kenta (1912-2004), a career legalist who specialized in civil law, was deeply involved in family system issues by the early 1940s. After World War II, with many other government and civilian specialists, he was involved in revising the Civil Code and Family Register Law, effective from 1948, which had to be brought into line with the principles of the 1947 Constitution.

Hiraga became particularly experienced in nationality issues, participated in the drafting of the new 1950 Nationality Law, and wrote the earliest guides to the law, including the article digested here, published shortly before the law came into effect. In the fall of 1950 he published the first volume, and in the fall of 1951 the second volume, of what quickly became the standard commentary on nationality law in Japan and remained so until the 1970s.

See Hiraga 1950-1951 a review of Hiraga's compendium and a longer biographical note.

This publication, which appeared on the heels of the 1950 Nationality Law, is in many respects the bible of early postwar Japanese nationality law studies. Though superseded by Tashiro 1974 as a guide to the workings of the 1950 law, it remains more valuable for certain historical content not found in Tashiro.

Hiraga's general description of the reasons the 1899 Nationality Law had to be revised is generally reliable. From the viewpoint of constitutional and civil (especially family) law, the revisions were indeed "substantial" -- but only to extent that they reflected basic changes in the legal standing of individual rights as provided in the 1947 Constitution and in the Civil Code as revised from 1948. With respect to its principles for determining who belongs to the nation as a matter of birth or through naturalization, the 1950 Nationality Law was essentially no different than the 1899 law. See comments following partial transcription of the summary translation (below).

Quality of summary translation

The enclosure represented as a "translation of a summary" of Hiraga's article appear to be a digest of article with some direct citations. While parts of the enclosure are extremely lucid and well phrased, others show construction marks -- some perhaps intentional (like my own very heavy "structural" marks), but a few seemingly left in the haste of paraphrasing and editing. Not having seen the original article, however, I cannot verify the literal accuracy of the enclosure as either a translation or a summary.

While the enclosure appears to represent the viewpoints Hiraga expressed elsewhere about the same time, especially in his 1950-1951 compendium on nationality law, it does not entirely reflect his thinking about the old and new laws. The article was very likely a finger exercise for the compendium (see below).

Transcription and comments

Here I have transcribed selected parts of the enclosure and, after the partial transcription, commented on phrases with purple highlighting. Not having seen Hiraga's article, my comments address only the statements in the received document rather than what Hiraga might actually have written.

The above summary has a number of problems. Here I will focus on those related to the underscored phrases.

"substantially revised"

While true that the old law was "substantially revised", the most essential provisions of the new law -- which stipulated qualifications for nationality at time of birth -- were essentially the same as those of the old law. It is not that the revisions were not important in the light of changes in constitutional and civil law, but that they were overshadowed by the retention of patrilineality.

"first Nationality Law of Japan"

While Great Council of State Proclamation No. 103 of 1873 made provisions for gain and loss of what was tantamount to nationality in alliances of marriage and adoption between Japanese and aliens, it was not quite a "nationality law".

"freedom of marriages between Japanese and aliens"

Nor did the 1873 proclamation quite "prescribe" or otherwise provide for "freedom in marriage between Japanese and aliens". The proclamation provided that a head of household apply for permission to effect an alliance of marriage or adoption involving an alien. Japanese in another country who married an alien were to request permission of a Japanese official in the country, or in a nearby country, and the official had the power to sanction or not sanction the marriage.

"acquisition or loss of nationality"

The 1873 proclamation did not in fact speak of "nationality" -- if this word represents "kokuseki" (国籍), a term that was not coined until later. The proclamation speaks only of gaining or losing "the standing [status] of being Japanese" (日本人タルノ分限 Nihonjin taru no bungen).

Such a standing was based on membership in a household register affiliated with Japan's sovereign territory according to the 1872 Family Register. This law, more than the 1873 proclamation, deserves to be regarded as Japan's first de facto "nationality law". The changes in standing stipulated in the 1873 proclamation were merely effects of status acts under the 1872 register law. In other words, permission to enter into an alliance of marriage or adoption involving an alien would occasion changes in family register status.

This is still true today, in the sense that family register status is tantamount to nationality status. The Nationality Law merely facilitates register status changes related to the enrollment of people having no legal status (such as at time of birth) or aliens (later in life) as Japanese, or the disenrollment of Japanese (who renounce or lose their nationality).

Japan's first true "national status" law as such was part of the promulgated but never enforced French-style Civil Code of 1890. This code used the expression "national standing [status]" (国民分限 kokumin bungen) (see "Old Civil Law" below).

"nationality (citizenship) in the American citizenship law"

Note that "nationality" is the term used on United States passports as the status term recognized under international law, while for purposes of domestic law US passports refer to the possessor as a "citizen/national" of the United States, since US domestic laws differentiation between "citizens" and "nationals". There is no "American citizenship law" as such. Japan's domestic laws define neither "citizen" nor "citizenship" as such, but only "national" as a matter of possessing "nationality".

Thomas L. Blakemore

The enclosure raises and often returns to problems of dual nationality and recovery or "restoration" (回復 kaifuku) of nationality. It twice refers to Blakemore in connection with problems involving "Japanese 'Nisei' born in the United States" (page 4) or "Japanese Nisei born in the United States" (page 10). It also mentions the 1949 Supreme Court decision in Japan concerning the American citizenship of Kiyoshi Honda (page 5).

The summary makes explicit and full reference to "Recovery of Japanese Nationality as Cause for Expatriation in American Law", by Thomas L. Blakemore, noting that it was published in The American Journal of International Law, Vol. 43, No. 3, July 1949, and adding that "The Translation given in the HOSO JIHO), Vol. II, No. 4, will be valuable to Japanese lawyers" (page 4). Later it repeats that "Mr. Blakemore's article before cited is valuable regarding restoration of nationality made during the war" (page 10).

The late 1940s saw a splurge of cases in the United States, but also in Japan, involving people whose American and/or Japanese nationality required legal clarification. Blakemore's article, concerning cases up to the time he wrote the article, was cited in later cases. See, for example, The Kawakita treason case.

The translation of Blakemore's article appeared in the April 1950 issue of Hōsō jihō, hence two months before Hiraga's article. An 4 March 1994 obituary described Thomas L. Blakemore (1915-1994) as follows (The New York Times website).

Given Blakemore's long association with GHQ/SCAP, the timing of the translation in relation to his own interest in nationality conflicts, and the general legal precision of the summary translation, to say nothing of the repeated references to problems involving "Nisei" -- I would not be surprised if Blakemore himself didn't have a hand in preparing the summary translation of Hiraga's article.

An even more seasoned American legalist -- who had studied, lived, and worked in Japan, and translated numerous Japanese laws before the war -- was William J. Sebald (1901-1980). Sebald was a US Foreign Service Officer in Occupied Japan from 1947-1952, during which he served in various posts, some concurrently, including U.S. political adviser (POLAD) to SCAP, the head of SCAP's Diplomatic Section, and a member and then chairman of the U.S. Allied Council for Japan. As a political adviser of ambassadorial rank, he participated in the peace treaty negotiations from 1949-1951. He was also instrumental in facilitating talks between Japan and ROC and Japan ROK after the signing of the peace treaty. And presumably, as SCAP's chief POLAD, he was Leo L. Callanan's boss. Could Sebald himself have been involved in the preparation of the summary translation?

There were, of course, many people in Occupied Japan who were sufficiently bilingual, and familiar with legal jargon and style, to have cranked out the summary translation -- never mind its occasional oddness of usage and opacity. My point is that there was no shortage of legal talent within GHQ/SCAP or, say, the US Consulate in Yokohama, or at their beck and call.

The Occupation of Japan was, above all, driven by attention to legal details. A few details were overlooked in the rush to revise Japan's laws. But nationality was too important an issue to ignore. Hiraga, above all, understood that the Nationality Law should have been revised when the Civil Law and Family Register Law were revised, effective from 1 January 1948. This understanding on his part -- though not alluded to in Callanan's enclosure -- is clear in the first volume of his 1950-1951 compendium (see below).

"qualifications as a Japanese national shall be prescribed by law"

This is a close paraphrase of Article 10 in the 1947 Constitution, though technically "Japanese" should be "national of Japan". Article 18 in the 1890 Constitution similarly provided that laws would determine the qualifications of being a subject of Japan.

The common use of "Japanese" is English tends to conflate Japanese terms which are metaphorically different. The terms in the 1890 and 1950 constitutions are actually "Japan subject" (日本臣民 Nihon shinmin) and "Japan national" (日本国民 Nihon kokumin).

The 1899 Nationality Law characterized those who possessed Japan's "nationality" (国籍 kokuseki) as "Japanese" (日本人 Nihonjin), following earlier practices of referring to people in Japan's population registers being of "the standing [status] of Japanese" (日本人の分限 Nihonjin no bungen). The personal status articles of the 1890 Civil Code defined the qualifications for "national standing" (国民分限 kokumin bungen), which became "nationality" in the 1899 Nationality Law. The 1950 Nationality Law speaks only of "national" (国民 kokumin).

Of interest here is the remark that "This means that the loss or acquisition of Japanese nationality shall be prescribed by written laws and regulations, and that such laws must be enacted by the Diet." Regulations include measures determined by competent ministries, in this case the Ministry of Justice, which supervises the Nationality Law.

"Law Governing Disposition of Chinese Overseas Residents"

What the received translation of Hiraga's article calls the "Law Governing Disposition of Chinese Overseas Residents" was more literally the "Law regulating the disposition of nationality of Taiwan sojourners residing outside" (Big5 在外台僑國籍處理辦法, GB 在外台侨国籍处理办法, JIS 在外台僑国籍処理弁法). The regulation, promulgated by ROC's Executive Yuan on 22 June 1946, made the following provisions for the recover of Chinese nationality by overseas Taiwanese, according to Chiu Hungdah (Chiu 1990, page 54, see Chiu 1990 for particulars).

A decree issued by the military government of Governor-General Chen Yi in Taiwan on 12 January 1946 had already declared that Taiwanese would be considered to have recovered their Chinese nationality as of 25 October 1945. The regulation, promulgated by ROC's Executive Yuan on 22 June 1946, made the following provisions for the recover of Chinese nationality by overseas Taiwanese, according to Chiu Hungdah (Chiu 1990, page 54, see Chiu 1990 for particulars).

ROC, while recognizing its predecessor's cession of Taiwan to Japan in 1895, naturally (from a political standpoint) and correctly (from a legal standpoint) took the position that Taiwanese had not voluntarily lost their nationality in 1895. Hence those who chose to recover their Chinese nationality would be regarded as having all the rights of Chinese who had never lost their nationality -- unlike those who had regained their nationality after voluntarily losing it (Chiu 1990, page 53).

"Formosans and Koreans"

The formal recovery of Chinese nationality by Taiwanese outside China -- i.e., overseas Taiwanese -- would obligate the host country to treat the person as any other ROC national. The Government of Japan, its diplomatic authority in SCAP's hands, was of course obliged to recognize such Taiwanese as Chinese. But Japan, with SCAP's understanding, was also in the position of having to regard them as still possessing its own nationality. Hence the wording of Article 11 in the 1947 Alien Registration Order (which see for details). And hence the inability of Formosans (and Koreans) to naturalize.

Under the legal status rules reflected in the Alien Registration Order, Taiwanese (Formosans) in Occupied Japan became essentially Chinese as well as Japanese nationals. This was not the case for Chosenese (Koreans) in Occupied Japan, who also continued to possess Japanese nationality, but were unable to register as nationals of either of the Korean governments established on the peninsula in 1948.

SCAP recognized the Republic of Korea to the extent of permitting it to establish a mission in Japan. And though ROK had promulgated a nationality act in 1948, which provided for the acquisition of people in Japan who it considered Korean, SCAP did not permit ROK's mission in Occupied Japan to engage in nationality enrollment. Not until after Japan and the Republic of Korea (ROK) established normal diplomatic relations in 1965 were Chosenese in Japan who wished to be ROK nationals able to gain its nationality in Japan's eyes. Those who wish to be DPRK nationals still have no way to legally gain such status in Japan.

"Old Civil Code"

The revised Civil Code that came into effect from 1948 (and the Civil Code today) is the 1898 Civil Code. "Old Civil Code" appears to refer to the French-style "Boissonade Civil Code" promulgated in 1890 but never enforced. "Personal Affairs Chapter" appears to refer to the "Personal matters volume" (人事編 Jinji hen), Chapter 2 (第二章) of which (Articles 7-18) concerned "National standing [status]" (国民分限 Kokumin bungen).

The Old Civil Code provided for national standing at time of birth under the following conditions (Article 7, my translation).

See Hiraga 1950-1951, Volume 1 (1950), pages 126-128, for a text of all the national standing articles in the 1890 Civil Code and comments. See "National status" articles in 1890 Civil Code in the Nationality section of this website for a transcription and my translation of the articles and further commentary.

"blood principle of paternal lineage"

Note that the Old Civil Code also provided for status through matrilineal lineage -- and, significantly, through birth or even presence in Japan.

It is clear from the customary and statute laws of Japan that status, even before the Meiji period, was based on family lineage and household registration, not race or ethnicity. The patrilineal and matrilineal provisions in the Old Civil Code, and in both the 1899 and 1950 (current) Nationality Law, are parental lineage, not racioethnic, criteria.

Since its revision effective from 1985, the 1950 Nationality Law has been ambilineal with respect to family lineage. Nationality has otherwise been acquired by birth or naturalization in Japan (since 1899 law), and through marriage and adoption (until 1950 law). The Old Civil Code also

"does not directly discriminate"

The argumentation in the enclosure comes as no surprise. I witnessed the same thinking in the arguments presented by the government, and essentially recognized by the courts, in the nationality confirmation lawsuits of my children, beginning with my daughter's case in 1978 and my son's case in 1982. Hiraga's understanding was par for legalists of his generation and for not a few legalists today.

Regarding constraints of the new Constitution on the Nationality Law, the enclosure summary translation of Hiraga's article refers to Article 22, which provides that "The freedom [of every person] to divest themselves of their nationality shall be inviolate.", and Article 24, which provides that in "matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."

The enclosure does not, however, refer directly to Article 14, which stipulates that "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of . . . sex . . . ."

Hiraga -- between a rock and a hard place -- is obliged to justify the continuation of patrilineality, both on grounds that (1) it minimized dual nationality, and (2) it did not, in any event, directly infringe upon the equality of men and women under the law. This argument is correct in the sense that the state reserves the prerogative to determine conditions for acquisition of nationality -- meaning that nationality acquisition is not, in law, described as a right, at least not a parental right. Every child may be regarded as having a right to a name and nationality, but this is not viewed as a right to one or the other parent's nationality. In other words, a child acquires its nationality from the state, not a parent.

Still, there is not a little ingenuousness in the argument that -- while holding that women would have an equal right to keep an acquired nationality even though different than that of her husband -- the children of a Japanese woman married to an alien, unlike the children of a Japanese man married to an alien, would not be qualified to acquire Japanese nationality matrilineally unless their father was stateless. True, most states that extolled the "essential equality of the sexes" in nationality matters continued to continued to frown on dual nationality. But why should a child's acquisition of the nationalities of both parents constitute a greater difficulty for parents whose nationalities remained different?

Why -- if there was "a legislative example [in another country] of minors [in which] minors are given a right to choose nationality after they have reached majority" (page 8) -- should Japan not have adopted such a measure in the new 1950 law? True, children were legally somewhat less equal to adults in that they lacked the capacity to act without representation by a parent or other legal guardian or representative. But how can it have been in the interest of protecting a child by not according the child a choice of nationality?

"no fundamental change in naturalization"

As pointed out in the summary translation, only the one condition for general naturalization in the 1950 Nationality Law had not been in the 1899 law. And, as pointed out in the summary translation, that condition is found in (and based on) US naturalization laws (page 11).

Significantly, the additional condition -- as stipulated in the 1950 law -- requires that "A person who, since the enforcement of the Constitution of Japan has never plotted or advocated, or formed or belonged to a political party or other organization which has plotted or advocated the overthrow of the Constitution of Japan or the Government" (Article 6). The political background to this condition can only have been the prospect that the vast majority of people then regarded as aliens under the 1947 Alien Registration Order were Koreans in Japan, many of whom appeared to be sympathetic with the Democratic People's Republic of Korea.

The 1950 Nationality Law was promulgated a month before the start of the Korean War, and enforced a month after the war began. Koreans generally, and particularly Koreans domiciled in Japan, were still regarded as Japanese nationals, never mind their partial alienation under the 1947 Alien Registration Order. Still, it was anticipated that they would probably lose their Japanese nationality and have to naturalize if they wished to regain their their nationality. Not that many Koreans were interested in being Japanese -- but at least the government would have a reason not to permit the naturalization of applicants who were known to be communists.

"automatic renunciation of nationality"

This is a misnomer since Article 9 merely provides that "A Japanese national who has acquired a foreign nationality by reason of his or her birth in the foreign country shall lose Japanese nationality retroactively as from the time of birth, unless the Japanese national manifests his or her volition to reserve his or her Japanese nationality according to the provisions of the Family Registration Law (Law No. 224 of 1947)."

What this means is that a child qualified to acquire Japanese nationality through either patrilineal or matrilineal criteria would not acquire nationality until its birth were duly registered at a Japanese consulate with the intention of reserving its Japanese nationality for use at some point in the future should the child go to Japan. This provision was introduced in the 1899 law, in 1924, in order to satisfy pressure from the United States and several other American states that Japan take stronger measures to prevent dual nationality.

What the reservation system essentially did was create a condition of quasi dual-nationality, in which Japanese nationality was put on hold for possible activation. In effect, it provided a choice of nationality.

In other words, half a century before the introduction of a formal nationality choice provision in 1985, Japan was facilitating choice -- in the form of a nationality reservation system -- in order to avoid a "positive conflict of nationality" (page 12). This fact adds to the incredibility of the argument that patrilineality had to be continued in 1950 in the case of a child born to a Japanese woman married to an alien in order "as far as practicable to prevent conflict of nationality" (page 9).

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Hiraga Kenta on Chosenese and Taiwanese

The publication of Hiraga's 1950-1951 compendium on nationality law in Japan straddled the signing of the San Francisco Peace Treaty on 8 September 1951. His commentary on the applicability of the 1899 to Taiwan, Karafuto, and Chosen, and the postwar treatment of former imperial subjects of these territories under both the 1899 and 1950 nationality laws, warrants careful regard for its implications regarding the separation from Japanese nationality of Taiwanese and Chosenese, but not people affiliated with Karafuto, on 28 April 1952 when the terms of the San Francisco treaty came into effect.

Hiraga on reach and effects of old Nationality Law

Hiraga, in a note, makes the following observation about the applicability of the 1899 law outside the legal jurisdiction of the prefectural Interior (Naichi) of the Empire of Japan (Hiraga 1950-1951, Volume 1 [October 1950], end of note 6, pages 132-133, structural translation mine).

Hiraga speaks of "at the time of the Ministry of Internal [Interior] Affairs" -- more commonly called the Ministry of Home Affairs or the Home Ministry in English -- because it had been disbanded on 31 December 1947. I have shows his parallel "X to iu Y de atta" constructions at the end, as he does, in the form "X, was the Y" to underscore the past tense in which he makes these qualifications with reference to a Nationality Law that no longer exists -- except in the consideration of legacy matters.

The articles listed by Hiraga concern the following matters.

Article 4 -- nationality through birth in Japan when parents unknown or stateless -- i.e., an abandoned infant found in CHōsen, even if presumed to have been born in Chōsen, would not become Japanese.

Article 7(2)1 -- being domiciled in Japan as a condition of general naturalization -- i.e., aliens domiciled in Chōsen could not naturalize.

Article 9 -- domiciled in Japan as a condition of facilitated naturalization -- i.e., even aliens domiciled in Chōsen who met conditions that would have relaxed the conditions for general naturalization could not naturalize.

Article 25 -- domiciled in Japan as a condition for recovering Japanese nationality lost through marriage, after the marriage was dissolved -- i.e., women who had been Japanese, and lost their Japanese when marrying an alien, could not recover their former Japanese status if, after the dissolution of their marriage, they were domiciled in Chōsen

Article 26 -- domiciled in Japan as a condition for recovering Japanese nationality when lost according to Articles 20 and 21, pertaining to loss occasioned by naturalization or renunciation.

Some writers have stated that Chosenese could not naturalize in Japan because the Nationality Law was not enforced in Chōsen. Such writers (and most others) typically use "Japan" to mean the Interior, exclusive of Taiwan and Chōsen, if not also Karafuto. But even if the law had been enforced in Chōsen, Chosenese could not have naturalized for the same reason that Taiwanese could not naturalize -- because they were not aliens -- i.e., they were already Japanese.

Note that the exclusion of "Chōsen" from "Japan" in the 1944 Interior Ministry consideration of nationality recovery did not mean that that the ministry did not regard Chōsen as being an integral part of Japan as a sovereign state, but merely that "Japan" did not include Chōsen for the purpose of applying the Nationality Law. This is not a contradiction, but just an example of how legalists think when it comes the interpretation of laws in complex legal systems.

Hiraga on nationality problems and peace treaty

Hiraga goes discuss the new Nationality Law in terms of its intent to reflect the principles of the new Constitution -- including the dignity of the individual, the equality of spouses, and the freedom to renounce nationality. He also notes that old Nationality Law needed to be revised in consideration of principled changes in the Civil Code, related to the rights stipulated in the new Constitution, especially as they concerned the abolishment of the family system defined in the Civil Code before it was revised to comply with the new Constitution.

The new Constitution came into effect from 3 May 1947, and revisions in the Civil Code and the Family Register Law in compliance with the new Constitution took effect from 1 January 1948.

Hiraga then remarks that the old Nationality Law -- "though in no way inferior in its modernity (近代性 kindaisei) in comparison with the statutes of other countries" (page 138-139) -- engendered conflicts with the new Constitution and revised Civil Code, and states that the old Nationality Law had been revised mainly with respect to such conflicts, whereas particulars that did not conflict with these newer laws remained essentially the same.

A footnote to these remarks begins with the observation that, in principle, the old Nationality Law should have been revised at the same time the Civil Code was revised (Hiraga 1950-1951, Volume 1 [October 1950], note 8, page 139). The long note includes the following remark (ibid., page 140, my structural translation).

Hiraga then concludes his note with the remark that the Attorney General's Office (法務府 Hōmufu) created a draft of the new Nationality Law -- based on a draft which had originated in the Ministry of Justice (司法省 Shihōshō) in late 1947 -- and circulated it, though not publicly, among concerned scholars for their opinion. Then, with the cooperation of concerned ministries, especially the Ministry of Foreign Affairs, it drafted a bill which it introduced to the 7th Session of the Diet. The bill was adopted by the House of Representatives on 15 April 1950 and by the House of Councilors on the 26th of the same month. (Ibid, page 140).

Many elements of the above statements echo the remarks attributed to Hiraga in the summary translation of his June 1950 article, which the American consul Callanan attached to his September 1950 dispatch to the US Department of State along with copies of the new Nationality Law (see above).

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Civil Affairs A No. 438 notification

19 April 1952

Concerning the disposition of nationality and family register matters regarding Chosenese, Taiwanese, and others, associated with the effectuation of the Treaty of Peace

Civil Affairs A No. 438
Notification of the Director-General
Civil Affairs Bureau, Attorney General's Office [Ministry of Justice from 1 August 1952]
Dated 19 April 1952
Concerning the disposition of nationality and family register matters regarding Chosenese, Taiwanese, and others, associated with the effectuation of the Treaty of Peace
Applicable from the day of the effectuation of the treaty

The notification confirmed that Chosenese and Taiwanese would lose their Japanese nationality from the day the Treaty of San Francisco came into effect. It also confirmed that people who had household registers on Karafuto or Chishima would not lose their Japanese nationality.

Types of civil affairs notifications

The Director (Director General) of the Civil Affairs Bureau of the Ministry of Justice can issue two types of notifications (通達 tsūtatsu), depending on what kinds of matters they address.

Civil Affairs A (民事甲 Minji kō) notifications concern "A item business" (甲号事務 kōgō jimu), meaning principal matters, or matters concerning registration applications related to family registers, property deeds, and other such records.

Civil Affairs B (民事乙 Minji otsu) are "B item business" (乙号事務 otsugō jimu), meaning miscellaneous matters, or matters related to copies and abstracts, and inspections, of family registers, property deeds, and other such records.

Attorney General's Office

Many references to the notification in Japanese and English attribute it to the Ministry of Justice (法務省 Hōmushō), but the name of the agency at the time the notification was issued and came into effect was the Attorney General's Office (法務府 Hōmufu). The name of the agency did not revert to Ministry of Justice, it's former and present name, until 1 August 1952.

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Expedited naturalizations

How Japan helped Chosenese and Taiwanese civil servants remain Japanese

Japan's legal bureaucrats were fully aware of the impact that loss of Japanese nationality would have on Chosenese and Taiwanese in Japan who had jobs or licenses that required Japanese nationality, including national and civil servants. Japan's delegation to the 1951-1952 ROK-Japan talks briefed ROK's delegation about the impact of nationality loss on work and permits no later than 6 December 1951, at the 14th session of the Legal Status Subcommittee.

At the 6 December 1951 meeting, a delegate from the Attorney General's Office reported that there were about 200 Korean civil servants. All (or at least most) were local civil servants, and most (if not all) were teachers. A 15 December 1951 report estimated that about 200 national and regional Chosenese civil servants would be affected by loss of Japanese nationality.

Here I will introduce how Japan -- unilaterally -- facilitated the "continuity" of Japanese nationality for at least 51 such Chosenese on the very day they lost their nationality. I bracket "continuity" because in fact there was no literal "continuation" of the same civil status. Migration from being "Japanese" as a member of a Chōsen register to being "Japanese" as a member of a prefectural register involved a "loss" of the former status and an "acquisition" of the latter status, hence a "discontinuity" in status. In effect, though, it appears they became Japanese as members of Japanese family registers the moment they ceased being Japanese as members of Chōsen registers.

See 6 December 1951 Nationality loss effects clarified in "Postwar nationality" article for the earliest discussion of Korean civil servants. A detailed report on impact of loss of nationality, dated 15 December 1951, was attached to a Japan-side proposal for a status agreement dated 18 December 1951. See 18 December 1951 Japan's status agreement proposal in "Postwar nationality" article for details.

Kim Yongdal

My informant is Kim Yongdal (金英達 1948-2000), a man I met in several publications and would have liked to meet in life. Kim, born in Aichi prefecture during the Occupation of Japan, was a specialist on the history and legal status problems of Koreans in Japan. He naturalized in 1970 as Ōno Eitatsu (大野英達).

Kim's publications appealed to me because, as an independent scholar, he was a free spirit. He wrote extensively about naturalization and other issues of vital importance to understanding the complexities of personal choice among so-called "Koreans in Japan" -- of which he was and wasn't. Besides being a dedicated scholar, he was also an activist, best known as a founder of RENK or "Rescue The North Korean People! Urgent Action Network" (救え！北朝鮮の民衆/緊急行動ネットワーク).

In early May 2000, Kim was found on a futon in his apartment in Amagasaki, Hyōgo prefecture, by the apartment manager -- two weeks dead, a stab wound in his chest, a bloody kitchen knife near his body. The door had been locked, and missing was a teacher in her thirties who had been living with him earlier that year. She was soon found and arrested.

The following table shows naturalization permission announcements in Kanpō (官報), Japan's governmental "Official Gazette", for 28 April 1952 (Kim Yong Dal 1980, Table 1, page 10, my arrangement and English translations).

帰化許可者総数　　七十 (人)
　(原国籍別内訳)
　　朝鮮　　　　　五一
　　中華民国　　　一七
　　アメリカ合衆国　一
　　無国籍　　　　　一

Total persons permitted to naturalize    70 (persons)
  ( Breakdown by original nationality )
    Chōsen [Former Japanese territory]   51
    Chūka Minkoku [Republic of China]    17
    Amerika Gasshūkoku [U.S.A.]           1
    Mukokuseki [Stateless]                1

Chosenese naturalization from 28 April 1952 to 30 June 1953

Kim also presented the following table of figures on Chosenese naturalizations during the 8 months in 1952 after they had become aliens, and for the first half of 1953 (Kim Yongdal 1980, Table 3, page 15; sconce attributed to Morita [1955], page 115; my formatting, transcription, and translation).

Inducing Chosenese to naturalize

Morita views the actions of the Japanese government regarding what amounted to what I would call "premature applications" for permission to naturalize as indicative of Japan's approach status and treatment issues. "It can be imagined," he says, "that [Chosenese civil servants] were pressed with a two-way choice -- 'To give up being a civil servant? or naturalize to Japan?'" (Kim Yongdal 1980, page 14).

Kim sees this as reflecting the way in which -- after this -- the Japanese government induced Chosenese in Japan to naturalize -- namely through the benefit of the stability of life that would come with a bestowal of Japan's nationality (Kim Yongdal 1980, pages 14-15).

Kim observed from the figures in Table 3 that "about 2,000 [Chosenese] applied [for permission to naturalize], and during [the 1-year period] 650 were permitted [to naturalize]" (Kim Yongdal 1980, page 15).

The overall rejection rate rose to the 50 percent level in the late 1950s, after which it began to gradually, and then rapidly, fall. See Naturalization under the 1950 Nationality Law: Closing the gap between social and national experience and identity for statistics should naturalization trends from 1950 to the present.

Kim attributes the data in Table 3 to the following book by Morita Yoshio.

森田芳夫
在日朝鮮人処遇の推移と現状
115頁

Morita Yoshio
Zainichi Chōsenjin shogū no suii to genjō
[Transitions and present state of the treatment of Chosenese in Japan]
Page 115

The fuller bibliographic particulars, which Kim does not provide, are as follows.

森田芳夫
在日朝鮮人処遇の推移と現状
法務研究報告書 (第43集 第3号)
法務研修所、1955年7月
291ページ

Morita Yoshi
Zainichi Chōsenjin shogū no suii to genjō
[Transitions and present circumstances of the treatment of Chosenese in Japan]
Hōmu Kenkyū hōkokusho (Dai 43 shū Dai 3 gō)
[Law administration studies report (Volume 43, Number 3)
Hōmu Kenshūjo [Law administration studies institute], July 1955
291 pages

A facsimile reprint (復刻版 fukkokuban) was published by Kohokusha (湖北社) in 1975.

Morita Yoshio

Morita Yoshio (森田芳夫 1910-1992) was graduated from Keijō University in Chōsen, having studied history in the department of law and literature and Law. He then until the end of the Pacific War for the Government-General of Chōsen (朝鮮総督府 Chōsen Sōtokufu), during which time he published a number of studies and guides to Chōsen.

After the war, he was briefly a secretary (事務官 jimukan) in the Ministry of Justice, then a secretary in the Ministry of Foreign Affairs. He served as a councilor (参事官 sanjikan) at the Embassy of Japan in the Republic of Korea, and later taught at universities in ROK and Japan. He was bilingual, and dedicated much of his postwar career to documenting prewar and wartime conditions in Chōsen, and also conditions in postwar Chōsen, including the Korean War.

Morita chronicled the ROK-Japan normalization talks, which spanned 14 years from 1951-1965. His 1964 book, Chōsen shūsen no kiroku: Bei-So ryōgun no shinchū to Nihonjin no hikiage (朝鮮終戦の記録：米ソ両軍の進駐と日本人の引揚) [Chōsen end-of-war chronicle: Occupation of American and Soviet armies and withdrawal of Japanese] (巌南堂書店 Gannandō Shoten), in which he presents results of numerous interviews of Japanese who evacuated the peninsula after Japan's surrender to the Allied Powers in 1945.

In addition to being a major witness to conditions in Chōsen, Morita had access to Japanese archives on Chōsen records, as well as records relating to Chosenese in the Interior. He left numerous statistical studies, in which he excelled. After Morita's death, Kim Yongdal collected, edited, expanded, and updated a number of earlier statistical reports he had written in the form of the following book.

森田芳夫
[金英達、編集者]
数字が語る / 在日韓国・朝鮮人の歴史
東京：明石書店、1996年6月14日 第1刷発行
183ページ

Morita Yoshio
[Kim Yongdal, editor]
Sūji ga kataru Zai-Nichi Kankoku·Chōsenjin no rekishi
[The history of Koreans and Chosenese in Japan that figures tell]
Tokyo: Akashi Shoten, 14 June 1996, 1st printing published
183 pages, hardcover

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Legacy aliens get permanent residence

How Japan treated nationality losers and long-term residents

Buried in some government reports are rich veins of data that reflect the generally considerate actions Japan took -- on the day it regained its sovereignty after the Allied Occupation -- to provide those who had lost Japanese nationality and become aliens, and those who had been residing as aliens in Japan for many years, reasonably secure legal statuses.

I am calling such people "legacy aliens" to denote two kinds of aliens (1) former Japanese who became when losing Japan's nationality on 28 April 1952, when the terms of the San Francisco Peace Treaty came into force, and (2) those who had not been Japanese but were intimately part of Japan's general population before World War II.

The special provisions Japan made for some such aliens on 28 April 1952 -- when Japan regained its sovereignty, the right to conduct its own foreign affairs, and the right to control its own borders and require aliens to acquire a status of residence -- were based on agreements or quasi-agreements Japan had made with the Republic if China (ROC) and the Republic of Korea (ROK) during talks with these states conducted from the fall of 1951 to the spring of 1952.

The plan to provide permanent residence is clearly set down in the 18 December draft of a status agreement between ROK and Japan. Because Japan and ROK were unable to resolve differences over property, economic, and territorial issues, there would be no special grant of permanent residence to qualified ROK nationals until 1965. However, the provisions for a virtually unconditional grant of permanent residence, as described in the 18 December draft, was made for continental Chinese and a few other aliens who had been living in Japan before it surrendered on 2 September 1945.

See 18 December 1951 Japan's status agreement proposal in "Postwar nationality" article for particulars.

Koreans         17     0.11%
Chinese     14,628    97.53%
Americans       55     0.37%
Others         298     1.99%

Total       14,998   100.00%

4-1-14   permanent residence     14,677    45.72%
4-1-16-2 offspring of 126-2-6       942     2.93%
Other statuses of residence      16,480    51.34%

All statuses of residence        32,099   100.00%

4-1-14   permanent residence     14,677     2.56%
4-1-16-2 offspring of 126-2-6       942     0.16%
Other statuses of residence      16,480     2.87%
-------------------------------------------------
All statuses of residence        32,099     5.60%
126-2-6 Potsdam Law status      541,219    95.40%
-------------------------------------------------
Total registered aliens         573,318   100.00%

Chosen (朝鮮、韓国)              535,065    90.09%
China (中国)                      42,147     7.10%
Other aliens *                   16,743     2.82%

* including Stateless         (     929     0.16% )
* including USA               (   6,922     1.12% )
* including England [UK]      (   1,554     0.26% )
* including Canada            (   1,091     0.18% )

Total registered aliens         593,955   100.00%

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Beware of what you wish for

Many writers today claim that Japan unilaterally "stripped" Chosenese (Koreans) and Taiwanese (Formosans) of its nationality on 28 April 1952 when the San Francisco Peace Treaty came into effect. Divest, deprive, strip, rob, or otherwise take away are usually expressed in Japanese by verbs like "hakudatsu suru" (剥奪する) or "ubau" (奪う). Some writers also allege that the nationality deprivation, in addition to being arbitrary, left Koreans in Japan stateless. And not a few writers also charge that Japan's nationality laws and policies have been "racist".

Treaties involving border changes usually have status provisions. Japan's constitutions have required that qualifications for status as a "subject" (1890) or "national" (1947) be determined by law. And the 1948 Universal Declaration of Human Rights held that everyone had a right to a nationality, and that no one was to be arbitrarily deprived of their nationality. So the full charge against Japan would be that its regard of Koreans if not also Formosans as having lost their Japanese nationality in 1952, in addition to being illegal from the viewpoint of international law and its own Constitution, also violated their "human rights".

Such accusations have become practically "hereditary" in that they are passed along in scholarly literature with little or no examination of historical political and legal facts. It is hardly surprising, given such "critical" positions, that writers have not wondered precisely what kind of nationality choice provisions might have been made, either between Japan and ROC in the peace treaty they signed on the day the San Francisco treaty came into effect, or between Japan and ROK in the normalization treaty and status agreement they began to negotiate in the fall of 1951 but would not finalize and sign until 1965. Considering the political and legal environment in which these two bilateral talks took place, however, it turns out that Japan's solution to the nationality problem was very possibly not only the only practical solution, but for many who lost its nationality it was arguably the better solution.

Japan's solution was, in any event, above board -- in plain sight, and with the acceptance of all other parties which had any standing in the negotiations -- particularly ROC and ROK, but also SCAP, which represented the Allied Powers and, as their supreme commander in Occupied Japan was responsible for facilitating the conduct of Japan's foreign affairs. A demand on the part of any of these parties for nationality choice provisions would have entailed answering questions such as what choices, for whom, where, and with what obligations? -- questions which they either didn't wish to consider (ROC and ROK), or was not in a position to answer (SCAP).

Japan's legalism

My personal opinion is that Japan took the initiative precisely because it was in a position to give the most thought to the possible answers to postwar status questions -- and Japan read the legal handwriting on the political wall. Or, to put it differently, Japan found itself between a legal rock and a political hard place, and played its legal and political hand in a way that was arguably more humanistic than alternative solutions.

Japan fully understood the legal implications of its position on nationality. It's legal bureaucrats were familiar with all manner of historical precedents, including of course in treaties involving Japan. They were also serious students of the more recent precedents in the peace treaties the Allied Powers had concluded in Europe. And they carefully monitored changes in the political environment that would govern its options when it came time to negotiate its own peace treaty with the Allied Powers.

Koshikawa, in his 1948-1949 study of the status of "non-Japanese" in Occupied Japan -- especially that of "exteriorites", referring to people affiliated with what SCAP called the "outlying areas" the Allied Powers had separated from Japan, namely Taiwan and Chōsen -- left few stones on the legal terrain unturned. He refers to the European treaties, the UN Universal Declaration of Human Rights, and of course to Japan's Constitution and all manner of other domestic laws, and also the ROK and DPRK constitutions, ROK's nationality law, and ROC's provisions concerning nationality.

Japan's understanding that Chosenese and Taiwanese would lose its nationality as a natural consequence of the territorial separations of Korea (Chōsen) and Formosa and the Pescadores (Taiwan) from Japan, when the San Francisco Peace Treaty came into effect, was with full consideration of the legality of such effects.

In regarding such people as having lost its nationality as an effect of a treaty, Japan provided itself a defense against charges that it had violated the second clause of Article 15 of the Universal Declaration of Human Rights proscribing arbitrary deprivation of nationality. And Japan's treatment of domiciled Taiwanese who had not acquired ROC's nationality as aliens presumed to be nationals of ROC (essentially in concert with its recognition that ROC's laws would govern the nationality of such Taiwanese), and its treatment of domiciled Chosenese as nationals of "Korea" rather than as stateless aliens, were sufficient defenses against charges that it had violated the first clause of Article 15, which states that all people have a right to a nationality.

By all accounts, Japan played its legal cards very close to its political chest. Many matters were entirely outside both its control and the control of the Allied Powers, which complicated its diplomatic negotiations with both ROC and ROK, but especially with ROK. Japan's biggest mistake -- but a moral rather legal mistake -- was not to unilaterally provide a choice of nationality within the framework of its domestic laws.

To have offered such a choice, especially to Koreans in Japan, would have risked reactions from those who would have viewed such a choice as an anti-Korean act. But such a moral stance and its inevitable political risks were not taken -- for which there is no moral defense.

Japanese nationality

Since Japan had associated its nationality with Ch!sen and Taiwan as parts of its national territory, it presumed that Chosenese and Taiwanese would "lose" (喪失する sōshitsu) its nationality concomitant with the "separation" (分離すること bunri suru koto) of Cōsen (Korea) and Taiwan (Formosa) from its national territory under the terms of the Peace Treaty. Today Japan's laws refer to the persons whose status is tied to the 1952 loss of its nationality as having "separated from" (離脱した ridatsu shita) its nationality.

In other words, no longer having Japanese nationality was not, in Japan's legal regard, a matter of Japan "depriving" anyone of its nationality, but rather a consequence of the territorial separation that resulted from Japan's having agreed in the Peace Treaty to renounce (放棄する hōki suru) "all right, title and claim to" Korea and Formosa (and the Pescadores), thus losing its legal capacity to attribute its nationality to people in their territorial registers. Note that "race" was not a qualification for membership in the registers of either of these territories, nor in Japan's prefectural registers, and in fact people had migrated between such registers.

Had Japan and ROC, or Japan and ROK, felt that nationality options should be included in their bilateral treaties, how would they have defined qualifications? Would qualifications have been defined merely in terms of residential and register status? Or would "ethnic" criteria, such as "customary language", have been adopted?

Would the party states have agreed to reciprocity? In other words, if qualified people in Japan would have been allowed to opt for ROC's or ROK's nationality, would qualified people in Taiwan and ROK have been allowed to opt for Japanese nationality? And would the party states have agreed to reciprocal rights to require, if they wished, that people alienated by their choice of nationality move to the country whose nationality they chose?

Note also that -- had nationality options that those in 1947 peace treaty between the Allied Powers and Italy been adopted -- the default nationality of people domiciled in Japan, who were regarded as "Chosenese" or "Taiwanese" with Japanese nationality, would have been Japanese. And the default nationality of such people in ROK and Taiwan would have been ROK or ROC.

More importantly, however, the San Francisco Peace Treaty, while separating Korea and Formosa (and the Pescadores) from Japan, did not stipulate their successor states. Nor did the treaty impose any other conditions on Japan regarding its future relationships with candidate successor states. Japan, and the states with which it was expected to negotiate settlements -- namely ROC and ROK, owing mainly to America's recognition and America's position as the Allied Power which had primary control of SCAP -- were free to agree to whatever they wished regarding the statuses of people in the registers of these territories.

The evidence is clear that Japan, in 1945 and 1946, Japan expected to have to accept some sort of nationality choice provisions in a peace treaty with the Allied Powers. It was prepared to accept choice provisions because, in its own experience, provisions for status changes, including choice for some individuals, were conventional -- which is not to say mandatory, but simply common -- in treaties involving territorial cessions or transfers.

In 1947, the year the Allied Powers signed a peace treaty with Italy, Japan formulated a "recovery" and "choice" contingency. Then, also inspired by provisions in the treaty with Italy, began to entertain the possibility of expecting that persons domiciled in Japan, who chose not to remain Japanese, would have to move to the country whose nationality they chose, and of course that country would be obliged to accept them. All this would be done formally, of course, meaning that there would be laws and lawful procedures involving diplomatic recognition and communication through diplomatic channels.

However, in the course of negotiating peace treaty terms with the Allied Powers, it became apparent that the Allied Powers would not be able to stipulate the successor states to the territories Japan would be formally losing, much less include provisions for nationality or other statuses for those on either side of the new borders. Japan would be left to negotiate with the concerned states.

Japan, through the agency of SCAP and under SCAP's direction, had already formally accommodated ROC's nationality when acquired by domiciled Taiwanese. The problem was ROK, whose attitude toward the nationality of Koreans in Japan had not been accepted by SCAP, and remained totally incompatible with Japan's understanding of the status of Koreans in Japan. Oddly, this very incompatibility of attitudes conspired against even the consideration of nationality choice provisions.

The root of the incompatibility was Japan's regard of its 1910 annexation of the Empire of Korea as legal, hence Koreans in Japan possessed its nationality. ROK not only refused to recognize the annexation treaty as legal, but would not recognize that Japan had a right to call the territory "Chōsen" or regard its affiliates as "Chosenese" or attribute its nationality to them on the pretext of having sovereignty of "Chōsen" as territory of Japan.

The problem was that, in declaring their intent to liberate the territory of "Korea" from the Empire of Japan in 1943, the Allied Powers had not declared the annexation treaty null and void. And when separating "Korea" from Japan, and occupying most of the prefectural entity of Japan, the Allied Powers -- through the agency and authority of SCAP -- had regarded "Koreans" and "Formosans" in Japan" as "liberated nationals" and treated them as "non-Japanese" for repatriation purposes, yet regarded theme as continuing to possess Japanese nationality.

Moreover, though SCAP officials differed among themselves in their views of how Koreans in Japan should be treated -- including whether some if not all should be repatriated to ROK even if against their will -- and though Japanese officials also differed among themselves regarding treatment during the Occupation and status when the Occupation ended -- SCAP insisted, and Japan complied with its position, that Koreans would retain their Japanese nationality until treaty agreements determined otherwise -- thinking, of course, that there would be a treaty.

That there would be a normalization treaty and status agreement between Japan and ROK was the hope of SCAP's Diplomatic Section chief William Sebald when he facilitated the start of talks between the two countries in October 1951. SCAP's Legal Section chief Alva Carpenter, concerned that Japan and ROK seemed not to be considering choice provisions, wrote a memorandum to DS expressing his concern, cited the 1947 peace treaty with Italy as a recent precedent and possibly a model of choice provisions, and pointed out that the 1948 United Nationals Universal Declaration of Human Rights considered the arbitrary deprivation of nationality a violation of human rights.

Sebald, though, had given Japan and ROC the assurance that SCAP would not interfere -- and, indeed, it does not appear that SCAP had the authority to impose nationality choice provisions on the two states, since the Allied Powers had no authority of ROK, and they had already signed a peace treaty with Japan in which there had been no such provisions. The rest, as the saying goes, is political and legal history. Choice provisions were not on the table.

Korean nationality

ROK -- with the encouragement of the United Nations -- regarded itself as the only legitimate government on the peninsula, and insisted that Koreans in Japan should not have a choice between its own nationality and DPRK nationality. Japan, however, argued that it had no authority to compel Koreans in Japan to choose one state over the other. ROK had to accept Japan's position, but in this regard it was Japan that protected the right of Koreans in Japan to choose which Korean state, if either, they wished to belong to. ROK, at war with DPRK on the divided peninsula, would also have to compete with DPRK on Japan's streets for the loyalty of Koreans in Japan.

For other reasons, though, the Japan-ROK talks floundered shortly before the San Francisco Peace Treaty came into effect, and the two states would not sign a normalization and status agreement until 1965. Neither Japan nor ROK as yet recognize the nationality of DPRK, and Chosenese in Japan -- as well as some Japanese and some ROK nationals in Japan -- who have troubled themselves to obtain DPRK documents, usually when traveling in other states, remain classified as Chosenese, Japanese, or ROK nationals.

These recognition issues are purely a matter of politics and law -- or, more precisely, the politics of law. But they are more convoluted than it appears.

Most Taiwanese in Japan who lost their Japanese nationality had already become ROC nationals. The few who had not were presumed to be ROC nationals, though lacking formal enrollment in ROC nationality they became de facto stateless -- meaning that they were not de jure stateless. That is, they were not classified as stateless aliens, but as aliens presumed to be of ROC nationality. For purposes of overseas travel and return to Japan, however, they were treated on a par with stateless aliens, in that they required documents issued by the Japanese government certifying that they were legally domiciled in Japan.

Japan presumed that, as a consequence of the formal separation of Korea (Chōsen) from Japan, Koreans (Chosenese) had recovered the nationality of the independent state of "Korea". Hence Koreans in Japan, when alienated by their loss of Japanese nationality in 1952, were not classified as stateless aliens, but as aliens with "Chōsen" nationality. There was, however, no actual Korean state, but two states -- ROK and DPRK -- neither of which Japan had yet recognized. So Chosenese, though not stateless, would be treated on a par with stateless aliens when it came to overseas travel and return to Japan.

Japan not only lacked the authority to determine whether such aliens were ROK or DPRK nationals, but it also lacked the authority to claim that they were stateless. In the San Francisco Peace Treaty, Japan had renounced "all right, title and claim" to Korea, in accordance with the terms of surrender, which were based on the provision in the Cairo Declaration that "in due course Korea shall become free and independent." Koreans in Japan thus became nationals of the "Korea" that presumably the Allied Powers had established as a free and independent state.

What if Japan had treated Koreans in Japan as stateless aliens -- instead of aliens presumed to be nationals of "Korea"? As "Koreans" the nationality of children born in Japan would be based on both Japanese and Korean nationality rules -- which were primarily patrilineal. Hence children born in marriages between Koreans, or between a Korean man and a Japanese woman, would be Korean. Koreans born in wedlock between a Japanese man and a Korean woman would be Japanese.

Had Koreans in Japan become de jure stateless -- meaning they had no nationality -- then they would not have been treated as "Korean aliens" but merely as stateless aliens. Under the matrilineal provision in Japan's Nationality Law at the time -- unchanged since the Meiji period -- children born in Japan to a Japanese woman married to a stateless man would have become Japanese. And under the place-of-birth provision -- also unchanged since the Meiji period -- children born to a stateless couple would also have become Japanese.

So in regarding Koreans in Japan as having lost their Japanese nationality through the effects of the territorial separation of "Korea" from Japan, and in considering Koreans in Japan as having become "Korean" rather than stateless aliens, Japan accommodated the sentiment among the vast majority of Koreans in Japan, and indeed everywhere, that they had been liberated from their Japanese status and become "Koreans" in Japan's legal regard. Their only problem was that they lacked the protection of a recognized state -- and, arguably, also better protection by Japan. In the meantime, they became victims of recognition politics and their own ideological persuasions or lack of persuasions.

How many Koreans in Japan would have chosen to remain Japanese had they been provided legal ways to establish a register in Japan without naturalizing? That would have depended entirely on the legal conditions. But I would imagine that, unless Japan had created a special ethnonational status within its family registry system -- with special laws for the exceptional treatment of people in such registers, and special laws to facilitate the migration between these registers and general registers -- most Koreans would have balked.

Naturalization -- the "choice" Japan offered those who had lost their nationality and wished to be again be Japanese, attracted only a few thousand annually. The number of naturalizers from "Korean" status broke the 5,000 barrier in the mid 1970s and the 10,000 barrier in the mid 1990s. Even today, the main resistance to the idea of easing naturalization rules Special Permanent Residents, most of whom are Koreans, comes from Koreans in Japan who would prefer to be treated on a par with Japanese nationals while remaining Koreans.

Some writers have claimed that Japan has also deprived Koreans in Japan of their right to "national self-determination". If there is such a right, then it is the right of the presumed "nation" -- usually regarded as an "ethnonational" entity. To the extent that "Koreans" claim to be "Koreans" as members of a Korean nation, then there can be only one Korean state.

The whole purpose of the "liberation" of "Korea" by the Allied Powers was to create a free and independent Korea, essentially regarded as such a self-determined nation with its own nationality. The tragedy was that the "free and independent" Korea, envisioned by the Allied Powers as fulfilling the desire of most Koreans, became two Korean states which continue to be divided. Certainly Koreans in Japan would not have the "right" to create yet a third Korean state, in Japan no less.

Scenarios

Many post-1952 settlement scenarios can be imagined. Consider these three.

• Scenario 1   What if there had been only one Korean state and choice rules like those for Italy had been provided? Koreans in Japan who did nothing would have been Japanese. Only those who applied for Korean status at a Korean mission in Japan, and who Korea accepted as its nationals, would be recognized by Japan as Korean nationals and thereby no longer be Japanese. And reciprocal rules would have applied in Korea to persons qualified to apply to Japan for recognition as its nationals -- or do nothing and be Koreans. There would have been no non-stateless "Koreans" to subsume in Korean category of alien statistics.
• Scenario 2   What if Japan and ROK had signed a status agreement on 28 April 1952, based on what the two states had been considering at the time? Koreans in Japan would lose their Japanese nationality and recover the nationality of "Korea". Those who wished to be Japanese would have to apply for permission to naturalize, and upon receiving the Minister of Justice's permission would become Japanese. Those who wished to be ROK nationals would have to apply for ROK nationality through an ROK agent in Japan, and if ROK approved then Japan would recognize them as ROK aliens in Japan. ROK aliens who qualified under Potsdam rules (or whatever rules ROK and Japan might have agreed to) would be permanent residents with either general rights as such, or with special rights according to the agreement.
  
  However, because most Koreans in Japan at the time appeared to support DPRK, presumably the application queues would have been very short, and most Koreans in Japan would have become non-stateless "Koreans" with no recognized nationality. How would they be classified? If classified as they were from 1966, when the 1964 Japan-ROK status agreement came into effect, such non-stateless non-ROK Koreans would have conflated with ROK Koreans in alien statistics, pending future agreements with DPRK.
• Scenario 3   What, though, if there had been no war in Korea, Japan had recognized both ROK and DPRK, and the status agreements had been similar? Presumably the queues in front of DPRK's agencies would have been much longer. And alien statistics would have classified the nationals of the two Korean states differently.
  
  How, though, would Koreans in Japan who had acquired neither ROK nor DPRK nationality be classified? Since there were only two Korean states, and because they had chosen neither, I would assume that Japan would have had the right to view them as having no nationality and hence classify them as stateless aliens rather than as non-stateless "Koreans". Or possibly other provisions would have been made in recognition of their special circumstances.

The first scenario represents what would normally have happened if there had been no division of "Korea" into ROK and DPRK. The second includes elements that reflect what has actually happened regarding Japan's recognition of ROK and non-recognition of DPRK. The third includes elements that reflect what could happen if and when Japan also recognizes DPRK.

Japan's moral choices

That Japan had a moral responsibility to offer some kind of nationality choice to people within its own jurisdiction who stood to lose or had lost its nationality goes without saying. But this, too, is a question that needs to be answered in terms of what Japan could have done politically and legally.

In any event, whatever Japan were to have done in terms of providing a choice would have had to be unilateral, as other parties were either not committed to, or would have opposed, bilateral choice provisions. And it is not at all clear that "race" was the overarching issue.

That many officials on all sides (including SCAP) embraced racialist views of "nationality" also was only to be expected. People generally think of themselves and others racially. Racialism was everywhere socially and even politically -- just as it still is today despite -- or, as I would argue, because of -- the concern with "ethnicity" that drives multiculturalism, which racializes "culture" and "heritage" and "communities".

But laws are laws. And neither race nor ethnicity matter in Japanese law. They have arguably mattered somewhat more in ROC and ROK law, which have aggressively attempted to embrace the "ethnic" loyalties of "overseas" people regarded as as being of "Chinese" or "Korean" ethnic descent, but not to the extent that their basic status laws should be labeled as "racist".

The nationality laws of all three states were in fact very similar, as well they should be, since they shared the same mix of primarily patrilineal lineage rules with secondary matrilineal and place-of-birth rules, with provisions for nationality acquisition other than at time of birth, which have been familiar in most countries of the world. In any event, whatever reservations Japan, ROC, and ROK officials had about "race" or "ethnicity" were not matters for discussion, and all deliberations focused on legal solutions to political differences regarding status and treatment.

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Rejected choice conventions

Several documents in the Republic of Korea's archives on the 1951-1952 ROK-Japan talks refer to the kinds of nationality-choice provisions made in Europe after World War II. KRN 81 includes the following extracts from the treaties between the "Principle Allied and Associated Powers" on the one hand and Czecho-Slovakia and Austria on the other.

The "Principal Allied and Associated Powers" were the United States of America, the British Empire, France, Italy, and Japan.

The phrasing in a number of English documents in the ROK archives relating to ROK's demands regarding the status and treatment of Koreans in Japan appears to be inspired by phrasing in these treaties. The phrasing is boilerplate in numerous postwar treaties concerning displaced persons and minorities in transferred territories.

Japan too -- after surrendering to the Allied Powers in 1945, fully aware of conventions in treaties involving territorial transfers, having been party to several over the decades of its imperial expansion -- is known to have considered the inevitability of making similar provisions for nationality and other matters related to status and treatment in the treaties it expected to sign with with the Allied Powers and other concerned states, including Korea.

And Korea also -- at least the Republic of Korea -- was sufficiently familiar with postwar treaty conventions to recognize the sort of provisions which could, in principle, apply to its situation vis-a-vis Japan -- i.e. its separation from Japan following 35 years of annexation. However, ROK also had reason to regard such conventions as inappropriate in its case -- and, I would say, disadvantageous, for such conventions would have to be reciprocal -- and that would have been too liberal for the sort of parochial racioethnic nationalism that inspired the establishments of ROK and its sibling rival, the Democratic People's Republic of Korea (DPRK), in 1948.

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10 September 1919 Allied Powers and Czecho-Slovakia

The treaty between the Allied and Associated Powers and Czecho-Slovakia, signed on 10 September 1919 at St. Germain-en-Laye in France, and effective from 16 July 1920, includes the following articles related to nationality and related settlements.

Portions highlighted in blue are shown as they were extracted on a single-page document in ROK's archives of documents related to the 1951-1952 ROK-Japan talks. (KRN 81: 151, JPN 81: 57). Non-highlighted articles were omitted from the ROK representations, in some cases because they would not have applied, in other cases perhaps because their provisions were not desirable.

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10 September 1919 Allied Powers and Austria

The treaty between the Allied and Associated Powers and Austria, signed on 10 September 1919 at St. Germain-en-Laye in France, and effective from 16 July 1920, includes the following articles related to nationality and related settlements.

Portions highlighted in blue are shown as they were extracted on a single-page document in ROK's archives of documents related to the 1951-1952 ROK-Japan talks. (KRN 81: 152, JPN 81: 58). Non-highlighted articles were omitted from the ROK representations, in some cases because they would not have applied, in other cases perhaps because their provisions were not desirable.

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Laterality

Practically all writers on the subject of Koreans in Japan make some sort of statement on the treatment of the nationality of Koreans (Chosenese), if not also Formosans (Taiwanese), after Japan's surrender to the Allied Powers in 1945, during the Allied Occupation of Japan that followed, and after the effectuation of the San Francisco Peace Treaty between the Allied Powers and Japan in 1952.

The following are excerpts -- some short, others very long -- from a selection of English-language reports published over the past half century. Most were written by university professors, but most of the statements I have cited show little evidence of having been based on personal examined the legal and political facts. A few acknowledge other sources which turn out to be secondary if not tertiary or greater in degree of separation from primary material and careful consideration of such material in the legal, political, and social context of the terms of surrender, international, occupation, and domestic law, and treaty settlements.

To be continued.

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Mitchell 1967

Richard H. Mitchell's very compact book, The Korean Minority in Japan (Berkeley: University of California Press, 1967), is cited less frequently today than during the decade or two since its appearance, for a variety of reasons, not necessarily because it is less reliable than books which have followed it. In places it sparkles with precision and accuracy, and is on the whole still worth examining as a work of better-than-average American scholarship regarding Japan -- arguably still better, as scholarship, than most of the critically "concerned" scholarship today.

Concerning the "basic issue facing the status of the Koreans in Japan during the American occupation" Mitchell says this in the second graph of Chapter VIII -- The Korean Minority in Occupied Japan, 1945-1952 (pages 100-101, underscoring mine).

Mitchell misstates a few things, in addition to his representation of the occupation as "the American occupation".

"treated as 'Japanese nationals'
for administrative purposes

In fact, SCAP's first directive alluding to status, in November 1945, stipulated that, for the purpose of registration related to repatriation, Koreans -- among others who were Japanese nationals, including Formosans and Ryukyuans -- were to be classified as "non-Japanese". This was not a determination of nationality but a provision for treatment for specific purposes. Of course Koreans formally remained Japanese nationals.

It appears that many Koreans (and others) were under the impression that treatment was tantamount to status -- and assumed, because of their treatment as "non-Japanese" for repatriation purposes, that Koreans were indeed no longer "Japanese" for nationality purposes. In November 1946, a SCAP spokesman addressing "misconceptions appearing in some sections of the press in regard to the status and treatment of Koreans in Japan", stated that press reports to the effect that Koreans in Japan "must obtain Japanese citizenship are entirely incorrect" and clarified that SCAP had "no intention of interfering in any way with the fundamental rights of any person of any nationality in regard to retention, relinquishment or choice of citizenship".

Mitchell characterizes SCAP's 20 November 1946 "attempt to clarify the legal status of the Koreans who remained unrepatriated" as one which held that "any Korean who refused repatriation automatically fell under the jurisdiction of Japanese law and would be treated as a Japanese" (pages 107-108). But in fact Koreans had already been subject to Japanese laws as Japanese with respect to their status, as opposed to "non-Japanese" with respected to their treatment.

SCAP's statement legalese was calculated stress the anticipation of choice in the future, not clarify present status. The statement went on to remark that SCAP's policy was to treat Koreans in Japan as "liberated nationals" et cetera, but those who had chosen to remain in Japan would be subject to Japanese laws. Both these remarks concerned "treatment" rather than "status". Until determined otherwise, their "status" would be "Japanese nationals".

The differentiation between "status" and "treatment" is vital in law. The difference is clear in the 1947 Alien Registration Order, under which the status of Chosenese (Koreans) and some most Taiwanese (Formosans) was clearly "Japanese" but their treatment, for purposes of applying the law, was as "aliens."

"still rejected the classification 'Japanese nationals'"

In fact, some Koreans had clearly accepted that they were Japanese nationals -- and proudly contributed to the carrying out of Japan's national, including military, missions. For this reason, as the Supreme Commander for the Allied Powers, SCAP had been ordered by the Joint Chiefs of Staff, representing the Allied Powers, to legally treat Koreans and Formosans as "enemy nationals" -- "in case of necessity" -- meaning if they were suspected of having committed crimes against the Allied Powers -- because "they have been Japanese subjects" (JCS directive to SCAP, 3 November 1945).

Mitchell's overview of matters related to legal status following the signing of the San Francisco Peace Treaty is also a bit odd. These two paragraphs lead Chapter IX -- The Korean Minority in "New Japan," 1952-1960 (page 119, underscoring mine).

A few pages later, Mitchell gives a generally accurate overview of -- far better than most in present-day English accounts -- of the negotiations between Japan and ROK (pages 134-136). Here, too, he stresses the period October 1951 to October 1953 -- rather than October 1951 to October 1952. In doing so, he totally overlooks the breakdown of talks shortly before effectuation of the San Francisco Peace Treaty, and the separation of Chosenese and Taiwanese from Japanese nationality on the day of effectuation.

"could not agree on the status of the minority"

Yes and no. In fact, ROK and Japan did agree -- as much as they would or could agree, given the incompatible views of the two countries regarding their respective nationalities -- that what Japan did with its nationality would not be on the negotiation table. Japan naturally rejected as legally untenable ROK's demand for treatment -- as aliens -- on a par with Japanese, but offered to recognize qualified ROK nationals as permanent residents, and ROK accepted this.

In fact, well before the San Francisco Peace Treaty came into effect, a draft status agreement was sufficiently developed that the two states could have signed it -- if not for issues germane to the normalization treaty. Even here, they could have agreed to formally normalize their relations and continue talks over remaining issues. But as Mitchell describes in some (but inadequate) detail, other issues got in the way.

"by October, 1953, the delegates had reached a deadlock"

While true that October 1953 marks the beginning of a rather long hiatus in ROK-Japan talks, the "deadlock" in the early rounds of talks between the two states surfaced during the weeks before 19 April 1952, when the Ministry of Justice issued its notification concerning separation from nationality. The separation of nationality was not, of course, news to ROK, because Japan had informed ROK -- at the very beginning of their talks in October 1951 -- of its intent to regard Chosenese as separated from its nationality concomitant with treaty effectuation. ROK's position, of course, was that Koreans in Japan were already its nationals, and had always been Korean nationals.

SCAP's Diplomatic Section -- which oversaw Japan's foreign affairs -- had facilitated the talks. And as an observer at the early rounds, DS -- in particular its chief, William Sebald -- appears to have fully understood that there was no room for bilateral nationality choice provisions.

"status of Koreans in Japan remained much as it had"

The status of Chosenese and Taiwanese fundamentally changed from 28 April 1952, when in Japan's regard they were separated from its nationality as an effect of the separation of Chōsen from its national territory, and became aliens. It is hard to imagine -- though it is possible -- that Mitchell did not know this. I met him once, and we corresponded a couple of times, but about other matters. And at the time I read his book -- shortly after it was published -- I lacked any basic knowledge of the Occupation of Japan, and had barely heard of Koreans in Japan.

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Changsoo Lee (1971 and 1981)

Changsoo Lee made two similar, yet interestingly different, observations about the legal status of Koreans in Japan, during the Occupation of Japan, and when it ended. Because he is one of the few writers who I have reason to believe actually examined the legal measures he speaks of and contemporary legal commentary, and also argued close to bone of both domestic law and international customary law, I am giving his remarks -- especially those he made in his 1981 article, both correcting and expanding on those he made in his 1971 dissertation -- considerably more scrutiny than those of most other writers.

Lee 1971

In his 1971 doctoral dissertation, The Politics of the Korean Minority in Japan (University of Maryland, Political Science, international law and relations), made the following statement regarding nationality status (page 52, italics represent underscoring in the original typescript, while underscoring is mine).

Lee's dissertation bristles with generally precise descriptions of primary and quality secondary sources. His attempt to describe the complex chain of events affecting the legal status of Koreans in Occupied Japan, however, has a few problems, some not so obvious.

"classified Koreans as aliens"

In November 1945, the Supreme Commander for the Allied Forces (SCAP) had directed Japan to treat Koreans, Formosans, Chinese, and Ryukyuans, whose family registers who outside the jurisdiction of Occupied Japan, as "non-Japanese" for purposes of the "repatriation". Koreans and Formosans, in particular, were to be treated as "liberated nationals". However, this did not affect the essential nationality status of Koreans and Formosans as Japanese. In fact, the 1947 Alien Registration Order clearly recognized that Koreans, and most Formosans, were not "aliens" as formally defined in the law -- i.e., persons who do not possess Japanese nationality -- but only as persons who would be treated as aliens for the purpose of applying the law. In fact, several kinds of categorical aliens were excluded from treatment as aliens under the law. The manner in which the law itself is constructed is evidence that in principle Koreans, and most Formosans, were regarded as still possessing Japanese nationality.

"subsequently disenfranchised"

Alienation under the Alien Registration Order obviously came long before the disenfranchisement under the amended Election Law. However, Koreans and Formosans were not mentioned in the law. A supplementary provision merely stated that, for the present, rights of suffrage would be suspended for persons not subject to the application of the Family Register Law, which applied only to the prefectural Interior (Japan Proper) jurisdiction that constituted the foundation of Occupied Japan. The Family Registration Law had never applied to Korea or Formosa. Koreans and Formosans who were domiciled in Interior election districts had rights of suffrage as Japanese subjects. Rights of suffrage could be exercised only by subjects domiciled in an election district. The amended Election Law continued to use the term "subject" because the Meiji Constitution, which was in force, provided rights of suffrage for subjects. However, the Allied Powers had not only declared an end to "subjecthood" as such, but had expressly declared Koreans and Formosans "liberated nationals" to be treated as "non-Japanese" for repatriation purposes. If SCAP's characterizations were taken literally, as tantamount to "occupation law", then it was reasonable for the government of Japan to assume that Koreans and Formosans in Occupied Japan no longer had standing as "subjects" or "nationals" for the purpose of the Election Law. The government amended the law partly to comply with SCAP directives concerning universal suffrage and lower ages of eligibility, and SCAP did not object to the exclusion of people whose registers were associated with Korea and Formosa.

"added a legal interpretation"

The 1952 Attorney General Office's notification was indeed an "interpretation" of the separation of nationality as an artifact of the separation of territory. It was not, however, an "added" interpretation. Moreover, it was an interpretation accepted by SCAP, on the grounds that ROK regarded Koreans in Japan to be its nationals, while recognizing that Japan had the right to determine the parameters of its own nationality -- and those parameters were essentially territorial. I.e., there is no such thing as Japanese nationality except as an artifact of membership in a register that is affiliated with a territory that is part of Japan's sovereign dominion. The Allied Powers had made no provisions for nationality choice in the Peace Treaty, and while SCAP could have pressured ROK and Japan to adopt such provisions, SCAP had authority over only Japan, and the problem would have been ROK -- which, if such provisions were to be in a bilateral treaty, would have had to recognize the legitimacy of the annexation treaty and its effects on the nationality of Koreans.

"in a strict legal sense"

Lee appears to be suggesting that it is possible to hold Japanese nationality in other than a legal sense -- meaning what? In an "ethnic" sense? In any event, in a strict linguistic sense, the notification observed that Chosenese and Taiwanese would "lose" -- not "cease to hold" -- the nationality of Japan.

Lee 1981

Ten years later, in a chapter titled "The Legal Status of Koreans in Japan" in his book with George De Vos on Koreans in Japan: Ethnic Conflict and Accommodation (Berkeley: University of California Press, 1981), Changsoo Lee made a similar statement, embracing also the question of nationality "choice", as follows (pages 138-139, italics Lee's, underscoring mine).

Lee has both somewhat rephrased and significantly expanded the contentions he made in his dissertation -- and done so with the same scholarly regard for precise citation of laws. He compounds, however, his interpretive flaws. In the above extract, I have underscored only the new problems, and left unmarked repetitions of the problems I marked and remarked on in the extract from the disseration.

"tacit consent of SCAP authorities"

The 1947 Alien Registration Order was clearly inspired by SCAP. SCAP was responsible for the security of Japan's borders and for law and order within its borders. SCAP is, in a word, Japan. SCAP, not the Japanese government, has total authority over, not only over entrance into and exit from Japan, but over Japan's foreign affairs.

The 1947 Alien Registration Order is actually also a border control order, tantamount to what would later be called an "immigration [exit-enter-country] control law". Article 1 of the 1947 order states that "The purpose of this imperial ordinance is to appropriately enforce the measures concerning the entry of aliens [into this country], and to assure the propriety of the various treatments toward aliens" (my translation). Article 3 forbid aliens to enter the country -- except as permitted by SCAP, and except through SCAP designated harbors or airports. Penal provisions cover illegal entry.

"peace treaty with the United States"

The San Francisco Peace Treaty was between the Allied Powers and Japan.

"policy was contradictory"

Laws are "contradictory" only when they make provisions that are unintentionally in conflict with one another. Possession of nationality is one matter. How one is treated as a national is another. As a status, nationality is equal -- i.e., one either has, or does not have, a state's nationality. However, a state may treat people who possess its nationality differently.

Intentionally treating some nationals as aliens under some laws but not others is not, in law, a contradiction, but a status qualification. As a matter international law, all Americans equally possess the nationality of the United States. As a matter of US domestic law, some Americans are "citizens" and some are only "nationals". From 1935, Filipinos, as "nationals" of the United States, were legally treated as "aliens" for the purposes of immigration laws and quotas.

"action taken to reclassify legal status"

This is an interesting characterization of what is simply a recognition of separation from nationality concomitant, as a matter of course, with the confirmation in the 1952 Peace Treaty of the territorial separations that were made in 1945 under the terms of surrender. The term "action taken" betrays logical flaw in Lee's contention -- and similar contentions of many others.

Given the territorial quality of Japanese nationality -- namely, the recognition of nationality as an artifact of the affiliation of "honseki" population registers with Japan's sovereign territory -- the separation from nationality was a natural consequence of the territorial separation. More importantly, though, this separation was consequential precisely because Japan did not take action -- specifically unilateral action -- to offer Chosenese and Taiwanese, at least those domiciled in Japan, opportunities to establish registers within its sovereign territory.

"within the sphere of Japanese sovereignty"

Japan was not a sovereign state when it decided, without SCAP's objection, that the best solution to the postwar nationality of people affiliated with Chōsen (Korea) or Taiwan (Formosa) was not to make either bilateral or unilateral provisions for choice of nationality with the states claiming sovereignty over these former Japanese territories. The Chief of SCAP's Legal Section (LS) tried to persuade the Chief of SCAP's Diplomatic Section (DS), who had catalyzed the start of negotiations between ROK and Japan, to push the two parties to make provisions for nationality choice.

DS, however, took the position that SCAP would not interfere in their talks, and that whatever they agreed to would take effect from the time of the agreement. And when Japan clarified its position on nationality to ROK in the early rounds of their negotiations -- to the effect that Chosenese would be separated from Japanese nationality and have to naturalize if they wished to possess Japanese nationality -- it was ROK that pointed out that nationality was a matter of a sovereign state's domestic law, and how Japan defined it's nationality was not something qualified for discussion at such bilateral talks.

"from the standpoint of ethnic discrimination . . .
stripped of legal rights on the basis of ethnicity"

To be continued.

"freedom to select citizenship . . .
customary upon transfer of sovereignty"

To be continued.

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Hicks 1997

George Hicks, in Japan's Hidden Apartheid: The Korean Minority and the Japanese (Aldershot: Ashgate, 1997), made this statement in his preface (page viii, underscoring mine).

"citizenship"

Hicks later speaks more correctly of "Japanese nationality". He continues to use "deprive" but also uses "loss" (see next), as follows (page 51, underscoring mine).

In paragraphs immediately before the above-cited graphs, Hicks shows considerably familiarity with legal workings of the the operation of the 1947 Alien Registration Order regarding the status of Chosenese and some Taiwanese. This this and certain other respects, his book showed an awareness of legal and political facts that many other writers on "Koreans in Japan" have either lacked or have chosen not to reveal. However, Hicks makes numerous allegations that have no foundation in legal or political realities.

"common among Western countries"

Most "Western countries" had conventional right-of-blood laws like Japan's. Japan's law also had place-of-birth provisions. The 1950 Nationality Law was essentially a roll-over of the 1899 law, which was made provisions much like those in the "national status" section of the 1890 Civil Code, which was promulgated but never enforced. All these laws were state-of-the-art practically boilerplate nationality laws by global standards. The elimination of nationality as an artifact of a relationship, such as marriage, also reflected global trends, especially universal suffrage and other rights for women.

"definitive relinquishment to any claim to Korea"

Japan had already -- when accepting the terms of surrender in 1945 -- agreed to lose Korea, Formosa, and most other territories stipulated in the San Francisco Peace Treaty. Moreover, these territories were, pursuant to the terms of surrender, immediately separated from Japan's legal control and jurisdiction de jure in 1945 -- and also, de facto, from Japan's sovereignty, which had been consigned to the Allied Powers and SCAP. Korea had no standing as a member of the Allied Powers. It did not exist, and was not involved, in the resolution made by the Allied Powers in 1943 to liberate Korea from Japanese rule, and had no standing in the surrender agreements, since Korea had been part of Japan. Only the Republic of China (ROC) had existed as an Allied Power and been involved in all the legal determinations by the Allied Powers from the beginning of their war against the Tripartite Powers. And of course ROC gained legal control and jurisdiction, and effective sovereignty, over Taiwan. ROC and Japan negotiated an independent peace treaty, and signed this treaty on the day the San Francisco Peace Treaty came into effect, when Japan regained its sovereignty. Japan and the Republic of Korea (ROK) also attempted to negotiate a normalization treaty and status agreement, but failed to settle their differences before the San Francisco Peace Treaty came into effect, and would not come to terms until 1965.

"relinquishing of sovereignty"

The 1952 Ministry of Justice notification speaks only of separation of Chōsen and Taiwan from Japan's territory. There are no territorial transfer provisions -- as there could not have been. Japan lost its right to have any say in the futures of Chōsen and Taiwan when it surrendered. When surrendering, Japan in effect gave the Allied Powers the authority to determine the futures of these former-Japanese territories.

"originating from those areas had lost Japanese nationality"

The 1952 notification does not qualify people according to whether they originated from the lost territories. Quite to the contrary, it speaks only of membership in territorial household registers, regardless of territory of origin. The notification very clearly states that people who entered the register of another territory would be treated according to their status in the register they had entered.

"former Japanese nationals who had lost Japanese nationality"

The loss of nationality announced by the 1952 notification was described as an effect of loss of territory. This cause of nationality loss was not covered by the 1950 Nationality Law (or was it covered by the 1899 law). However, most Chosenese and Taiwanese qualified for relaxed naturalization conditions for other reasons, including length of continuous residence, marriage to a Japanese national, or birth in Japan.

"by depriving the Koreans of their Japanese nationality
Japan acted illegally, immorally, and unwisely"

Japan regards the 1952 notification as a recognition of the effects of the territorial separation confirmed by the San Francisco Peace Treaty, namely that -- because the territorial affiliations of Taiwan and Chōsen had engendered nationality attribution -- their territorial separations engendered nationality separation. Barring either multilateral or unilateral provisions for nationality choice, Japan's interpretation of the effects of the treaty were both legal and proper. Barring multilateral or unilateral provisions to contrary, people in Chōsen and Taiwan registers would be separated from Japanese nationality when Chōsen and Taiwan were separated from Japan's national territory. For Japan's nationality, as an artifact of territorial affiliation, comes with affiliation and goes with separation.

Was Japan's legal regard for the effects of the San Francisco Peace Treaty "immoral" or "unwise"? The lack of multilateral provisions in the Peace Treaty meant that Japan would be left to negotiate nationality issues with ROC and ROK if Japan chose these states as those representing "China" and "Korea". And SCAP clearly helped Japan choose to negotiate with ROC and ROK, rather than PRC or DPRK, for obvious "cold war" political reasons. Given the lack of choice provisions in the Japan-ROC peace treaty which had been readied for signing on the day the San Francisco Peace Treaty came into effect -- and the position ROK had taken toward its own and Japan's nationality in the early rounds of their talks before April 1952 -- it was clear that there would be no choice provisions in bilateral treaties with these states.

These multilateral political realities left Japan with the choice of making unilateral provisions -- which was, of course, Japan's "moral" choice from the viewpoint that Japan "should" have unilaterally established procedures for qualified Chosenese and Taiwanese to create family registers in the Japanese municipalities in which they were domiciled. But how would this have been done?

SCAP's moment of being able to dictate the parameters of postwar Japanese family law and nationality law had passed. Nationality continued to be based on family registers within Japan's de jure sovereign territories. And its de jure territories -- the prefectural Interior, Taiwan, and Chōsen -- had their own registers governed by their own family laws. A domestic "common law" governed alliances of marriage and adoption, and other private matters, between Japanese of different territorial statuses.

So what could Japan have done? In order to continue to be Japanese, Taiwanese and Chosenese -- defined as people in Taiwan or Chosen registers -- would have needed to migrate to prefectural registers. Japan, to faciliate such register migration, would have had to establish new registers in accordance with the standards of Japan's Civil Code and Family Register Law. But these laws did not accommodate all of the standards of family law in Cōsen and Taiwan laws. Would Chosenese and Taiwanese families that wished to remain Japanese have had to accept the legal standards of prefectural family registers? Or would Japan have been morally obliged to revise its Civil Code and Family Register Law to accommodate Chōsen and Taiwan family law? Or should Japan have created exceptional "Chōsen" and "Taiwan" style registers within its otherwise uniform prefectural -- former Interior (Naichi) -- register system? Then created rules to govern private matters between individuals in different classes of registers? Which would have been tantamount to establishing, within the prefectures of postwar Japan, the same multilegal system which had existed within the Empire of Japan?

It appears to me that Japan's "moral choice" was guided by the "wisdom" of not attempting to do something that would not have been politically possible in Japan at the time -- and would be highly contentious even today. If Japan's decision to simply let Chosenese and Taiwanese lose their nationality, and require those who had lost their nationality to naturalization if they wished to again be Japanese, was "unwise" -- it was unwise because, by not unilaterally establishing laws and procedures for migrating to a prefectural register other than through naturalization, in order to continue to be Japanese, Japan left itself open for criticism that its separation from nationality decision was illegal, immoral, and unwise.

"determined by law, rather than administrative decision"

The San Francisco Peace Treaty, signed on 8 September 1951, was approved by the House of Representatives on 26 October, approved by House of Councillors and ratified by the Cabinet on 18 November, attested to by the Emperor on 19 November, and deposited with the United States on 28 November. The treaty was ratified by the United States Senate on 20 March 1952. The US ratification was essential, as the treaty could enter into force for the states which had ratified it only if it had been ratified by Japan and the United States -- and by a majority of eleven specific Allied States including the United States -- among the 48 Allied States which had signed it.

The Ministry of Justice notification, issued on 19 April 1952, effective from the effectuation of the Peace Treaty on 28 April 1952, was within the ministry's powers as an interpretation of the legal effects of the Peace Treaty as a Japanese law.

"usual international practice allows individual choice . . .
officials took the power of choice away from the individual"

Provisions in international treaties for choice have considerably varied. When choices are provided, they are provided with conditions, and the conditions are always subject to provisions in the domestic laws of the party states. Qualifications for choice are determined by the party states, which agree to allow qualified individuals choices, and the choices themselves are conditioned by the requirements of the domestic laws of the party states.

However, a state may unilaterally permit any individual to choose its nationality, and when doing so it may freely stipulate qualifications and other conditions. Provisions for choice in multilateral agreements are of course between states and/or other competent entities, including alliances of states such as the Allied Powers. However, again, parties to such treaties agree to whether there should be provisions for choice, and who should be qualified to make a choice, and the conditions under which the choice must be made. The party states, not the individuals, have the right to determine such matters.

"no distinction between other aliens"

Quite to the contrary. Throughout the Occupation of Japan, Chosenese and Formosans were treated under provisions tied to the Potsdam Declaration and related agreements, beginning with the Instrument of Surrender signed in 1945. From the day Chosenese and Formosans lost Japan's nationality in 1952, they were exempted under a so-called "Potsdam law" -- a domestic law that reflects the obligations of Potsdam-related agreements -- from the need to acquire one of the statuses of residence which other aliens needed to acquire under the so-called Immigration Control Law. As "deemed aliens" (before losing Japanese nationality) they had been subject to the this law -- but as "actual aliens" (after losing Japanese nationality) they qualified for a "Postdam law" status called 126-2-6, which was provided outside the framework of the Immigration Control Law. They were treated as aliens, but exceptionally as aliens with a virtual (not yet actual) right of abode, based on prefectural residence on and after the day of surrender in 1945 and loss of nationality in 1952. The 126-6-2 status is progenitor of today's Special Permanent Resident status, which is directly linked to the separation of nationality engendered by the effects of the San Francisco Peace Treaty, which reflect the terms of surrender and in turn the Potsdam Declaration.

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Weiner 1997

Michael Weiner, in the first edition of Japan's Minorities: The Illusion of Homogeneity (London: Routledge, 1997), makes these two remarks about loss of Japanese nationality in his contribution, "The representation of absence and the absence of representation: Korean victims of the atomic bomb" (pages 96-97, underscoring mine).

Weiner does not discuss how it came about the Koreans lost their Japanese in "1951".

Yoko Sellek's overview of the workings of the 1950 Nationality Law, in the same volume (pages 188, 202, and note 9, page 206) are par for course, which means they are not very good.

Weiner teamed with David Chapman in the updated version of this article in the second edition of the book (see Weiner and Chapman 2009 below).

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Koshiro 1999

Yoshiko Koshiro, in Trans-Pacific Racisms and the U.S. Occupation of Japan (New York: Columbia University Press, 1999), makes these statements about "Japanese citizenship" (pages 112-113, underscoring mine.

As its title suggests, the intent of Koshiro's book is to about "racism" on either side of the pacific. She thanks John Dower for reading an early version in her process of "improving the book" -- but whatever Dower might have suggested by way of improvement, the book remains an attempt to turn the history of the Occupation of Japan into a matter of "racism". In this respect, she follows Dower, though she seems to attribute more to "racism" than he does, and does so with much less political and legal nuancing. Koshiro tends find "racism" at the bottom of all status and treatment laws in Japan.

In the above citation, I have omitted long digressions not directly related to nationality, including many (some very odd) remarks about social and racial discrimiination.

"quasi-Japanese citizenship . . . status as Japanese citizens

The Empire of Japan did not define citizenship, but only subjecthood and nationality. As subjects and nationals of the Empire of Japan, Koreans were Japanese -- and all Japanese were equal with regard to their status as subjects and nationals.

"permanent address . . . national origin"

Koshiro's paraphrasing of Changsoo Lee's remarks are not entirely accurate, but she fails to understand the inaccuracies of Lee's characterization of legal status. "Permanent address" was Lee's translation tag for "honseki" -- which refers to the locality of one's main family register as a matter of territorial municipal affiliation. It is not a racial classification and it is not the equivalent of "national origin".

People migrated between territorial registers on account of alliances of marriage or adoption between the households in the register. Such migrations took place within larger legal territories -- such as the Interior (Naichi), Chōsen, and Taiwan -- as well as between the territories.

Suffrage was possible only for qualified persons domiciled in an election district, and only the Interior (but not everywhere in the Interior) had such districts. Under the 1925 universal male suffrage law, Chosenese and Taiwanese became eligible to vote if they were domiciled in an Interior district and were otherwise qualified. Japanese subjects domiciled in Chōsen or Taiwan, including Interior subjects, were unable to exercise rights of suffrage.

"Koreans and Chinese"

Koshiro conflates "Taiwanese Chinese" and "mainland Chinese" as "Chinese". There were clear status and treatment distinctions between "Taiwanese", who were Japanese nationals until formally enrolled in Republic of China nationality -- and "Chinese", who were Republic of China nationals. By the end of the Occupation, there were Chinese nationals whose nationality was unrelated to Taiwan, Chinese nationals who had been Taiwanese, and Taiwanese who had not become Chinese nationals.

"legal status . . . confusing"

Legal status was clear. Koreans were Japanese by virtue of retaining Japan's nationality. Treatment varied from time to time. The "confusion" arose mainly because SCAP directives and Japanese government announcements did not clarify the difference between status and treatment -- even when such terms were used.

"allowed to retain Japanese nationality"

This phrasing begs who, and under what authority, "allowed" Koreans to retain something it appears that most Koreans did not want and, at the time, denied they had -- while demanding treatment as "liberated nationals" on a par with United Nations nationals.

"the Japanese of course did not treat them as equals"

Such remarks mar much of Koshiro's writing, in which she constantly racializes "the Japanese" and "the Koreans". She slips between discussions of legal treatment and social discrimination as though they amounted to the same thing. She seems to thrive on speaking of "the Japanese" and "the Koreans" as monolithic entities.

In fact, most "Koreans" appear to have wanted to be treated differently from those they considered to be "Japanese" -- to the extent of receiving the privileges accorded United Nationals nationals, and even the extraterritorial protections accorded Occupation personnel.

More specifically about nationality choice, Koshiro writes this (pages 118-119, underscoring mine.

There are number of highly misleading statements here.

"Versailles Treaty"

The Versailles Treaty, signed on 28 June 1919 and enforced from 10 January 1920, was a peace treaty between the Allied and Associated Powers and Germany. The did not make provisions for "former colonial subjects" but for various persons that found themselves on one side or another of a new border resulting from territorial transfers. Options considerably varied with the territory being transfered.

Oddly, Koshiro does not refer to the treaty the Allied Powers signed with Italy in 1947, though this treaty was held to be a model for bilateral provisions between Japan and ROK by SCAP's Legal Section shortly after the start of talks between the two countries.

"negotiations began in on February 15, 1952

Negotiations for a normalization treaty and status agreement began on 20 October 1952. Several sessions, some in subcommittees dedicated to specific issues, were held between 20 October and 28 November 1951. The first round of talks intended to formalize some matters agreed to in the preliminary talks and further negotiate other matters raised in the preliminary talks were conducted from 15 February to 24 April 1952. A second round of talks was ran from 15 April to 23 July 1953, and a third round from 6-21 October 1953. The fourth round would not be held until 1957.

A draft normalization treaty, and a draft status and treatment agreement, were on the tables of respective subcommittees. By 1 April 1952, the two countries were in tentative agreement over status and treatment, though they continued to disagree on a number of territorial and property issues.

On 17 April Japan suggested that the two countries agree to sign off on what they could concede to and negotiate other issues later. ROK demurred, and on 18 April Japan suggested that, if ROK was not ready to sign anything, then the talks should be postponed until after the San Francisco Peace Treaty came into effect. ROK did not like the idea of having to negotiate with Japan as a sovereign state, but given the time constraints, agreed on 24 April to end the first round of talks without any agreement.

"doomed to become stateless aliens"

Koreans in Japan did not become stateless aliens. Stateless aliens have no nationality. Koreans in Japan were presumed to have acquired the nationality of the state that was presumed to have become the successor state to the territory of Chōsen (Korea), which Japan had lost under the terms of surrender its signed on 2 September 1945, and which Japan had formally abandoned in the San Francisco Peace Treaty.

The problem was not that Koreans were stateless, but that they were nationals of territory which as yet, in Japan's diplomatic regard, had no state. The territory had in fact been claimed by two states, ROK and DPRK, which were then at war, but Japan had yet to establish normal diplomatic relations with either state. In the meantime, Koreans in Japanese would be simply "Chosenese" (Chōsenjin) by presumed nationality. They were de facto, but not de jure, stateless -- and these are very different statuses.

"eligible for neither Japanese nationality nor immigration status"

Koreans, having lost Japanese nationality, were immediately eligible for application for naturalization. Many immediately applied and qualified. Several Chosenese who continued to be employed as national civil servants were even approved for naturaliation before they lost Japanese nationality, so that they would re-aquire Japanese nationality the moment they lost it on 28 April 1952, and thus be able to keep their civil service posts.

Most Chosenese nationality losers would have qualified for naturalization -- had they wanted to be Japanese again, and been willing to conform to the naturalization provisions in the 1950 Nationality Law. The provisions were essentially the same as those in the 1899 Nationality Law -- which means that they were on a par with international standards -- except that the 1950 law included a stipulation that would disqualify an applicant the Minister of Justice deemed to be a security threat to Japan on account of known subversive activities -- an Americanization aimed at revolutionary communists. Most Chosenese in Japan would have qualified for provisions that relaxed the general naturalization requisites. Those known to advocate the revolutionary thinking of Kim Il Sung would have faced difficulty.

As for immigration status, Chosenese who had lost Japanese nationality on 28 April 1952, if qualified under Potsdam rules regarding continuous residence, did not have to acquire a status of residence under the Immigration Law because their past residency status as Japanese was recognized as grounds for permitting them to continue to reside in Japan as aliens. Under a so-called Potsdam law, they aquired an exceptional status called 126-2-6, which evolved into today's Special Permanent Resident Status.

Koshiro says a lot about the "Immigration Control Law of 1952" -- actually the Immigration Control Order of 1951 -- and other status measures, much of it either wrong or misleading. She then says this about the Alien Registration Law of 1952 (page 120, underscoring mine).

Koshiro's allegations do not make sense.

"substantially the same"

The 1947 Alien Registration Order was an imperial ordinance, not a "SCAP-enacted" law. It was actually also an immigration control measure. And the 1952 Alien Registration Law was very different from the 1947 Order.

"required these foreign residents to apply . . .
within ninety days from their entry into Japan"

Under the 1952 law, all aliens in Japan -- except those qualified under Potsdam residency rules in accordance with another law (which Koshiro actually refers to) -- were required to register within sixty days of landing, while children born in Japan as aliens had to be registered within thirty days of their birth. But of course this applied only to aliens who arrived in Japan, or were born in Japan, after 28 April 1952.

Koreans and Formosans in Japan, who had lost their nationality, were already in Japan. These Koreans, and most of these Formosans, though they had not been aliens by nationality status, had been registered as aliens for purposes of registration under the 1947 order.

Meanwhile, all aliens who had been aliens by nationality, but had been excluded from alien treatment for purposes of immigration and registration under the 1947 order -- and who under the 1949 and 1951 immigration control orders stood to become aliens in treatment as well as status from 28 April 1952 -- were required, in a timely manner, to (1) acquire a status of residence under the statuses defined in the 1951 Immigration Control Order, and (2) register as aliens under the 1952 Alien Registration Law.

Chosenese and Taiwanese in Japan who had lost their Japanese nationality -- if they qualified under Potsdam residency rules -- were not, however, required to obtain a status of residence, provisions for which became effective from 28 April 1952 under the 1951 Immigration Control Order.

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Fukuoka 2000

Yasunori Fukuoka, in Lives of Young Koreans in Japan (Melbourne: Trans Pacific Press, 2000), says this, as translated by Tom Gill (pages 11-12, underscoring mine).

This book's strongest contribution is its revelation of the sheer complexity of "Koreans in Japan" through stories gleaned from interviews with individuals. It somewhat inadvertently demonstrates the sheer complexity of "Japanese in Japan" by heavily "ethnicizing" the "identity" of what it is supposed to mean to be "Korean" or "Japanese" apart from legal status.

The book's remarks about legal status are better than most but suffer some common problems. And, as with most translations of this kind, the English version, in substance and tone, misrepresents the Japanese original -- even allowing that the parts I have cited are adaptations more than translations of the original book.

Most of the phrases I have cited are also substantially found in the following book, which inspired the first part of the English book

福岡安則
在日韓国・朝鮮人
(若い世代のアイデンティティ)
東京：中央公論社
1993年12月10日印刷
1993年12月20日発行
234ページ (中央新書 1164)

Fukuoka Yasunori
Zainichi Kankoku·Chōsenjin
(Wakai sedai no aidentiti)
[Kankoku (nationals) and Chosenese in Japan
(Identities of the young generation)]
Tokyo: Chūō Kōron Sha
Printed 10 December 1993
Published 20 December 1993
234 pages, paper cover (Chūō Shinsho 1164)

The above book does not have end notes. The preface to the English version states that the introductory chapters have been "modified substantially" while the Conclusion is new, and that the "notes at the end . . . have been added to make the text more accessible to an English-reading audience" (Fukuoka 2000, page xix).

In the following comments, however, I will translate comparable phrases from the original (Fukuoka 1993).

"held Japanese nationality from
Japanese government's point of view"

The "point of view" from which Koreans (Chosenese) and Formosans (Taiwanese) continued to hold Japanese nationality could not have been that of the Japanese government, which during the Occupation of Japan did not have the authority to make such determinations. The Allied Powers, represented by Supreme Commander for the Allied Forces (SCAP), which governed the government of Japan, regarded people affiliated with territories separated from Japan, especially those who continued to be domiciled in Occupied Japan, as continuing to possess Japanese nationality under Japanese laws. In addition to their Japanese nationality status, of course, such persons course would also be subject to other status measures as determined by the Government of Japan under SCAP's direction or with SCAP's approval. Fukuoka alludes to this, though inadequately, in Note 7.

"in striking contrast to this position . . .
the government deprived [them] of the right to vote

The phrase "in striking contrast to this position" is not in the original text of the book being translated (Fukuoka 1993, page 37).

In fact, there is no "contrast" between the recognition of nationality and the non-recognition of rights of suffrage. The former is a status, the latter a treatment. Rights and duties (treatment) associated with nationality (status) can vary among persons holding the same nationality (status).

"the implication of this was that the Koreans,
who were Japanese nationals but did not hold
family registration on Japanese territory,
were not 'real' Japanese"

A comparable passage in the original book translates like this (Fukuoka 1993, pages 37, underscoring mine).

Fukuoka had made a distinction between "Japanese nationality" and "Japanese nationals" and referred to Chosenese as "'Japanese nationals' who held Japanese nationality" (page 36). The original is different from the English version in some other important aspects as well -- most conspicuously, perhaps, with respect to the fact that whereas Fukuoka accurately refers to "Chōsenjin" (Chosenese) in recognition of their historical status, the English translation conflates this to "Koreans".

Fukuoka's "Chosenese who do not have family registers in the Interior of Japan, are not real Japanese" -- could mean that there are "Chosenese" who have family registers in the Interior, and are therefore real Japanese. In fact, a "Chosenese" who migrated in an "Interior" register ceased being a "Chosenese", and in so far as the 1899 Nationality Law applied to Interior registers, people in Interior registers were "Japanese" (as were, however, also people in Taiwan and Chōsen registers).

Note also that, whereas the English version speaks of "Japanese territory", the original book refers to the "Interior of Japan". The two are not the same. Before Japan's surrender, "Japanese territory" included Chōsen and Taiwan. Under the terms of surrender, Japan was redefined as the prefectural Interior minus two prefectures and a few islands associated with other prefectures.

While Japan's national territory was radically redefined, "Interior" continued to be a legal reference to the prefectural entity, inclusive even of parts which were no longer parts of "Japan" as a legal territory. This is a technical but important distinction which was made during the Occupation of Japan, and continues to be made today in cases involving legacy status matters. Fukuoka was attempting to remain objective in his descriptions of formal status, and this objectivity is lost in translation because the standard of translation is "free" and "interpretive" rather than structural.

"flagrant abuse of ethnic Koreans' human rights"

The original book refers to the "treatment" of "Zainichi Kankoku·Chōsenjin" after 1952 as being of the same "rifujin-sa" (理不尽さ) -- "unreasonableness, unfairness, injustice" -- as before. It does not speak about "abuse of ethnic Koreans' human rights".

Note that the term "ethnic Koreans" is the English version is the translator's tag for "Zainichi Kankoku·Chōsenjin". As a legal status, this has nothing to do with "ethnicity" but refers only to (1) "Koreans" as nationals of ROK, and (2) "Chosenese" as persons who retain, in lieu of a recognized nationality, the legacy status of affiliation with a "Chōsen" family register, meaning a register somewhere on the Korean (Chōsen) peninsula.

In any case, what "human rights" did "Koreans" have as "ethnic Koreans"? And did "non-ethnic Koreans" have comparable "rights"?

I don't get the impression that "ethnic rights" as such existed as a matter of either international or domestic, much less occupation, law. The closest one might come to "ethnic rights" were those associated with so-called "national self-determination" -- understood to mean "ethnonational self-determination". But the collective (not individual) "right" of self-determination was clearly recognized by Allied "liberation" of Korea (Chōsen) from Japanese rule. And it was clearly reflected in the existence of ROK (not to mention DPRK). ROK insisted that "Chosenese" had always been "Koreans" and were now its nationals, whether in ROK (which, in ROK's view, included the provinces in DPRK) or in Japan.

"the government of Japan stripped
Japan-resident Koreans of Japanese nationality
without allowing them to choose between
Korean or Japanese nationality"

The text of the original book translates like this (Fukuoka 1993, pages 37, underscoring mine).

Note that "unilaterally" (一方的に) in the Japanese edition is missing from the English edition.

Note also that the original edition does not say "allowing them to choose between Korean or Japanese nationality" -- but says "stripped 'Japan nationality' from" Chosenese residing in Japan "while not recognizing room for choice of nationality" (国籍選択の余地を認めないまま . . . から「日本国籍」を剥奪した kokuseki sentaku no yochi o mitomenai mama . . . kara 'Nihon kokuseki' o hakudatsu shita). Kataoka does not specify what "nationality choice" Japan could have recognized -- and it is less obvious than it seems.

Japan did not have the authority to either "deprive" or "strip" Koreans of Japanese nationality. Assuming ROK and Japan had agreed to choice provisions, from Japan's point of view Chosenese domiciled in Japan would have remained Japanese by default -- and individual Chosenese would have been able to choose ROK nationality through procedures that involved ROK's recognition that the individual possessed its nationality.

The only unilateral provisions Japan could have made would have been to permit the Chosenese who wished to remain Japanese to establish and migrate to a family register in Japan. Japan could not itself had made any stipulations in its domestic Nationality Law about choice of ROK's nationality.

Regarding the Nationality Law, it has never been an instrument for stipulating who has, or does not have, Japanese nationality. It's only purpose is to provide criteria for individual acquisition or loss of nationality. Nationality choices would have been provided by treaties, which function as laws. The treaties themselves would have enabled the choices, and choice procedures would have probably have been stipulated in treaty enforcement laws and regulations. At most, the Nationality Law might have been revised with transitory measures that facilitated the treaty provisions and related procedures, in the form of supplementary regulations outside the articles of the National Law, if not in the enforcement regulations that govern the administration of law.

As for individual choices -- in fact, during its talks with ROK, contrary to ROK's view of nationality, Japan inisisted that Chosenese domiciled in its legal jurisdiction, who in Japan's (and SCAP's) view had not yet lost Japan's nationality, and hence still "belonged" to Japan -- have an individual choice regarding whether or not to be nationals of ROK or DPRK. Japan, assuming that by default Chosenese would revert to "Chōsen nationality" and lose their "Japanese nationality" as an effect of territorial separation, did not accept ROK's insistence that they were ipso facto ROK nationals.

Hence Kataoka's phrasing -- "while not recognizing room for choice of nationality" -- is literally incorrect, and the received English translation compounds the incorrectness by speaking of a choice which Japan was not empowered to offer except unilaterally. In other words, Japan's only choice -- as a moral choice -- would have been to unilaterally provide ways for Chosenese who chose to remain Japanese to create an Interior register within its postwar prefectural territory.

"directive from the US federal government"

The cited end note is not in the original book, but has been added to the English edition for the benefit of readers "with no specialist knowledge of Japanese society or the role of the Korean minority within it." Fukuoka hoped that readers who "have such knowledge will feel free to press on with the main text and ignore the notes." Unfortunately, some readers will be misinformed by some statements in the notes as well as by some remarks in the main text.

The directive, titled "Basic Directive for Post-Surrender Military Government in Japan Proper", was issued two months after Japan's formal surrender. As the Allied Power which had borne most of the military burden in defeating Japan, the United States government dominated the Occupation of Japan. But the directive was formally issued by the Joint Chiefs of Staff (JCS), which was formally part of the command structure for the Allied Powers.

The Allied Powers had empowered the United States to designate the Supreme Commander for all the Allied Powers (SCAP), and to direct the Occupation through him. For purposes of command, SCAP, as the head of a military government, had been placed under JCS, which had concurred in matters stipulated in the directive. The directive had been approved by the State-War-Navy Coordinating Committee (SWNCC), which coordinated US State Department and Pentagon policy.

A month after the directive was issued, the Allied Powers established a multinational Far Eastern Commission in Washington and an Allied Council in Tokyo. But the United States government continued to be recognized as the clearing house for the formulation of policy related to the Occupation of Japan, and SCAP would continue to take orders from competent US agencies.

While many writers thus speak of an "American Occupation" and a Peace Treaty between "Japan and America", the occupation and treaty were in the name of the Allied Powers. Allied declarations, and related surrenders, then directives and treaties, were legal acts by the Allied Powers as a collective entity. Formal directives to SCAP, and SCAP's directives to the government of Japan, constituted "occupation law" under the authority of the Allied Powers.

"citizens of the Japanese empire . . .
citizens of an enemy country"

The JCS directive to SCAP was worded like this (underscoring mine).

The terms "subjects" and "nationals" in the JCS directive are legally very precise. In back-translating Fukuoka's translation of the directive in terms of "citizens", Tom Gill has recast the language of the directive in a manner that has no foundation in Japanese domestic law as viewed by from the perspective of international law -- which was generally the intent of the Allied Powers, the intent of JCS, and in turn the intent of SCAP.

"Citizens" would be appropriate only in reference to status under the domestic laws of the United States, and a few other states at the time. Even today, the appropriate legal term for people who possess Japan's nationality is "nationals".

If Fukuoka and Gill were truly interested in helping readers understand facts, they might have gone to more trouble to verify them, and then correctly relate them.

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Kashiwazaki 2000

Chikako Kashiwazaki, in "The politics of legal status: The equation of nationality with ethnonational identity", in Sonia Ryang, editor, Koreans in Japan: Critical voices from the margin (London: Routledge, 2000), attempts to be objective about "nationality" in Japan as a matter of law, and almost succeeds. Yet she, too, reads more "ethnic" discrimination into the motivation for nationality legislation than is warranted by legal historical facts.

For example, Kashiwazaki makes these remarks about status and treatment during and after the Occupation of Japan (Ryang 2000, page 21, underscoring mine).

This is Kashiwazaki's introduction to what turns out to be a very confused discussion about nationality status and treatment.

"manipulated the ambiguity of the nationality status"

There was no ambiguity of nationality status and and no manipulation of nationality status. By nationality, Koreans remained Japanese, even as they were partly alienated in their treatment under various legal measures during the Occupation of Japan.

The Japanese government acted according to directives from the Supreme Commander for the Allied Powers (SCAP) in matters related to the treatment of people of various nationality statuses. SCAP did not manipulate nationality status, but manipulated treatment according to the implications of the terms of surrender -- namely, that Koreans (Chosenese) and Formosans (Taiwanese) were to be treated as "liberated nationals" -- to the point of facilitating their "repatriation" to "Korea" or "Formosa". Otherwise they would be subject to Japanese laws as Japanese nationals -- and, under SCAP direction or with SCAP approval, they would in some cases be treated like aliens.

"treating as 'Japanese nationals" . . . treat as effectively foreigners"

Koreans were treated in all cases as "Japanese nationals" -- except for purposes of registration related to repatriation -- when they and some other Japanese nationals were treated as "non-Japanese" for such purposes. This categorical treatment as "non-Japanese" did not, however, compromise their nationality status as Japanese -- nor was this treatment tantamount to treatment as "aliens" under the 1947 Alien Registration Order which was issued after the repatriation program ended.

Under the 1947 Alien Registration Order, Chosenese and Taiwanese domiciled in Occupied Japan were clearly Japanese by nationality status. But just as some aliens were excluded from treatment as aliens, Chosenese and most Taiwanese were alienated for purposes of treatment under the order. Status and treatment are not the same thing.

"citizenship rights"

Strictly speaking, Japan did not then -- and does not today -- define "citizenship rights" in the general sense that this expression tends to be used by writers in English. If by "citizenship rights" Kashiwazaki means "political rights" of suffrage she refers to in the next paragraph -- then yes, rights of suffrage, such as they had been defined for subjects of the Empire of Japan, were definitely suspended for Chosenese and Taiwanese domiciled in Occupied Japan, in the supplementary provisions to the 17 December 1945 revision to the 1925 House of Representatives Election Law, revised to lower to extend suffrage rights to women and lower the ages of eligibility to elect and be elected.

"denial of their rights as Japanese nationals
was most evident in the alien registration system"

No "rights as Japanese nationals" as such were denied Japanese nationals -- whether Chosenese or Japanese. Rights of suffrage were suspended, not denied -- as Kashiwazaki herself acknowledges in the next paragraph.

"a system institutionalized under colonialism"

The territorial register system was not "institutionalized" under colonialism. Taiwan and Chōsen already had register systems when they were incorporated into Japan. The "assimilationist" administration of these two territories, over the decades that they were part of Japan, was mainly oriented toward dismantling the differences in register systems to facilitate integration of the different legal systems.

The 1945 terms of surrender called for the separation of Formosa (Taiwan) and Korea (Chōsen) from Japanese control and jurisdiction, as well as from its sovereignty. And Japan -- as redefined by the Allied Powers, based on the prefectural Interior (Naichi) or "Japan proper" minus a couple of prefectures and a few islands associated with other prefectures -- lost its own sovereignty as an occupied entity under SCAP's military government. Under SCAP's direction, Japan lost all governmental and administrative say in the "outlying areas" -- i.e., "gaichi" -- which had been separated from the Empire of Japan, hence no longer had any say in the overseeing of Korean and Formosan registers.

Within Occupied Japan, however, SCAP permitted Japan to continue to administer private matters of Formosans and Koreans as domiciled in Japan according to the territorially different rules which had applied to Formosa and Korea before Japan surrendered these territories. The obvious reason for this is that SCAP, as a military government, was obliged to maintain law and order -- on the streets as well as in government halls -- under existing measures, until which time they could be changed as required by policy or circumstances.

When it comes to the lawful and orderly transition of authority, certain things need to be done before other things. And regarding the legal status and treatment of Formosans and Koreans, particularly those who remained in Occupied Japan, there needed to be, first and foremost, a peace treaty between Japan and the Allied Powers. Such a treaty would not be signed until 1951, and that treaty left Japan to directly negotiate settlements with, as it turned out, the Republic of China (ROC) and the Republic of Korea (ROK).

"restrictive system of nationality regulation"

The 1950 Nationality Law was essentially a revamping of the 1899 Nationality Law in consideration of (1) provisions in the 1947 Constitution regarding the dignity of the individual and equality of status in family law, an (2) recent global trends in nationality practices. It is not proper to define these changes as "restrictive".

Japan's jus sanguinis standard was in 1899, and remained in 1950, and continues today to be the most conventional nationality standard in the world.

Naturalization provisions in the 1950 law were essentially those of the 1899 law, and again those provisions are fairly par for the course as far as global standards are concerned.

Japan had always had an "immigration control system" if by this one means rules for exiting or entering the country. The postwar version of this "system" in no way effected, or hinged on, the "nationality system".

"uniform loss of Japanese nationality by ex-colonial subjects"

The separation of Korea (Chōsen) and Formosa (Taiwan) from Japan, provisionally pursuant to the 1945 terms of surrender, and formally pursuant to the 1952 San Francisco Peace Treaty, was the legal cause for Chosenese and Taiwanese to lose Japanese nationality. This had nothing to do with the Nationality Law.

"further required the non-Japanese
residing in Japan to register as aliens"

The 1947 Alien Registration Order first defined aliens in a manner that clearly implied that Chosenese and Taiwanese were not aliens, and excluded various categories of aliens from application of the law -- which also included rules for entering the country. Then the order required persons not excluded from the legal definition of alien to register. Then Chosenese, and most Taiwanese, were declared to be aliens for the purpose of applying the law.

In other words, Chosenese and Taiwanese remained Japanese by status, but were treated as aliens for the alien registration purposes. This was perfectly legal, as nationality was merely status and not a "bundle of rights and duties" -- as Kashiwazaki herself had correctly differentiated "nationality" and "citizenship" (page 14). Along the way, she frequently ignored the implications of her own distinction between these two terms.

Regarding nationality choice, Kashiwazaki makes these statements (pages 22-23, underscoring mine).

As an argument, this is well structured. The problem is, some of its premises and allegations are incorrect.

Kashiwazaki captures the evolution of some of the political dynamics fairly well. She fails, though, to mention other dynamics and factors that complicate her reduction of Japan's decision regarding the possession of its nationality by Chosenese and Taiwanese to a matter of not wanting ethnic minorities among its nationals.

"SCAP did not specifically require an option right clause for nationality"

Until which point it no longer had any authority over the matter, SCAP did in fact directly "intervene" in the determination of nationality during the Occupation of Japan -- in the capacity of conducting Japan's foreign affairs. It "intervened" on behalf of ROC, an Allied Power, in permitting ROC's mission in Japan to enroll domiciled Taiwanese in its nationality, and this recognition was embedded in Japanese legal measures accommodating SCAP determinations.

SCAP was, after all, the governmental embodiment of the Allied Powers in Japan. It had absolute authority, and it carried out the policy of the Allied Powers that Japanese nationality would not be arbitrarily taken away from those deemed to possess it -- most notably Taiwanese and Koreans.

The San Francisco Peace Treaty was negotiated between the Allied Powers and Japan, not between SCAP and Japan. SCAP had no authority, before or after the signing of the treaty, to impose matters on Japan that were expected to be treaty matters. And after the treaty was signed, SCAP could not make demands on Japan that were not in accord the treaty's provisions.

The Republic of China (ROC), an Allied Powers, was not invited to participate because of conflicts among some of the other Allied Powers over the recognition of "China". The Republic of Korea, which wanted to participate, was not qualified because it had come into existence in 1948, after the war, and did not otherwise qualify as an Allied Power which had been at war with Japan.

The Allied Powers were also politically divided over whether to stipulate specific successor states regarding Formosa and Korea. The United States -- considering of course its own interests in the territorial confrontations involving "China" and "Korea" -- prevailed in its opinion, articulated mainly by John Foster Dulles, that the peace treaty could not -- in the manner of conventional peace treaties, stipulate successor states, or otherwise impose conditions on states that would not join the treaty -- including, as it turned out, the Soviet Union, which participated in the peace conference but declined to be included in, or sign, the treaty.

SCAP played the role of facilitating (encouraging, even forcing) Japan and ROC, and Japan and ROK, to negotiate suitable treaties. But the Allied Powers no longer had a right to dictate the terms of the treaties, so long as they did not violate any terms of the San Francisco Peace Treaty. In other words, Japan and ROC, and Japan and ROK, were left to negotiate agreements as sovereign states -- with the understanding that the treaties would not be signed until the San Francisco Peace Treaty came into effect and Japan recovered its sovereignty and full diplomatic rights.

SCAP was in a position, of course, to observe early rounds of such talks, as they were convened in Tokyo. The final rounds of the Japan-ROK talks were shifted to Taipei. Japan-ROK talks continued to be held only in Japan, for reasons I suspect had a lot to do with security in ROK, which was then embroiled in a war with DRPK.

"option rights would have obliged the Japanese state to accept the choices made by Korean individuals"

How would "Korean individuals" have been defined? On the basis of family registers -- a raceless civil status having nothing to do with ancestry or language? On the basis of native or customary language -- a personal attribute having nothing to do with civil status or ancestry? On the basis of some degree of ancestry with the Korean peninsula -- having nothing to do with present civil status or language?

Because provisions for status options are likely to be made for qualified people on either side of a changed national border, ROK would also have been obliged to accept the choices made by "Japanese individuals" -- again, depending on how such individuals were defined in the option provisions. And, also if following recent precedents, such as the treaty the Allied Powers had signed with Italy in 1947, both Japan and ROK would have reserved the right to require that persons in their own jurisdictions, who opted for the nationality of the other state, physically move to the other state.

"to deprive all Koreans of Japanese nationality in due course"

Kashiwazaki is citing only a fragment of Kim Taigi's observations, and entirely out of their broader context.

See my digests of what Kim writes at Kim 1997 in "Postwar nationality" article.

"against international norms regarding statelessness and to stipulate the uniform loss of Japanese nationality"

Japan's regard that Chosenese and Taiwanese had lost their Japanese nationality concomitant with the separation of Chōsen and Taiwan from its national territory, in 1952, did not result in statelessness. Japan's position -- and legally it is correct -- was that the intent of the Allied Powers was that Koreans (Chosenese) would become the nationals of Korea (Chōsen) -- i.e., the state of Korea that would be established in Chōsen -- while Formosans (Taiwanese) would become nationals of the Republic of China. Ordinarily, these would have been the default nationalities in a conventional peace treaty that provided for territorial transfers and related status changes. In addition to such defaults, there would ordinarily have been provisions for some such people, depending on where they were domiciled and other qualifications as determined by the treaty, to chose a nationality.

Such "international norms" as existed in such treaties were very broad, and each territorial transfer and related status agreement varied according to conditions between the concerned states.

More importantly, Japan did not regard that "Chosenese" had become stateless. And most certainly they did not. They became "nationals" of "Korea" (Chōsen), and whether that meant they possessed the nationality of the Republic of Korea (ROK), or that of the Democratic People's Republic of Korea (DPRK), would be matter of whether Japan recognized either or both of these states, and whether individual Chosenese chose to be affiliated with one or the other of these states, and whether these states recognized their choice. In the meantime, they would be "Chosenese" by nationality. That this made them de facto stateless is not in violation of any "international norm" regarding "statelessness".

For more about what Kashiwazaki writes about nationality, correctly and incorrectly, see my review of Kashiwazaki 2000 in the Bibliographies section of this website.

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Ryang 2000

Sonia Ryang, in the introduction of her edited collection of articles, Koreans in Japan: Critical voices from the margin (London: Routledge, 2000), writes this (Ryang 2000, page 4, underscoring mine).

Ryang somewhat misrepresents what Kashiwazaki actually wrote, but worse, she makes allegations which are not historically or legally factual.

"guaranteed Korean independence from Japan"

The 1943 Cairo Declaration vowed that Korea would "in due course . . become free and independent." Japan's general surrender on 2 September 1945, and its surrenders later that month of Korea to the Soviet Union and the United States, "liberated" Korea from Japanese rule, and 1948 two "free and independent" Korean states were established in Korea. The San Francisco Peace Treaty made no reference to either of these states, and no reference to "Korea" becoming "free and independent" on account of the treaty.

"simultaneously deprived Koreans resident in Japan of Japanese citizenship"

The San Francisco Peace Treaty made no provisions whatever regarding Koreans, anywhere. Japan regarded the formal territorial effects of the treaty as due cause for Chosenese and Taiwanese everywhere to lose its nationality. This loss of Japanese nationality reflected Japan's "policy" only to the extent that Japan chose not to unilaterally provide Chosenese and some Taiwanese in Japan, who might like to continue being Japanese, to establish family registers within Japan.

Neither the Republic of China (ROC) nor the Republic of Korea (ROK), in their negotiations with Japan, overseen by SCAP between 1951-1952, objected to Japan's "policy" of requiring that people who would lose its nationality would have to naturalize if they wished again to be Japanese. Japan's choice was recognized as being within its powers as a sovereign state to determine the parameters of, and qualifications for, it's own nationality. Whether its choice was "moral" or "wise" from whatever point of view can be debated.

"the possibility of deportation to North or South Korea"

Japan could not have deported any Koreans in Japan to any state unwilling to accept them. And ROK and DPRK would have been obliged to accept them only if they and Japan had normalized their relationship or otherwise agreed to deportation rules. The deportation issue was a stumbling block between Japan and ROK throughout their normalization treaty and status agreement negotiations.

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Yoneyama 2000

Lisa Yoneyama begins her article on the author Yu Miri, in Sonia Ryang, editor, Koreans in Japan: Critical voices from the margin (London: Routledge, 2000), like this (Ryang 2000, page 103, and note 1, page 117, italics Yoneyama's, underscoring mine).

Yonemura makes several wrong or misleading allegations here.

"forcibly relocated, or obliged to leave Korea"

The vast majority of Koreans in Japan today are the descendants of people who migrated to Japan's prefectural Interior for personal or family reasons. Some of these migrants were undoubtedly motivated by economic conditions related to Japanese rule in Korea, but some just as undoubtedly ventured to the Interior in pursuit of what amounted to a "Japanese dream". Many such migrants returned to the peninsula, but others settled, were joined by their families, or made families -- for many reasons, not easily reduced to a question of "obligation" -- unless one chose not to recognize "free will" in choosing between available options.

Most migrations resulting from conscription for purposes of labor in the Interior, or in some cases abduction for such purposes, took place between 1938 and 1941, after the start of the military campaigns in China and before Japan's attack on Pearl Harbor. Most such laborers returned to Korea after World War II.

It is fine to factor in "US Cold War hegemony in the region" into the consideration of the political environment in at least the southern half of Occupied Korea and in Occupied Japan -- never mind the Allied Powers were collectively responsible for dividing the occupation of Korea between the Soviet Union and the United States. Not only did the "cold war" involve several states, but it was anything but "cold". Korea and China were revolutionary tinderboxes, and the success of the revolution in China, in 1949, had a lot to do with encouraging the revolution unfolding in Korea, and the spilling over of the revolutionary spirit in Korea to Koreans in Japan.

"unilaterally declared non-Japanese"
"collaborative US and Japanese policy"

Japan took its orders regarding legal status from the Supreme Commander for the Allied Forces, which took his orders from the Joint Chiefs of Staff and other competent US agencies -- on behalf of the Allied Powers. There was no "collaboration" in the determination, in November 1945, that Koreans, Formosans, and some others who would continue to retain Japanese nationality would be treated as "non-Japanese" for purposes of repatriation. This was a unilateral Allied determination. The treatment of Chosenese (Koreans) and some Taiwanese (Formosans) as "aliens" for purposes of applying the 1947 Alien Registration Order was also essentially according to SCAP's direction.

The treatment from November 1945 as "non-Japanese" for purposes of repatriation probably effected the suspension of rights of suffrage for people in Chōsen and Taiwan registers in December 1945. This "disenfranchisement" was not to their treatment as "aliens" for purposes of registration from April 1947.

The Korean War did not begin until June 1950. More Koreans who had not repatriated on their own, or elected to repatriate under the repatriation program that ran through the end of 1946, might have relocated to Korea between 1947 and 1950 had conditions there been more inviting.

While the conflicts between the United States and the Soviet Union over the artificial division of Korea for occupation purposes were significant, much of the turmoil within the southern US sector, which became the Republic of Korea (ROK) in 1948, seems to have been due to divisiveness among Koreans, including those who had converged on the peninsula for the purpose of constructing an independent Korean state. It takes an enormous cooperative effort for any population to pull together for the purpose of collective survival, and it took a lot of sheer political "force" and even military "might" to hold together what became ROK in the south and the Democratic People's Republic of Korea (DPRK) in the north.

The Korean War could be blamed on the United States for withdrawing its military forces from ROK, thus leaving it open to attack from DPRK. But even this suggests that there was more to the situation on the peninsula that "US Cold War hegemony".

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Takemae 2002

Takemae Eiji makes the following statements in Inside GHQ: The Allied Occupation of Japan and its Legacy (New York: Continuum, 2002, page 511, italics in original, underscoring mine)

There are a number of serious contradictions and errors in the cited excerpts from the above paragraph and end note. Whether the contentions are those of Takemae, or of his translators, who adapted and expanded his work, are not clear. See review of Takemae 2002 for a full citation of the paragraph and end note, commentary.

For present purposes I would would point out only the following problems.

1. The text speaks first of "citizenship" and "Koreans and Chinese" -- then speaks of "nationality" and "Koreans and Formosans". Which is it? Only "Formosans" (Taiwanese) -- not "Chinese" -- lost Japanese nationality. And to the extent that "citizenship" existed, in the form of rights of suffrage, then "citizenship" had already been suspended for people in Korean and Formosan family registers since December 1945. Nationality, an entirely different matter, had not been suspended.
2. If, as the end note claims, neither Japan nor ROK, was "prepared to offer Koreans a choice" of opting for Japanese nationality -- and if "the Korean movement in Japan" did not ever "formulate such a demand" for choice of Japanese nationality -- then how could Japan's regard that Koreans would lose their nationality have been "unilateral"?
3. If, also as the end note claims, all three parties conflated "ethnic identity, nationality and citizenship" -- then why did "Japanese women married to former colonials" also lose their nationality?

The facts beg a different explanation.

The the Diplomatic Section of SCAP "brokered" the first bilateral talks between Japan and ROK on 20 October 1951. From the start of these preliminary talks, which ended on 28 November 1951, it was clear there could be no choice provision in a bilateral agreement. William Sebald, DS's chief, essentially in charge of expediting talks between Japan and both ROC and ROK, had told all parties that SCAP would not interfere in whatever they agreed to. The authority of the Allied Powers to dictate treaty terms to Japan had essentially passed when the Allied Powers and Japan signed the San Francisco Peace Treaty.

Regarding the bilateral talks between Japan and ROK, Alva Carpenter, the chief of SCAP's Legal Section, advised DS, during the first month of the preliminary talks, that there should be provisions for choice, such as those in the 1947 peace treaty the Allied Powers had signed with Italy. But LS had no say in the matter.

Not only were Japan and ROK not negotiating a peace treaty, but since accepting the terms of surrender in 1945, Japan had no legal diplomatic standing regarding either (1) the territory of "Korea" (Chōsen), over which it had agreed to renounce "all right, title and claim" in the San Francisco Peace Treaty, and (2) the nationality of the states that had been created on the divided territory. Moreover, concomitant with the effectuation of the San Francisco Peace Treaty, Japan would no longer be able to attribute its nationality to people in Chōsen (Korean) or Taiwan (Formosan) registers -- except by providing unilateral measures for establishing registers in Japan.

For more about what Takemae and his translators write about nationality, see my review of Takemae 2002 in the Bibliographies section of this website.

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Ishikida 2005

Miki Y. Ishikida makes remarks like these in Living Together: Minority People and Disadvantaged Groups in Japan (New York: iUniverse, 2005) (pages 56-58, underscoring mine).

Ishikida's book, which is not particularly reliable, would have been slightly better had it been properly edited for odd English phrasing. I am grouping related statements together for the purpose of address common faults.

"lost their Japanese nationality"
"could stay in Japan as aliens"
became legal residents"

It is refreshing to read simply that Koreans in Japan simply "lost their Japanese nationality". The vast majority, however, had been legal residents at the time Japan surrendered on 2 September 1945, and remained legal residents throughout the occupation, and hence remained legal residents when the occupation ended on 28 April 1952.

While not yet de jure aliens before the San Francisco Peace Treaty came into effect, they had been "non-Japanese" for purposes of repatriation since November 1945, and "aliens" for purposes of alien registration since April 1947. As de jure aliens, however, only those who qualified in terms of continuous residency since 2 September 1945 or after birth before April 1952 qualified for an exceptional status of residence -- which became the basis of later treaty-based permanent statuses.

"granted a special permanent residency"

In 1965, Japan did not grant -- but Japan and ROK agreed in a separate status agreement signed when they signed their their normalization treaty -- that qualified ROK nationals would be recognized as general permanent residents upon notification of their ROK status. It was not a "special permanent residency" but "Agreement Permanent Residency". The early date of qualification was 15 August 1945, in recognition of ROK's view of when Korea was "liberated" from Japan.

"North Koreans and Taiwanese"

Japan did not recognize that Chosenese who had not migrated to ROK nationality were "North Koreans". Practically "Taiwanese" in Japan had become nationals of the Republic of China, and were hence "Chinese", during the occupation.

North Koreans and Taiwanese, kept their legal residency. In order to comply with the 1981 ratification of the U.N. Refugee Convention, the Japanese government granted the same special permanent residency to North Korean residents and South Korean residents.

"the same special permanent residency"

The "Special Measure Permanent Residence" was given qualified Chosenese who had not migrated to ROK status was covered by a 12 June 1981 revision, effective from 1 January 1982, of the Alien Registration Law. Japan did not sign or ratify the Convention Relating to the Status of Refugees, but acceded to it on 3 October 1981, and it entered into force in Japan on 1 January 1982. However, the main impetus for the extension of permanent residence to qualified Chosenese had to do with talks between Japan and ROK 25 years after their 1965 status agreement had come into force, which was on 17 January 1966.

Unlike the 1966 "Agreement Permanent Residence" status, however, the 1982 "Special Measure Permanent Residence" status was not differentiated from General Permanent Residence, and in status of residence statistics it was subsumed under General Permanent Residence.

"all Koreans with permanent residency"

Only aliens who are qualified in terms of continuous residence under Potsdam-related rules qualify for the status of "Special Permanent Resident" defined by a special law concerning exit-entry-country (immigration) control enforced from 1 November 1991. Many Koreans with permanent residency do not qualify for this special status, which is held by aliens representing about fifty (50) nationalities as of this writing.

For more about Ishikida's understanding of minorities in Japan, see my review of Ishikida 2005 in the Bibliographies section of this website.

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Soo im Lee 2006

Soo im Lee, in "The Cultural Exclusiveness of Ethnocentrism: Japan's Treatment of Foreign Residents", in Soo im Lee, Stephen Murphy-Shigematsu, and Harumi Befu (editors), Japan's Diversity Dilemmas: Ethnicity, Citizenship, and Education, Lincoln (NE): iUniverse, 2006), wrote this (page 108, italics Kim's, underscoring mine).

I simply don't know where to begin, and if I began I might never finish. So I have marked only remarks that touch upon legal status for comment.

"Korea became one prefecture"

The Empire of Korea became Chōsen. Throughout the period that Chōsen was part of it Japan, it remained a territory legally distinct from the prefectural Interior.

"expanded or limited . . . nationality and citizenship differently"

Japanese nationality is an attribute of civil status, and as such it's value has not changed. A person either has or does not have nationality, and Chosenese had Japanese nationality from 1910 to 1952. Japan's laws did not then, and do not now, define "citizenship" but defines rights and duties that vary according to an individual's status, including nationality status -- and, yes, have somewhat varied according political conditions.

"what limited rights they had were eradicated in 1952"

Chosenese domiciled in election districts in the prefectural Interior had rights of suffrage on a par with those of other domiciled Japanese. These rights were "for the present suspended" in the December 1945 revision of the 1925 Election Law. Generally, other rights they had as possessors of Japanese nationality were not limited during during the Occupation of Japan. While they did lose certain rights when they lost Japanese nationality in 1952, as aliens domiciled in Japan they continued to have most of the rights provided for Japanese nationals.

"used the nationality clause to draw a boundary that Koreans cannot pass"

I know of no "nationality clause" in Japanese law which draws a line that Koreans "cannot pass" -- unless we are talking about the nationality of a child born in Japan to a Korean husband and wife. But if the husband and wife naturalize, the child will also be naturalized. And the child can naturalize when older.

Except for cases of dual nationality, one is either a Korean or a Japanese, not both. Dual Korean-Japanese nationals in Japan are generally domiciled as Japanese, and as such they are not, under Japanese law, Koreans. All Koreans in Japan who have naturalized have crossed the line and become Japanese -- including Kim herself.

Significantly, though, most descendants born to Koreans in Japan since 1952 have been Japanese from birth -- since Koreans in Japan predominately marry Japanese.

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Wetherall 2006

This is my own statement, made in my article on "Nationality in Japan" in Soo im Lee, Stephen Murphy-Shigematsu, and Harumi Befu (editors), Japan's Diversity Dilemmas: Ethnicity, Citizenship, and Education, Lincoln (NE): iUniverse, 2006, page 27, underscoring added for commentary here).

I would like to say that, by 2006, I was finally "getting there" -- beginning to understand what was going on in the legal implications of the political choices exercised by Japan and the Republic of Korea (ROK) in their 1951-1952 bilateral talks. In fact, there are quite a few errors in the above paragraphs.

"Taiwanese and Koreans . . . Taiwan and Korea"

Strictly speaking, this should be either "Taiwanese and Chosenese . . . Taiwan and Chōsen" in conformity with Japanese usage, or "Formosans and Koreans . . . Formosa and Korea" in conformity with contemporary English usage. Note that contemporary Japanese usage, at least in legal contexts, is more accurate.

"domiciled in their claimed territories"

This should be "affiliated with their claimed sovereign national territories" -- whether domiciled inside or outside these territories. The term "domiciled" was intended to refer to "honseki" (本籍) as one's "principle (primary) domicile" but a "honseki" is actually an affiliation with a state -- while "domicile" refers to where one legally resides."

"choose to be Japanese"

This is not meant to imply that they were not Japanese, but to be clearer I should probably have written "choose to remain Japanese". And probably the arrangement would have been "choose to remain Japanese rather than opt to be Koreans".

If, when beginning to negotiate their normalization treaty and status agreement in 1951-1952, Japan and the Republic of Korea (ROK) had chosen to include nationality options like those made in the treaty the Allied Powers signed with Italy in 1947, Chosenese domiciled in Japan would have remained Japanese by default of Japan's territorial loss of Chōsen. And any Japanese domiciled in Japan would have been able to opt for ROK nationality if they customarily spoke Korean -- with the proviso that Japan would have had the right to require, should it wish to, that those who opted for ROK nationality would have to leave Japan, presumably for ROK.

And strictly speaking, if ROK and Japan had agreed to such a provision for Japan, ROK would have had to reciprocate. I.e., domiciled Interiorites in ROK would have become ROK nationals by default, and those who customarily spoke Japanese would have had the option of choosing to be Japanese -- again, with the proviso that ROK would have the right to require that they leave ROK.

"international laws"

This should be just "international law".

"Since 1945"

This qualification should have been deleted, since Japan had not -- even before this -- disregarded the rights of other states to determine the parameters of their own nationality. If anything, Japan had bent its 1899 Nationality Law to diplomatic demands of other states to make provisions in its law to facilitate their views of Japanese nationality, in particular their dislike of Japan's tolerance of dual nationality when acquired at time of birth.

"diplomatic caution"

The "diplomatic" should be deleted, since the "caution" is both legal and diplomatic.

"stayers and their descendants"

The should be "stayers and their alien descendants", since most descendants of the stayer popular are Japanese.

"with PRC's and ROK's approval"

The "approval" here should be qualified by "diplomatic" -- since Japan does not require the legal approval of another state to unilaterally offer its nationality to the nationals of other states. Diplomatically, though, such acts can create considerable friction.

ROK itself discovered this in 2003 when the People's Republic of China learned that there was talk in ROK of extending its nationality to all people overseas who it regarded as "overseas compatriots" on the basis of lineage, which would have included an estimated 2.6 million Chinese, 520,000 people in the former Soviet Union (CIS), and as many as 150,000 people in Japan. PRC saw this as an attempt to compromise the loyalties it demanded from Chinese it recognized as being "Koreans" (C 朝鲜族 < CJ 朝鮮族 > J 朝鮮族, PY Cháoxiănzú) [lit. "Korean (Chosen) clan (race)"] under its "minority nationality [ethnonation] (少数民族) classification system. Such such "Koreans" live in the "Yanbian Korean Autonomous Prefecture" (C 延边朝鲜族自治州 < CJ 延邊朝鮮族自治州 > J 延辺朝鮮族自治州, PY Yán biān Cháoxiănzú Zìzhì Zhōu) in Jilin Province.

PRC -- which had once (as had ROC) sought to embrace the national loyalties of "overseas Chinese" on the basis of their putative Chinese "lineage" -- has also been forced by diplomatic conflicts to recognize that Malaysians of "Chinese" descent are Malaysians.

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Morris-Suzuki 2007

Tessa Morris-Suzuki is an advocate for what for lack of a better expression I would call "historical justice" for Koreans in Japan -- a concern I also share. In her attempts to develop an understanding of how some Koreans in Japan have been victimized by political circumstances, she writes with passion, conviction, and not a little scholarly clout in the form of finely printed notes.

In Exodus to North Korea: Shadows from Japan's cold war (Lanham: Rowman & Littlefield Publishers, 2007), she asks -- "What was to become of the nationality of Zainichi Koreans when the postwar Peace Treaty came into force and Japan was formally and irrevocably severed from its former empire?" Some statements in her answer to this question are correct. Some of her own notes betray other statements as incorrect or misleading.

Take, for example, this statement (page 65, underscoring mine).

This is not an unreasonable statement but it oversimplifies legal realities.

"precedent suggested"

Provisions for choice have been made in bilateral or multilateral treaties at the discretion of the party states -- in all manner of situations, not simply "when colonial empires fell apart". Moreover, qualifications for such choices, and the consequences of choosing a nationality, have also been at the discretion of the party states. And choices of nationality have almost always had consequences under the domestic laws of the state governing the nationality.

"in this case"

Assuming that by "this case" Morris-Suzuki means only the choice that might have been given so-called "Zainichi Koreans", what legal precedent does she imagine would have been followed?

How would "Koreans" have been defined? And what would have been the consequences of choosing "to retain their existing Japanese nationality" as opposed to choosing "to adopt the nationality of the newly independent Korea"?

If based on the precedent of the 1947 Peace Treaty between the Allied Powers and Italy, then the following conditions would have obtained in Japan.

1. "Koreans" in Japan would have been regarded as Japanese.
2. Such Japanese whose "customary language" was Korean could apply to a Korean diplomatic or consular representative in Japan, and acquire Korean nationality if the Korean authorities accepted their request.
3. The Japanese government would have been empowered to require such Japanese who opted for "Korean" nationality to transfer their residence to "Korea" within one year from the date of official communication from Korea through diplomatic channels confirming their acquisition of Korean nationality.
4. Moreover, the above conditions would essentially apply also to people in "Korea" whose customary language was "Japanese".

In the eyes of both Japan and ROK, "Koreans" were people in "Korean" registers -- though Japan considered these "Chōsen" registers, while ROK considered them "Kankoku" registers. Japan and ROK held fundamentally different views regarding appropriate nomenclature -- but Japan's position was legally stronger.

"the nationality of the newly independent Korea"

Which "newly independent Korea"?

Morris-Suzuki goes on to make this statement (page 65, underscoring mine).

Yes, the notification issued by the Civil Affairs Bureau of the Attorney General's Office on 19 April 1952 was an announcement was unilateral. It could not have been otherwise. And, yes, Korean and Japanese residents in Japan were given no say in the matter.

Japan, however, had announced its position -- long in the making -- to both the Republic of China (ROC) and the Republic of Korea (ROK) at the start of their separate bilateral talks, which were convened in Tokyo by the Diplomatic Section of the General Headquarters of the Supreme Powers for the Allied Powers, in the fall of 1951, shortly after the Allied Powers and Japan signed the San Francisco Peace Treaty.

Japan's position included the provision that Chosenese and Taiwanese who would lose their Japanese nationality could naturalize if they wished to again be Japanese. Neither ROC nor ROK insisted on provisions for nationality choice.

Most Taiwanese who had remained domiciled in Occupied Japan had already legally migrated to ROC's nationality, and their loss of Japanese nationality as an effect of Japan's renunciation of rights over Taiwan would be a mere formality. ROK had yet to establish a legal standing for its nationality in Occupied Japan, and Morris-Suzuki's description of Japan's and ROK's positions on their respective nationalities is somewhat at odds with (pages 65-66, underscoring mine).

ROK took the position that what Japan did with its nationality was a matter of its domestic law, as was the right of all sovereign states, and hence what Japan's nationality did not qualify as a topic for their bilateral talks. All the mattered to ROK was how Japan would treat its nationals in Japan.

ROK had been protesting Japan's "approach" to the status of "Koreans in Japan" -- which was based on Japan's domestic laws under direction from SCAP and with SCAP's approval -- for months before the start of ROK-Japan talks, at first under SCAP observation, in October 1951. In considering that "Koreans in Japan" would "recover" the nationality of "Korea" and lose Japanese nationality when the treaty came into effect -- the date of effectuation had not yet been fixed -- Japan explicitly did not consider Koreans in Japan to be ROK nationals, which was partly what upset ROK.

"the redefinition of Koreans in Japan as Korean citizens"
"[ROK] too defined all Zainichi Koreans as [its] citizens"

Japan did not, in fact, "redefine" Koreans in Japan as nationals -- much less "citizens" -- of either "Korea" or of either of the two Korean states that both claimed "Korea". Japan argued that it did not have the authority to determine what nationality they would have. Japan was in the position of accepting the consequences of renouncing "all right, title and claim" to "Korea" (Chōsen), pursuant to the terms of the San Francisco Peace Treaty, which reflected the terms of surrender. Japan had no standing in the matter -- except that, when it regained its sovereignty, it would be in a position to establish normal diplomatic relations with ROK. And when this happened, it would recognize a person who had lost its nationality, as an ROK national, if the person became a national of ROK through legal procedures in accordance with ROK's laws.

This, too, was fully in accordance with the provisions in the treaty the Allied Powers had concluded with Italy in 1947. In other words, nationality would not arbitrarily be recognized without formal procedures. Japan did not have the authority to decide toward which which Korean state Koreans in Japan should be loyal.

During the 1951-1952 talks, Japan refused to accept ROK's view that Chosenese in Japan were already ROK's nationals. In time, ROK accepted Japan's position that it was legally unable to regard a Chosenese individual in Japan as Korean unless the individual formally acquired ROK's nationality through some sort of legal procedure with an ROK agent that resulted in the issuance of a document certifying that the individual was a national of ROK.

"instead of being treated like other foreigners in Japan"

ROK had demanded that Japan accord Koreans in Japan "national treatment" -- meaning treatment, as aliens, on a par with Japanese nationals. Japan of course refused. Japan then offered to accord qualified Koreans permanent residence, and ROK accepted this.

I would guess that ROK accepted Japan's offer out of an understanding that its demand for "national treatment" had been unreasonable given the distinctions that states conventionally make between their own nationals and aliens. But ROK must also have understood the implications of the provisions in the 1947 treaty the Allied Powers had concluded with Italy, should there be any insistence from Japan, or SCAP, that there be provisions for nationality choice, and that the provisions be reciprocal.

The possibility of deporting Koreans in Japan had already been considered by some individuals within the Japanese government and also with SCAP, but the idea had been rejected on legal and moral grounds. But normalization treaties ordinarily agreements concerning deportation, and grounds for deportation remained a contentious issue between Japan and ROK. There would, of course, be no mass deportation, which ROK would have had to accept that Italian-treaty rules been forced on the two states by the San Francisco Peace Treaty.

In fact, nothing in the Peace Treaty gave SCAP the authority to dictate normalization treaty terms to Japan, and SCAP had absolutely no authority over ROK. And William Sebald, the chief of SCAP's Diplomatic Section, who had inaugurated the ROK-Japan talks, had given the two states the assurance that they were free to work things out between themselves. SCAP would accept what they agreed to.

Both states were negotiating with the free hands they had been dealt. And the whole purpose of negotiation is to find a reasonable compromise to extreme opening positions. So it is hardly surprising that the two states compromised along the line of providing qualified ROK nationals in Japan preferential treatment as permanent residents. The advantages of this status would not be realized until 1965. But the compromise had been worked out before the states broke off their first rounds of talks on the eve of the enforcement of the San Francisco Peace Treaty, when Koreans would lose their Japanese nationality and become nationals of "Korea" -- a country that as yet had no state in Japan's eyes, but actually had two states, which were then at war.

Morris-Suzuki does not cite specific sources for her statements regarding ROK-Japan negotiations or their background. Her notes for the chapter (pages 257-258), however, show that she has reviewed a lot of sources and commentary related to the idea of deporting at least undesirables from Occupied Japan that was tossed around in 1950 and 1951. She cites a lot of GHQ/SCAP documents, in addition to secondary sources like "Takemae Eiji, Inside GHQ; The Allied Occupation of Japan and Its Legacy (see Takemae 2002 above).

She begins her list of sources on "problems of the nationality of Koreans in Japan" with "Kim Tae-Gi, Sengo Nihon seiji to Zainichi CHōsenjin mondai: SCAP no tai-Zainichi Chōsenjin seisaku 1945-1952 (see Kim 1997 in "Postwar nationality" article). She then lists "memorandum for Chief, Diplomatic Section from Alva C. Carpenter, Chief, Legal Section, 'Japanese-Korean Nationality Conference,' 22 October 1951" and gives a National Diet Library microfiche number.

I would expect, then, that Morris-Suzuki has some understanding of the actual timeline of the ROK-Japan talks, which began on 20 October 1951, and of the issues that were on the table, which Carpenter's memorandum to William Sebald relates to, and which Kim Taegi's book describes is considerable detail. Why, then, was her summary of these events so poor?

Ministry of Foreign Affairs

Morris-Suzuki begins a new thought on the nationality issue like this (page 66, underscoring mine).

Morris-Suzuki's purpose here to bring Okazaki Katsuo back into her story about the program to repatriate some Koreans in Japan to the Democratic People's Republic of Korea, which began in 1959. But there are a number of problems in how she does this.

"policy on nationality in Japan"

The Minister of Justice -- actually the "Attorney General's Office" at the time -- has no authority in determining the nationality of aliens in Japan. Aliens are by definition individuals who do not have Japanese nationality, including stateless individuals. Whether an alien has the nationality of another state is based on determinations by the government of the state whose nationality is in question. But whether Japan recognizes the nationality is a matter of whether Japan recognizes the state. Though recognitions are ultimately determined by the National Diet when it ratifies an international treaty, diplomatic matters related to recognition are under the Ministry of Foreign Affairs.

In principle, treaties and other agreements with foreign entities, including supranational bodies such as the United Nationals, constitute foreign affairs, hence are the responsibility of the Ministry of Foreign Affairs. The Ministry of Foreign Affairs was the competent agency in the peace treaty talks between Japan and the Allied Powers, and of course also in the Japan-ROC and Japan-ROK talks that began after the signing of the Peace Treaty. Representatives of other ministries participated in the Japan-ROK talks depending on the substance of the talks. Hence Hiraga Kenta, an expert on nationality law at the Attorney General's Office, attended the earliest talks when nationality was being discussed. And of course such legalists and other bureaucrats and policy officials are always involved in the background of diplomatic negotiations.

Morris-Suzuki may also have overlooked the fact that, at the time the Peace Treaty came into effect, immigration and alien registration matters, including the supervision and enforcement of related laws, were the responsibility of the Ministry of Foreign Affairs, not the Attorney General's Office. A few months after the Occupation ended, the Ministry of Justice became the competent agency in border control matters and in matters concerning the status and treatment of aliens. But MOFA, not MOJ, continued to oversee treaties and matters related to state and nationality recognition.

"would have" . . . "left"

In her chapter notes, Morris-Suzuki speaks of "answers by Health and Welfare Minister Yoshibe to the Welfare Committee of the Lower House of the Diet, 2 April 1952" -- and observes that "Okazaki Katsuo's statement in the Diet on the nationality status of Koreans in Japan was given to the Foreign Affairs Committee of the Lower House on 14 May 1952" (page 258).

So (1) the two ministers made statements in ministerial Lower House committees, not from the Diet floor -- though committee minutes are reported in records of Diet proceedings, and (2) their remarks were not only in different venues but weeks apart.

Yoshibe's statement, on 2 April 1952, was before the Peace Treaty came into effect, but also before the "unilateral announcement" on 19 April 1952 by the Attorney General's Office -- hence apparently Morris-Suzuki's use of would have in reference to the effects of the loss of nationality that would take place in the near future.

And Okazaki's statement, on 14 May 1952, was after the Peace Treaty had come into effect, thus after loss of nationality -- hence apparently Morris-Suzuki's use of left in reference to effects which had already taken place.

"referred questions to Mr. Okazaki"

The Minister of Foreign Affairs at the time Yoshibe is said to have referred the matter to this minister was Yoshida Shigeru (吉田茂 1878-1967), who was also the Prime Minister. Okazaki Katsuo (岡崎勝男 1897-1965) succeeded Yoshida as Foreign Minister from 30 April 1952, two days after the San Francisco Peace Treaty came into effect. Okazaki was succeeded by Shigemitsu Mamoru (重光葵 1887-1957) from 10 December 1954.

"who failed to take up South Korean citizenship"

This of course would have presumed that Japan and ROK had concluded a normalization agreement, which would have allowed Japan to formally recognize ROK's nationality in the possession of Koreans who ROK was able to confirm had acquired its nationality. The talks between Japan and ROK had been suspended on 24 April 1952 and would not resume until October, and again they would falter, and continue to be resumed and falter, finally the two states signed a normalization treaty and status agreement on 22 June 1965.

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Chapman 2008

Forthcoming.

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Weiner & Chapman 2009

Forthcoming.

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Chung 2010

Erin Chung made the following statement in Immigration and Citizenship in Japan (New York: Cambridge University Press, 2010, page 175, underscoring mine)

Chung has the usual problems sorting out facts from fiction.

"option of choosing their nationalities"

Did "former colonial subjects" in other countries have "the option of choosing their nationalities at the time of liberation"? Usually options of choice were given to people who found themselves displaced by a territorial transfer that left them on the side of a redrawn border in a state they might not wish be affiliated with.

Rarely was it a matter "former colonial subjects" or "liberation". Mainly it was a matter of redrawing national borders, sometimes by nullifying or reversing past cession treaties, sometimes by agreeing to new cessions.

Moreover, there was often reciprocity in such options -- as, for example, in the peace treaty the Allied Powers signed with Italy in 1947.

"unilaterally stripped of their Japanese nationality"

What "postwar citizenship policies" is Chung taking about? Even if she had said "nationality" instead of "citizenship", there could be no "nationality polity" because nationality is governed by the Nationality Law. And the 1950 remake of the 1899 law did not alter the legal fact that Japanese nationality is based on membership in a household register affiliated with Japan's sovereign territory. No policy "stripped" anyone of Japanese nationality. The separation of Chōsen and Taiwan from Japan's sovereignty, conformed by effecutation of the San Francisco Peace Treaty in 1952, engendered the separation of Chōsen and Taiwan household registers from the reach of Japanese nationality. And all members of such registers lost Japanese nationality as an effect of this territorial separation.

To put it another way -- Japan could not have "stripped" nationality from anyone whose nationality it did not have the authority to define. When Japan formally lost Chōsen and Taiwan, it lost the right to attribute its nationality to people in Chōsen (Korea) and Taiwan (Formosa) registers.

There were no nationality provisions in the San Francisco treaty. And the bilateral peace treaty Japan and ROC signed on the same day the San Francisco treaty came into effect, concerning the status of Taiwanese and other matters, had no choice options. Nor were choice options on the table in talks between Japan and ROK, which began in 1951, faltered shortly before the San Francisco treaty came into effect in 1952, and did not bear fruit until 1965.

The Allied Powers had no authority over ROC or ROK. SCAP, representing the Allied Powers in Japan, could urge the inauguration of talks between Japan and ROC and ROK, and facilitate such talks, but it had no authority to impose conditions on talks. It had to leave such talks to the party states, and hope they would result in treaties and related agreements ready to sign on or by the day the San Francisco treaty came into effect and Japan regained its independence and sovereignty.

Japan's only choice was a moral choice, not a legal choice, as to whether to make provisions, under its domestic laws, to facilitate the establishment of family registers in Japan for domiciled Chosenese and Taiwanese who stood to lose (or had lost) Japanese nationality and wished to remain (or again be) Japanese. However, such a choice would have to have been unilateral. ROK's stance on its nationality precluded the possibility of choice, and Taiwanese Japanese-nationality losers had already been enrolled in ROC's nationality.

ROK itself insisted -- in the early rounds of its talks with Japan between October 1951 and April 1952 -- that what Japan did with its nationality was a purely domestic matter, hence nationality did not qualify as a topic on the agenda of their bilateral talks. But ROK would have strongly objected to any effort on Japan's part to enable Chosenese nationality-losers to choose Japanese nationality, for a choice of Japanese nationality would have required choosers to relinquish their household register status on the peninsula, which ROK would surely have taken as an affront to its sovereignty.

Moreover, Chosenese in Japan who opposed Japanese nationality would have seen an effort on Japan's part to entice "same wombers" (dōhō 同胞) to join the Japanese fold an effort on Japan's part to divide and decimate the "Zainichi Chōsenjin" population. Even today, hard-line anti-naturalizers raise their hackles whenever someone seriously suggests offering Special Permanent Residents an ultra simplified, virtually unconditional path to Japanese nationality -- whether acquired through naturalization or through special nationality acquisition measures.

Acquisition through naturalization would require filing an application for permission to naturalize, with supporting documents -- followed by, if permitted to naturalize, the filing of a notification of naturalization to enable the establishment of a family register.

Acquisition through a special measure would entail filing a notification of nationality acquisition, with supporting documents -- which, when vetted and accepted, would enable the establishment of a family register through automatic operation of the special measure -- i.e., without any need for permission.

I became Japanese through naturalization, hence my nationality was permitted. My children became Japanese through direct notification pursuant to a special measure in the 1984 revision of the Nationality Law, effective from 1985, so their nationality was acquired through the authority of the law itself, through a process that did not require permission but recognized their right to nationality if they met the conditions stipulated in the measure measure.

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Jones 2014

Colin P.A. Jones, a professor at Doshisha Law School in Kyoto, is the author of "Law of the Land", which was a regular column in The Japan Times. His 6 August 2014 column bore this long title.

Think you've got rights as a foreigner in Japan? Well, it's complicated
If you imagine paying taxes in Japan entitles you to welfare, you may want to take a seat

Early in this long article -- which attempts to show how poorly and arbitrarily Japan has treated "foreigners" in Japan -- oddly characterized "Chinese residents" in Japan during the Meiji era as "the largest non-Japanese population in the country until the annexation of Korea" -- thus himself depriving the "Korean population" in Japan of its Japanese nationality.

Thus, from its very inception, modern Japan has had laws that draw a very basic distinction between Japanese and non-Japanese [through family registers]. Even after opening up and becoming a colonial power these distinctions remained, with special rules limiting the freedom of Chinese residents (who were the largest non-Japanese population in the country until the annexation of Korea), and legal distinctions imposed upon Japan's colonial subjects from Korea and Taiwan, again through the family register system.

If "Chinese residents" means nationals of China, then yes, they were aliens. If he thinks the "colonial subjects from Korea (sic = Chosen) and Taiwan" were "non-Japanese" -- he's wrong. They were Japanese -- and, yes, there were legal distinctions between Japanese subjects (nationals) based on the territory of their family registers, not unlike distinctions made in other countries comprised of multiple legal territories.

Jones later made the following remark about the manner in which Chosenese (Koreans) and Taiwanese (Formosans) in Japan lost their Japanese nationality when the terms of the San Francisco Peace Treaty came into effect on 28 April 1952 (underscoring mine).

The Attorney General's Office -- not the Ministry of Justice -- neither "interpreted" the Peace Treaty nor "divested" anyone of Japan's nationality. Article 2 of the treaty clearly confirmed that Japan had renounced all claims to Korea (Chōsen) and Formosa (Taiwan). No interpretation was required. The language of the treaty left no room for interpretation. Japan lost it sovereignty, and any and all other rights, regarding these territories.

Nothing was said, and nothing needed to be said, about nationality. Nationality was essentially linked with the territory, and any nationality settlement would have to be made between Japan and representative Korean and Chinese states.

The Allied Powers left nationality entirely to Japan and "China" and "Korea" -- meaning, for Japan, the Republic of China (ROC) and the Republic of Korea (ROK). Japan was still under the authority of the Supreme Commander for the Allied Powers (SCAP), but SCAP had no authority over ROC or ROK, and its authority over Japan was limited. SCAP had had no standing in the peace treaty negotiations, and in any event, the treaty had already been signed with no provisions for nationality.

William Sebald, GHQ/SCAP's Diplomatic Section chief, understood that European solutions would not work -- simply because ROK itself had rejected them. Had ROK insisted on European-style nationality solutions, Japan have had little choice but to go along. There is no reason to think that Japan would have resisted, since in many ways it would have been to Japan's advantage. Japan, when surrendering, had even anticipated and made preparations for conventional territorial transfer and nationality choice treaty provisions.

Everyone in Japan -- from the Japanese government to the Korean Diplomatic Mission in Japan, and GHQ/SCAP officials familiar with the situation -- seems to have understood that the territorial separations of Korea and Formosa were tantamount to loss of nationality -- unless Japan and ROK, and Japan and ROC, made bilateral provisions for choice.

Japan and ROC had no reason to consider choice provisions, since SCAP had permitted ROC to enroll Taiwanese in Japan into its nationality. And so Taiwanese in Japan had already in effect become Chinese and lost Japan's nationality.

The situation between Japan and ROK was entirely different. SCAP did not allow ROK to enroll Koreans in Japan into its nationality because ROK had no legal standing with Japan or with SCAP. ROC was an Allied Power, and ROC -- as the designated successor state -- had accepted Japan's surrender of Taiwan. ROK had not existed until 1948, and had no standing with the Allied Powers or with Japan.

ROK, however, insisted that Koreans had lost Japan's nationality -- if they ever had it -- as early as 9 August or 15 August 1945, and no later than 15 August 1948 when it became state or 20 December 1948 when it enforced its Nationality Law. Period. ROK had ruled out the applicability of European-style nationality choice provisions.

ROK recognized Japan's right to define the parameters of its own nationality -- the right of all sovereign states -- ROK's right as well. Japan, when losing Korea, lost the authority to attribute its nationality to Koreans on the basis of their family registers, which were no longer part of Japan. All Japan could have done was make provisions for Koreans to create registers in Japan.

Whatever Japan did regarding Koreans who may have wished to keep their Japanese nationality would have to be unilateral. Japan could have made special provisions for acquisition of Japanese nationality by notification, for qualified Chosenese and Taiwanese, but didn't. Instead, it held that nationality losers who wished to be Japanese -- i.e., members of Japanese family registers -- could naturalize

Japan did, however, offer Chosenese and Taiwanese civil servants in Japan an opportunity apply for naturalization before they lost their Japanese nationality and hence their jobs. The Attorney General's Office, as requested by the Cabinet, expedited their applications so that on 28 April 1952 the moment they lost Japanese nationality based on their membership in a Chōsen register, they immediately gained Japanese nationality based on permission to naturalize, i.e., permission to be a member of a Japanese (prefectural) register.

Welfare rights

Jones's article was a rather cynically toned look at how rights of foreigners in Japan stand up in the eyes of Japanese law, especially the Constitution. It was pegged on the 18 July 2014 Supreme Court ruling against an 82-year-old Chinese woman who had been receiving livelihood protection from Ōita city in Ōita prefecture.

The city declared her ineligible to continue receiving this form of welfare, and she claimed that its action violated her constitutional rights. Ōita District Court had agreed with the city, and the High Court agreed with the woman. The Supreme Court, however, reversed the High Court's ruling, arguing that Articles 1 and 2 of the 1950 Livelihood Protection Law clearly stipulated that the law applied to nationals (国民 kokumin).

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Race and nationality

It long ago became conventional in popular and academic writing about Japan to racialize nationality. Recently, more journalists and scholars, especially those writing in English, have been also imputing "racist" motives to Japan's legal treatment of its nationality.

Here I examine a few such imputations, beginning from more recent works and working back a couple of decades.

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Chung 2010

The following statement, also by Erin Chung, is a case in point (Immigration and Citizenship in Japan, New York: Cambridge University Press, 2010, page 71, italics hers, underscoring mine).

Chung is not alone in her reliance on Dower's "compelling study" of postwar Japan. In fact, I am citing her here to illustrate how much Dower's version of Japan's postwar legal history has influenced other writers, especially in English.

Dower (1) characterizes the swap of "kokumin" for "jinmin" as a "linguistic subterfuge", and (2) claims that its "blatantly racist nature" led to other provisions that "provided the basis for discriminatory legislation governing nationality in 1950" (Dower 1999, page 394).

Two allegations

Chung makes two allegations, both essentially similar to, and inspired by, Dower. The first suggests a "racist" motivation behind the adoption of "kokumin" in the 1947 Constitution. The second concerns the "racist" implications of the constitutional adoption of "kokumin" for the 1950 Nationality Law. Both allegations are false because they ignore a number of facts which Dower -- and also many sources he himself relies on -- omit in their descriptions of how Taiwanese and Chosenese were treated before, during, and after the Occupation of Japan.

To be continued.

See Chung 2010 for more about what she says about nationality in Japan.

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Dower 1999

To be continued.

See Dower 1999 for fuller citations and more commentary, including examinations of how a few other writers have treated race and nationality in Japan.

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