Nationality after death

Honor, glory, country, and God in the next world

By William Wetherall

First posted 3 August 2009
Last updated 5 August 2009

Posthumous status change

Since 1985, Japan's Nationality Law, when applying jus sanguinis to a child's acquisition of Japanese nationality through birth, has required that either the father or mother be a Japanese national at the time of the child's birth, or that the father had been Japanese at the time of his death should he have died before the child's birth.

The death of a Japanese national results in striking the person from his or her family register, which is tantamount to termination of nationality. Information about the person will continue to be readable on the register. But the entry will be struck out, and the person's death will be cited as the reason for striking it out. Hence the person will cease to be a member of the register, and hence no longer be Japanese, effective from the date of death noted on the death certificate and in the register.

Of course, a child might also be born after it's mother's death. But presumably it would have to be delivered moments after her death. And the slight discrepancy between the time of her death and the time of the child's birth would not be cause not to register the child in her family register at the same time she is struck from the register.

Nationality laws do not, in principle, recognize the existence of nationality after death. However, some countries have made provisions for posthumous acquisition of their nationality for at least honorary purposes.

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Soga Hitomi

Japanese nationality, once lost on account of death, can be resurrected if it turns out that in fact a person presumed to be dead is still alive.

In the late 1970s and early 1980s, a number of Japanese were abducted to the Democratic People's Republic of Korea. Soga Hitomi, one of the five who returned to Japan in 2002, petitioned a Sado family court to order her name reinstated in her family register.

In 1986, the court had allowed her father to declare her missing and presumed dead, along with her mother, who had disappeared with her while they were shopping. Japanese laws allow a family court to declare a person legally dead if a certain time passes after the person is reported missing. This permits the person's property to be distributed in accordance with inheritance laws.

As the court ruled that both Soga and her mother were legally dead, the surviving family, relatives, and friends held a funeral. And over the years they conducted customary memorial services at the family grave.

The mother remains missing. I would assume that she also remains legally deceased.

Soga files notification to recover register status

According to the Niigata Nippō reports dated 6 and 7 November 2002, on the morning of the 7th, Soga filed a "Notification of nullification of pronouncement of disappearance" (失踪宣告取り消し届) with the "Resident section" (住民課) of town hall of the town of Manomachi in the county of Sado, an island in Niigata prefecture.

In September 1986, some eight years after she had gone missing, she had been struck from her family register on the authority of a "Pronouncement of confirmation of disappearance" (失踪確定宣告) from a family court. Her family had petitioned the court because she was missing and presumed dead.

On 21 October 2002, shortly after her return from DPRK, her family had petitioned the Sado branch of the Niigata family court to nullify the earlier pronouncement. The court handed down a ruling of nullification on the same day, and on 6 November it issued a "Certificate of confirmation" (確定証明書) of its ruling.

The following day, Soga submitted the certificate of confirmation as an attachment to the notification she filed at the town hall. On the same day, the town restored Soga's family register and thus she regained her legal status in Japan -- sixteen years after she had been disenrolled as deceased.

Retroactive measures

The national government, and concerned local governments, made a number of special provisions to retroactively treat Soga as though she had been in Japan, so she would not not lose any benefits because of her abduction. She would, for example, qualify for National Pension, as though she had been in Japan and paid the premiums as required by law.

Other returning abductees were similarly treated with respect to their marriages in DPRK and the birth and registration of their DPRK-born offspring. In other words, all of the children acquired Japanese nationality, effective from the day of their birth, as though their parents had been legally married under Japanese law, and as though the Nationality Law had applied to them at the time they were born.

In other words, Japanese laws have the capacity to be enforced with court or bureaucratic consideration for circumstances beyond a person's control -- in this case not as victims of a natural disaster, but as victims of crimes.

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9/11 patriotism

By 14 September 2001, there was a bill before the House of Representatives to permit the granting of posthumous citizenship to a victim of the events of 11 September 2001 who "(A) had pending an application for naturalization, or for a certificate of citizenship, filed with the Attorney General by the person; or (B) was the beneficiary of a pending application for naturalization filed with the Attorney General by a parent of the person."

Since 2002, the United States has had procedures for non-citizens (aliens and non-citizen nationals) to acquire posthumous citizenship "through death while on active-duty service in armed forces during World War I, World War II, the Korean hostilities, the Vietnam hostilities, or in other periods of military hostilities" that now include the Iraqi war.

The status is purely honorary. Relatives of the deceased person do not derive any benefits under the Immigration and Nationality Act -- although in some cases surviving spouses, children, and parents may qualify for easement of immigration or naturalization.

Mostly survivors stand to gain the reflected glory that supposedly comes with the ascription of citizenship as a commemoration of bravery and sacrifice. This presupposes that the survivors feel this way about "US citizenship".

The granting of posthumous citizenship by the US government is controversial because government agencies and officials can also initiate applications. Citizenship grants can therefore be made for purely political reasons by third parties -- without the consent of the deceased's hero's survivors, who may not share the same feelings, or be divided in their sentiments, about the "honor" that American flag wavers associate with US citizenship.

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Sergeant Strank

In 2008, Marine Sgt. Michael Strank (1919-1945), one of the six men who raised the flag on Iwo Jima in the famous photograph, became a US citizen posthumously. He had already become a citizen, but the paperwork had hit a snag somewhere in the bureaucracy.

Born in Czechoslovakia, Strank technically because a US citizen when his father was naturalized in 1935. But Strank was then a minor. And he had not yet formally received his citizenship papers when he was killed on Iwo Jima a week or so after helping to raise the flag on Mt. Suribachi.

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Anne Frank

The story of Anne Frank (1929-1945) and her diary are known around the world. Less widely recognized is the fact that she was stateless. Germany had revoked her German nationality and she did not become Dutch. Many refugees in German-occupied Holland were in the same situation.

In 2004, a Dutch TV network started a campaign to grant Frank Dutch nationality so she could be voted into a gallery of "Greatest Dutch Ever" on one of its programs. The idea gained some support because Frank had, in her diary, expressed a desire, in view of her predicament, to become a Dutch national.

The idea also stirred all manner of controversy because of the less-than-charitable manner in which many Jews came to be treated during the German occupation of The Netherlands. So the Dutch parliament had both legal and political grounds for determining that retroactive naturalization was not possible.

Anne Frank as a "US citizen"

Some people in the United States have also wanted to give Anne Frank a national home, so to speak. In 2007, a US congressman submitted a bill to the House of Representatives which called for her to be given honorary US citizenship.

Such a gesture, it was argued, would partly atone for the fact that the United States had denied visas to her family -- something which had recently been illuminated by the rediscovery of her father's papers. Supposedly had her family been allowed to come to the United States, at some point they would have naturalized and become US citizens.

The bill's sponsor was obviously attempting to build on the foundations of the "posthumous citizenship" measures that had recently been made for aliens and non-citizen nationals who had died from "injury or disease incurred on active duty with the U.S. armed services during specified periods of military hostilities". However, most US congressmen weren't buying.

It was one thing to reward alien and non-citizen "heroes" with citizenship -- but quite another to open the flood gate of "citizenship" that might have been acquired by aliens who for many reasons never made it to America's shores.

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LDS vs Jews and Obamas

Living Mormons can apply for posthumous baptism for deceased relatives. Someone not related to the family of Barack Obama, however, appears to have obtained posthumous baptism into The Church of Jesus Christ of Latter-day Saints (LDS), better known as the Mormon Church, for his mother, and possibly his African father and his ancestors.

Some Jewish organizations objected to the posthumous baptism into Mormonism of thousands of Holocaust victims and requested their removal from LDS genealogies. LDS views proxy posthumous baptisms as a way to give the dead a chance to accept its gospel.

Disagreeable agreements

In 1995 LDS agreed to stop the practice of what some critics have called "hijacking Jewish souls". However, LDS appears to have made little or no effort to live up the agreement.

In 2006, the Simon Wiesenthal Center demanded that the Mormon Church remove Simon Wiesenthal from its database of posthumous ordinances, which can be accessed on the Internet as the International Genealogical Index (IGI).

In 2008, Jewish organizations, who had been pressing LDS to remove some 380,000 Holocaust victims from its rolls, broke off talks with LDS. Defenders of the Mormon practice of posthumous baptism objected that a wholesale annulment of such baptisms would be unfair to the Jews who had embraced the Mormon faith in the next world.

The Vatican

In the meantime, the Catholic Church entered the arena. In 2008, the Vatican ordered its dioceses around the world to keep parish records out of the hands of Mormon genealogists, in order to prevent posthumous LDS rebaptisms.

Jewish and Catholic organizations may view the posthumous conversion of their souls by the Mormon Church as predatory. Yet the conferring of posthumous religious honors is common in Buddhism and Catholicism, among other religions.

The Catholic Church has been beautifying and canonizing people posthumously for many centuries. Edith Stein (1891-1942) was one of many German refugees in Holland who were rounded up during the Nazi occupation and ended up in camps.

Stein had converted to Catholicism in 1922 but was sent to Auschwitz. She was beatified in 1987 and canonized in 1998 by Pope John Paul II, who had lived through the German occupation of Poland, which had been his country of birth and original nationality.

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Posthumous effects of nationality

Nationality laws with jus sanguinis provisions usually condition a child's acquisition of nationality through birth on whether at least one parent was a national at the time of the child's birth -- or, if the national parent died before the child's birth, was a national at the time of death.

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Japan

Article 1 of Japan's first Nationality Law made the following provision for a Japanese father's nationality at time of death (my translation).

1899 Nationality Law

Article 1

A child will be a Japanese [Nihonjin] when at the time of birth its father is Japanese. The same will [apply] when the father who has died before its birth was a Japanese at the time of death.

A similar provision was made in Japan's 1950 Nationality law. From 1985, the 1950 law has read as follows (my translation).

1985 revision of 1950 Nationality Law

Article 2

A child will become a Japan national in the following cases.

1. When at the time of its birth its father or mother is a Japan national.

2. When its father, who died before its birth, was a Japan national at the time [he] died.

3. In the case [when] [a child] is born in Japan, when neither [its] father or mother are known, or when [neither] possesses a nationality.

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United States

US nationality laws becomes jus sanguinis for children born outside a US territory to US nationals (citizens/nationals). However, the jus sanguinis principle is diluted by jus soli elements in the form of conditions for past residency in a US territory.

Residency conditions have considerably changed over the decades. Today they are considerably more relaxed than in the past. This relaxation represents a gradual weakening of jus soli wrinkles in the jus sanguinis provisions.

The U.S. Department of State posts the following advisory on acquisition of US nationality by child born abroad to a US national parent. The advisory, dated 1997, appears on the "travel.state.gov" site managed by the department's Bureau of Consular Affairs (retrieved 23 August 2009, underscoring mine).

Acquisition of U.S. Citizenship By a Child Born Abroad

Birth Abroad to Two U.S. Citizen Parents in Wedlock: A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA). One of the parents MUST have resided in the U.S. prior to the child's birth. No specific period of time for such prior residence is required.

Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father: A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(a) INA provided:

1) a blood relationship between the applicant and the father is established by clear and convincing evidence;

2) the father had the nationality of the United States at the time of the applicant's birth;

3) the father (unless deceased) has agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and

4) while the person is under the age of 18 years --

A) applicant is legitimated under the law of their residence or domicile,

B) father acknowledges paternity of the person in writing under oath, or

C) the paternity of the applicant is established by adjudication court.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

1997

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