Japan's Nationality Law
A primer and guide to other articles
By William Wetherall
First posted 1 January 2007
Last updated 1 January 2024
This is a gateway to other articles related to nationality and related issues in Japan. Brief statements about the most important nationality topics, past and present, are followed by annotated links to more detailed articles.
Legal Advice
I am not able to respond to personal requests for legal advice. I strongly recommend that anyone who has a legal problem related to Japanese nationality, who is in Japan, consult with an official at a municipal hall or at a local Legal Affairs Bureau. If outside Japan, contact a Japanese consulate. While most officials will not be experts in nationality law, they should be able to answer general questions and refer questions involving unusual circumstances to competent bureaus.
I will, however, offer the following advice regarding the quality of opinions you may hear about nationality in Japan.
- Don't believe any claim that Japan's nationality laws are "racist". They aren't. Qualifications for Japanese nationality at time of birth are based mainly on family law, which stresses lineage -- but the lineage is familial, not "racial" in any sense of the word. The effect of preferential jus sanguinis (right-of-blood) on the genetic composition of Japan's demographic nation is obviously to give priority to the children of people who are already nationals. But Japanese nationals -- people who possess Japanese nationality -- represent practically all varieties of the putative anthropological races of humankind, who have become Japanese, whether through jus sanguinis or jus soli at time of birth or naturalization later in life, or (in the past) through marriage or adoption. Japan's Nationality Law -- in fact all of its laws -- have been blind to race and ethnicity.
- Also disregard most of what you are likely to read about the "difficulty" of naturalizing in Japan. Naturalization is not as easy as getting a driver's license, but then it shouldn't be. No state offers its nationality to aliens unconditionally, and few states offer their nationality on a silver platter. Naturalization in the United States is not, on the whole, easier than in Japan. The hurdles are merely different. Japan's legal bureaucrats have not always been as liberal concerning permissible forms of post-naturalization family and given names as the laws they oversee -- which place no ethnic constraints on names. But even when extralegal pressure urging the adoption of "Japanesque" names was common, naturalization rates among aliens in Japan, including Koreans and Chinese, continually increased.
- When speaking with officials, keep in mind that an individual official's understanding of Japan's laws and policies may not be correct, especially if the official lacks experience in nationality matters, or leans toward the conservative side of legal interpretation. Most officials, though, are there to help you understand what is legally possible in your case, and will do their best to help you. If unsatisfied with an official's opinion, however, seek a second or third opinion from another official in the same or another office or agency.
- Consult an attorney only as a last resort. And be cautious, for most attorneys will not understand nationality law. When consulting an attorney, whether inside or outside Japan, be sure the attorney has experience in nationality matters and is familiar with the operation and administration of Japan's Nationality Law. If outside Japan, consult only an attorney who is able to read and understand Japanese laws in Japanese, is familiar with the history of nationality law in Japan, and understands bureaucratic and legal procedures in Japan.
- When dealing with nationality issues in Japan, do not confuse the workings of nationality laws in Japan with the workings of laws in other countries. Every country has the right to determine the parameters of its own nationality, and while all nationality laws share some common elements, all are different and self-contained -- answerable only to themsselves. The nationality laws of some countries speak of "citizenship". Japan's Nationality Law is about "nationality". Don't confuse the two.
Terminology
Unless otherwise indicated, "nationality" always reflects "kokuseki" in Japanese. As it turns out, "kokuseki" also reflects usage in international law where, for good reason, affiliation with a state is denoted by "nationality" and not "citizenship".
Legal terminology:
Status, affiliation, courts, and agencies
This is a guide to a number of words and expressions essential to understanding nationality and other forms of legal status in Japan since the Meiji period. The terms are shown in kanji, romaji, and English, and are introduced in order of their appearance in laws related to nationality since 1873.
Metaphors of Japanese law
Nationality in Japan cannot be understood in English by "naturalizing" Japanese legal terms into Americanese or any other idiomatic variety of "native" English. Americans like to talk about being "citizens" and having "citizenship" and are apt to reserve "nationality" for questions about someone's "national origins" with nuances of "race" or racialized terms like ethnicity, ancestry, descent, heritage, and even culture.
English translations of Japanese legal terms should reflect the meanings intended by Japanese domestic law in the context of international law, unencumbered by the idiosyncrasies of how Americans, say, talk about "citizens" and "citizenship" -- often innocent of knowledge about the history and workings of American domestic law, including nationality law, much less of comparative international law. For this reason, I have endeavored to translate all key Japanese terms in a manner that is structurally consistent with the metaphors of Japanese usage.
Nationality is merely one element of status
In all my writing, except where citing usage by others, "nationality" (kokuseki) is a strictly civil status denoting legal affiliation with a state (kokka). People who possess Japanese nationality are individual "nationals" (kokumin) of Japan. Collectively, Japanese nationals constitute Japan's "nation" (kokumin) or "people". In Japan, possession of "nationality" and being a "national" are legally equated through membership in Japan's territorial "national register" or "nationality" (kokuseki).
Nationality is not race or ethnicity
As such, "nationality" does not embrace "race" in the sense of biological traits (jinshu), or ethnic qualities such as language, customs, beliefs, and other likely effects of ancestral membership in a "racioethnic nation" (minzoku). "Nationality" and "national origin" are commonly associated with "nation" or "people" in their "ethnic" or "racioethnic" rather than "civic" sense. "Nationhood" and "peoplehood" are commonly associated with "ethnic consciousness" (minzoku ishiki) -- or "nationalism" in the sense of "ethnonationalism" (minzoku shugi).
Because people commonly "racialize" others in either the biological or ethnic senses of the word, terms like "nationality" and "national" and "Japanese" are likely to be racialized in popular usage. But "race" by either definition has never been coded in Japanese law. Hence "race" has never been a qualification for acquiring or losing the "nationality" of Japan, the single legal requisite for being a "national" (kokumin) -- or, in the past, also a "subject" (shinmin) -- of Japan. Nor does "race" in either its narrow or broader sense figure in the definition of "nationality" in international private law.
Nationality is not citizenship
"Nationality" the not same as "citizenship" either -- even in countries like the United States, where people commonly speak of being American "citizens" because they have American "citizenship" -- in the same sense, it would seem, that people in Japan speak of being a "kokumin" (national) of Japan because they possess Japanese "kokuseki" (nationality). The metaphors, though, are not the same. And a lot -- too much -- is lost when people writing in English about Japan equate "kokumin" and "kokuseki" with "citizen" and "citizenship".
Nationality and passports
The distinction in usage clear on U.S. and Japanese passports, which are issued in accordance with domestic state laws but in compliance with international agreements. I happen to be both a "national" of Japan and a "citizen" of the United States. But under the domestic laws of both states, and under international law, I possess the "nationality" of only one of these two countries. And as I write this, I am Japanese.
My passports show the following information on their official "request" pages, on which the issuing state requests that other states accommodate the bearer, and on the bearer "ID" or nation status pages, which identify the bearer by name, nationality, date of birth, sex, and place of registration or birth.
| Japan | United States of America |
|---|---|
Official request page |
|
|
日本国民である本旅券の所持人を通路故障なく旅行させ、かつ、同人に必要な保護扶助を与えられるよう、関係の諸官に要請する。日本国外務大臣 [seal] The Minister for Foreign Affairs of Japan requests all those whom it may concern to allow the bearer, a Japanese national, to pass freely and without hindrance and, in case of need, to afford him or her every possible aid and protection. |
The secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection. . . . le citoyen ou ressortissant des Etas Unis . . . . . . del ciudadano o nacional de los Estados Unidos . . . |
Bearer ID page |
|
|
姓 / Surname |
Surname / Nom / Apellidos |
Registered domicile
Where my U.S. passport shows my "Place of Birth" as the locality (state) and country (U.S.A.) in which I was born, my Japanese passport shows the prefecture of my "Registered domicile" (本籍 honseki), which indicates the territorial basis of my Japanese nationality.
Japanese nationality is territorial
A Japanese "honseki" (本籍) is an "original" or "principle" or "primary" domicile of territorial affiliation. It refers more fully to the address of the locality of the affiliation (本籍地 honsekichi) within the municipality which has jurisdiction over the locality and is responsible for maintaining the family register records of all people with local honseki -- regardless of where the person in the honseki is registered as a resident, whether in Japan or overseas.
Japan defines its nation, its demographic territory, as the collectivity of everyone with a honseki in a municipal polity within its sovereign territory. Hence Japanese "nationality" amounts to a territorial affiliation with a local polity, which in turn is part of a prefecture, which in turn is part of Japan's sovereign dominion.
The state nationalities of all states are comparable with "honseki" in Japan in that they represent civil affiliation with the state's geographic and demographic territory. Hence, when completing Japanese forms with a "honseki" box, aliens write the name of their country of nationality. The name of the country represents its overarching state nationality.
Subnational statuses
Just as Japanese nationality includes municipal and in turn prefectural affiliations, the nationalities of other states are likely to include subnational statuses affiliated with states, provinces, prefectures, and other legal territories within the larger sovereign state. Most states consist of multiple legal jurisdictions, which -- like the states, territories, and the District of Columbia of the United States -- are subject to different laws.
However, Japanese domestic laws concerning aliens in Japan generally take into consideration only an alien's state nationality, and not domestic statuses -- such as residency or former residency in "California" or "Quebec". Nor are the racioethnic "nationality" subdivisions of state nationality defined by some states, such as China, relevant in Japanese domestic laws concerning aliens. Sub-state (subnational, territorial) statuses matters only in cases involving international private law, in which it is necessary to determine applicable law -- i.e., which state's laws, and/or which laws of which legal jurisdiction within a state, apply (see below)
Municipal affiliation in Japan is also where all elements of local, prefectural, and national citizenship originate for Japanese and foreign registrants alike. But that is another story (see below).
Bibliography
With only a few exceptions, I will not cite sources in this general guide to nationality-related articles on this website. All sources cited in articles will be fully described. The particulars of all Japanese sources will be shown first in Japanese, followed by romanized and translated particulars, after which a source will be parenthetically referred to in-line by its author, year, and pages, and other qualifications as required.
Many of the academic sources I have cited are reviewed in the "Bibliographies" section of this website. Most sources related to nationality are found in the "Nationality" subsection, but a few are in the "Minorities" or "Race" subjections.
Some of the reviews run barely a paragraph that merely advertises the existence of the source and rates its overall quality. Other reviews are chapter-length micro-examinations of problematic minutiae of interest to me.
I have rated most reviewed sources according to a fairly liberal grading scale of my own devising, which nonetheless results in relatively few A or B class sources, and quite a few D and even a few F class publications. A few books have been introduced without rating.
General bibliography:
Views and reviews of selected books and articles
This is a guide to a few of the more reliable and less reliable sources on nationality and related topics -- the sources you want most to consult as examples of the rights and wrongs of writing about nationality issues in Japan and other countries. The sources are reviewed and graded.
Nationality, citizenship, and race
Nationality is what affiliates a person with a state's demographic territory or nation. It is not citizenship but merely a mark of membership in the state's sovereign society. States issue passports to certify that a bearer is an affiliate, or national, of the state's demographic territory, or nation. Most people have only one nationality. Dual or multiple nationals have two or more. Stateless people have none.
Some states divide their national population into ethnic or regional subnationalities. China defines many racioethnic "minority nationalities" within its state nationality. Japan has never defined its nationality except as a civil status meaning an affiliate of Japan as a sovereign state. Japanese nationality has always been based on membership in a household register affiliated with Japan's sovereign territory, not on race or ethnicity.
Japan's sovereign dominion has changed many times over the centuries. The Empire of Japan that was established during the Meiji period expanded from the prefectural jurisdiction called the Interior, itself the product of territorial expansion, to embrace also Taiwan (1895), Karafuto (1905), and Korea as Chōsen (1910). All people in household registers affiliated with these four subnational territories of the sovereign empire possessed Japanese nationality as an artifact of territorial incorporation. Karafuto joined the Interior jurisdiction in 1943.
Japan lost control and jurisdiction of Taiwan and Chōsen, and of several parts of the Interior, along with its own sovereignty, under the terms of surrender signed on 2 September 1945. Thus reduced to the Interior minus a couple of prefectures and several islands that were parts of other prefectures, "Japan" was occupied under the authority of the Supreme Commander for the Allied Powers. Under the terms of the San Francisco Peace Treaty, effective from 28 April 1952, Japan regained its sovereignty and formally lost its already abandoned claims over Taiwan and Chōsen. Effective from the same date, as an artifact of the separation of Taiwan and Chōsen from Japan's sovereign territory, Taiwanese and Chosenese were separated from Japanese nationality.
Since 1952, Japanese nationality has been based entirely on affiliation with household registers in Japan's prefectural municipalities. As a civil status today, the quality of Japanese nationality remains essentially the same as when formally conceived during the Meiji period -- based only on affiliation with territorial family registers within Japan's sovereign dominion.
Nationality in Japan:
The legal foundations of a raceless nation
This is a quick (10,000 word) chronological introduction to nationality and related topics with hyperlinks to more detailed articles. It is the most comprehensive article I have written on nationality, and though published in 2006, I am constantly correcting and updating it.
Citizenship is a set of rights and duties one has as a member of a community, such as a neighborhood, town, province, country, bloc of countries, or even the earth. Citizenship, which may or may not include the right to vote or hold office, varies with nationality and other affiliation statuses, including legal residence, as well as with gender, age, and other personal attributes.
"Citizenship" and "citizen" in the narrow American senses of these words are not proper synonyms for "nationality" and "national" in international law. A passport identifies the bearer's nationality, not citizenship. In compliance with international standards, the ID page of a US passport certifies that the "nationality" of the bearer is "United States of America". The page facing the ID page refers to "the citizen/national of the United States named herein" because the United States divides its nation into "citizens" and "nationals". However, this distinction has no significance in international law.
Elements of citizenship:
Social and political belonging in Japan
This feature has two parts.
Status and citizenship examines the relationship between state and local affiliation and the rights and duties that come with such legal statuses for nationals and aliens in both Japan and the United States.
Aliens and the Constitution looks at how the 1947 constitution came to differentiate between "kokumin" (nationals, "the people") and "nanbito mo" (anyone, "every person"), and at how some court cases have tested the letter and intent of this distinction with regard to the rights and duties of aliens affiliated with Japan.
Race is mostly a pigment of the imagination. Some countries, such as the United States, have long traditions of racializing their nationals with race boxes and racially discriminatory laws and quotas. In contrast, race was not a building block in Japan's legal foundation, hence Japanese laws have not been concerned with race.
There have been no race boxes in Japan, and neither race nor ethnicity has been a condition for being Japanese. Consequently, Japanese nationality is raceless and has no ethnic implications. In other words, it is legally impossible to be "pure" or "full" or "part" or "half" or "quarter" or even "ethnic" Japanese -- at least not in the eyes of the law.
This does not mean that racialism (viewing people racially) -- and racism (treating people differently according to their putative race) -- are not problems in Japan, as they are in all human societies. It simply means that Japan is a relatively raceless country, in the sense that people in Japan are free of racial labeling on birth and death certificates, census forms and other documents, and otherwise enjoy a high level of racial privacy. Socially, people are free to racialize themselves and others in any manner they wish -- and, for better or worse, many people -- including journalists and scholars -- habitually do so.
The racialization of Japan:
How global racialism is threatening Japan's raceless nationality
This article examines the definition of "race" in the International Convention on the Elimination of All Forms of Racial Discrimination. It also reviews some of the formal exchanges between the Ministry of Foreign Affairs (MOFA), which mediates treaty matters for Japan, and the Committee on the Elimination of Racial Discrimination (CERD), which monitors compliance with ICERD for the United Nations.
UNCHR's misguided "Mission to Japan":
The global politics of "racialization"
This is my counter report to "Mission to Japan", a report submitted to the United Nations Commission on Human Rights by Special Rapporteur Doudou Diene on 24 January 2006 as an addendum to "Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination".
Racialism across the Pacific
This essay dramatizes how race boxes in the United States effect people like my children, who were born and raised in Japan, where there are no race boxes and race and ethnicity are private matters.
Nationality laws from 1873
The term "nationality" (kokuseki) was formally introduced into Japanese law with the enforcement of the 1899 Nationality Law. Gaining or losing the nationality of Japan essentially meant the gaining or losing had been referred to as the "standing of being Japanese" in the 1873 proclamation concerning alliances of marriage and adoption between Japanese and aliens.
The 1899 Nationality Law came to be called the "old" law when replaced by 1950 Nationality Law. Though the 1950 law remains the law in effect, in comparison with its substantially revised 1985 version, it is called the "old" law, in which case the 1899 law is called the "old old" law.
Here is a tabular overview of the 1873, 1899, and 1950 laws, including major revisions to the 1899 and 1950 laws.
| 1873 proclamation on marriage and adoption alliances | |||
| Year | Proclamation | Promulgated | Enforced |
| 1873 | No. 103 | 14 March 1873 | |
|
Permits alliances of marriage and adoption between Japanese and aliens. Provides that alien wives and adopted children or husbands of Japanese will gain the status of Japanese, and that some Japanese wives of aliens will lose (but be able to recover) the standing of Japanese. |
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| 1890 Civil Code articles on national status | |||
| Year | Proclamation | Promulgated | Enforced |
| 1890 | Law No. 98 | 7 October 1890 | Never enforced |
|
Included general provisions for gaining, losing, choosing, and recovering "national standing [status]" defined as "standing [status] of being Japanese" -- a status based on family register membership and essentially governed by family law. These provisions were revised and expanded into the standalone 1899 Nationality Law. |
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| 1899 Nationality Law and major revisions | |||
| Year | Law | Promulgated | Enforced |
| 1899 | Law No. 66 | 19 May 1899 | 1 April 1899 |
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Adopts a mix of right-of-blood, place-of-birth, and naturalization standards common to the nationality laws of most countries. Incorporates the 1873 standards for derivative nationality -- becoming Japanese through marriage with or adoption by a national. Makes provisions for loss and recovery of nationality but not for renunciation. Restricts rights to hold designated higher offices of persons who acquired nationality through naturalization, or through marriage or adoption. Initial determination assumed, on basis of customary law, to be members of household registers affiliated with Japan's national territory. |
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| 1916 | Law No. 27 | 16 March 1916 | 1 August 1916 |
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Introduces provisions for renunciation, in response to pressure from the United States and other American states concerned about dual nationality. Japanese with an alien nationality, who are domiciled in the country of their alien nationality, permitted to renounce their Japanese status. Parents or guardians allowed to renounce on behalf of dual-national minors. |
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| 1924 | Law No. 19 | 22 July 1924 | 1 December 1924 |
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Introduces nationality retention system in designated right-of-soil states, again in response to pressure from these states to minimize dual nationality. A 1924 imperial ordinance designates United States, Argentina, Brazil, Canada, Chile, and Peru, and a 1926 imperial ordinance adds Mexico. Provisions for renunciations by parents or guardians on behalf of minors dropped with introduction of this system. |
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| 1950 Nationality Law and major revisions | |||
| Year | Law | Promulgated | Enforced |
| 1950 | Law No. 147 | 4 May 1950 | 1 July 1950 |
|
Replaces 1899 Nationality Law. Nationality derived through marriage, adoption, or acknowledgement after birth ends. Nationality restrictions on office-holding rights of Japanese who obtained their nationality through naturalization or derivation end. Nationality retention system continues for qualified children born to Japanese in right-of-soil states. |
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| 1985 | Law No. 45 | 25 May 1984 | 1 January 1985 |
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Provisions for ambilineality begin, with three-year window for nationality acquisition by minors born within past two decades. Provisions for nationality through legitimation restored. Provisions for declaration of choice introduced as measure to minimize dual nationality. However, multiple nationality remains possible under Japanese law. |
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| 2009 | Law No. 88 | 12 December 2008 | 1 January 2009 |
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Acknowledgement after birth no longer contingent on legitimation. Transitional measures provide a three-year window for filing notifications of maternal or paternal recognition of those born as early as 1983. The provision complies with a 2008 Supreme Court ruling related to several cases filed between 2003 and 2008, that the legitimation condition was discriminatory and unconstitutional. |
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Becoming Japanese at time of birth
Japan first defined its nationality in 1899. The present law, in effect since 1950, and significant amendments have in effect since 1985 and 2009.
Japan's nationality laws have always been on a par with the nationality laws of most other countries. Though written to comply with articles in the 1889 and 1947 constitutions, they are grounded in family law and population registration practices that go back many centuries.
Most Japanese acquire their nationality at time of birth through right-of-blood (jus sanguinis) rules. The "blood" means parental lineage, not race. Race or ethnicity have never been provisions in the acquisition or loss of Japanese nationality.
Once patrilineal for children of married parents (child is Japanese if the father is Japanese), and matrilineal for children of unmarried Japanese mothers, Japan's Nationality Law has been ambilineal since 1985. Now a child can acquire Japanese nationality at birth if either parent is Japanese. However, a Japanese father of a child born to a non-Japanese mother to whom he is not married must recognize the child in a timely manner, before or at the time of its birth.
A few children also become Japanese at time of birth because they are born in Japan to stateless or unknown parents. Such right-of-soil or place-of-birth rules are intended to make sure all children have a nationality, though a few children become stateless for other reasons.
However, no child eligible for Japanese nationality at time of birth automatically becomes Japanese. Its birth must be recorded, in a timely manner, in a family register affiliated with a city, town, or village in Japan. Failure to register within the brief periods of time stipulated in the Family Register Law can result in failure to acquire nationality. In Japan, notifications of birth must be filed within 14 days of birth. Eligible children born overseas acquire or reserve Japanese nationality only if proper notifications are filed at a Japanese embassy or consulate within three months of birth.
1890 Civil Code:
The "status of Japanese" as "national status"
Promulgated but never enforced, Japan's first Civil Code included provisions which satisfied the requirement of the 1890 Constitution that the conditions necessary for being a Japanese subject be determined by law. This article includes a translation of the national status provisions, which facilitated the gain, loss, choice, and recover of Japanese status.
1899 Nationality Law:
"The conditions necessary for being a Japanese subject"
This article examines how Japan's first law of nationality defined natural (at time of birth) and other means of becoming Japanese. It also looks at amendments made to address complaints from the United States about dual nationality. The article includes the Japanese texts and English translations of the Nationality Law and selected ordinances and amendments.
1950 Nationality Law:
One step forward, two steps backward
This article introduces the legal foundations for the resolution of nationality issues that arose after World War II, when Japan lost most of the territories it had acquired after 1868. The 1950 law and some amendments are presented in Japanese and English.
1985 Nationality Law revisions:
Ambilineality, acknowledgement, and choice
This article looks at amendments, effective from 1985, which replaced former patrilineal/matrilineal principles with a ambilineal principle, and required dual nationals to "choose" a nationality. The amendments included transitional measures that gave qualified alien children, born within two decades of the enforcement of the new ambilineal standard, three years to file a notification for acquisition of nationality based on their mother's Japanese nationality. This article also covers minor changes effective from 1994 and 2005.
Sugiyama v. Japan:
Nationality court cases, 1978-1988
This article discloses for the first time the particulars of the court cases in which I and my ex-wife attempted to confirm the Japanese nationality of our children, arguing that the principle of patrilineality in the 1950 law was unconstitutional. Because I had refused to register my children as aliens, in 1983 I was prosecuted and fined for violating the Alien Registration Law, which delayed my acquisition of permanent residence a couple of months. Our children became Japanese in 1987 through the transitional measures in the 1985 revsions.
2009 Nationality Law revisions:
Acknowledgement no longer conditioned by legitimacy
This article looks at the amendment to Article 3, which now allows a minor child born out of wedlock to a recognizing Japanese parent to acquire Japanese nationality whether or not the parents marry. The amendment reflected a 2008 Supreme Court decision which ruled that requiring a child's parents to be married irrationally discriminated between children of married and unmarried parents, and was therefore unconstitutional.
Unidentifiable man gets family register
Family court invokes jus soli principle as grounds
This article examines the 1984-1988 case of a man who was found on the coast of Ibaraki prefecture, who had no identity papers and could not recall anything about himself. But he was very familiar with current events over the decades, knew a lot about Japan's geography and roads, spoke native Japanese and was totally at home in Japanese society. Nothing in his speech or behavior, or in anything he was able to recall, suggested that he had come to Japan from elsewhere. A family court, estimating that he was born around 1941, and gave him a name and "honseki" address, and authorized the establishment of a family register, which showed that his parents were unknown. This was the judge's pretext for invoking the jus soli provision in Japan's Nationality Law, which recognizes that a child born in Japan to unknown parents has birthright Japanese nationality.
Rees v. State, 1992-1995
Supreme Court confirms child's jus soli nationality
This article examines a landmark Supreme Court decision that recognized that the plaintiff, a boy born in Japan to a mother who was not entirely unknown, qualified for birthright Japanese nationality under the jus soli provisions of Japan's nationality law. All evidence supported the government's contention that the woman appeared to be a Filipino. The name she had given then hospital where she gave birth appeared to be the same as that of a Filipino woman who had entered Japan but left no record of leaving. The Supreme Court, though, ruled that, because the woman had disappeared immediately after the child's birth, and her whereabouts were unknown, her identity could not be confirmed. Apparently she was unmarried, and the father remained entirely unknown. For practical purposes, then, the child's parents both unknown -- which satisfied the jus soli provision of the Nationality Law.
Filipinos v. State, 2003-2008:
Legitimacy distinction is unconstitutional
This article examines the decision in the most important of several court cases involving mostly Filipino children who sought to confirm that they should be Japanese through acknowledgement of their Japanese father. Such children had failed to become Japanese because the Nationality Law had required paternal recognition before or at time of birth, or marriage of the parents if acknowledgement was made after birth. The decision prompted a simple revision in Article 3 to remove the condition of marriage (legitimation).
The "at time of birth" constraint in Article 2 -- which provides for Japanese nationality through birth, because of conditions met at time of birth -- generally means before or no latter than the period that a notification of birth is supposed to be filed. But extenuating circumstances have been recognized.
Ko v. State, 1993-1997:
Child acknowledged after birth acquires nationality through birth
In 1997, the Supreme Court ruled that a child, born to an alien woman, was able to acquire Japanese nationality through birth, though it was not acknowledged by its Japanese father until after its birth. The court recognized that the father, legally unable to acknowledge the child before its birth, had done so as soon as it became possible.
The court considered "intent" to comply with the "at time of birth" constraint in Article 2 as essentially defining the expression. Fetal acknowledgment of an out-of-wedlock child is supposed to be notified before or at the time of the child's birth, and birth notifications are supposed to be submitted to registrars within 14 days of a child's birth. The court ruled that registrars need to recognize special circumstances that prevent compliance with the law -- including, in this case, the Civil Code and Family Register Law themselves. In principle, though, registrars expect timely compliance with the letter of the law, and an untimely filing of a notification of acknowledgement is likely to be rejected or encounter more than the usual bureaucratic barriers.
Becoming Japanese later in life
There have been a number of ways in which a person could become Japanese later in life, meaning not as an effect of birth but through the operation of the law or by permission in consideration of other criteria.
Derivative nationality
Nationality derived through marriage or heir adoption became possible from 1873 and continued to be possible under the 1899 Nationality Law. Nationality through adoption generally became possible under the 1899 law. All forms of such derivative nationality, however, ended with the 1950 law.
Earlier provisions for nationality through marriage or adoption conformed not only with family law in Japan, but with the nationality standards shared by most countries in the world. However, whereas most countries regarded nationality as a male preserve, hence gained by an alien woman who married a male national, Japan's laws also provided that an alien man who married a female Japanese head of household, or was adopted as a son, could acquire nationality derived from such status acts.
All forms of nationality derived through status acts other than birth or naturalization, including parental acknowledgement, were eliminated from the 1950 law. By then, women in many countries, including Japan, had gained rights of suffrage. And there had already been movements, first in the League of Nations, by then in the United Nations, to formally regard a woman's were already movements toward recognizing a married woman's right to her own nationality, independent of her husband's nationality.
Marriage and adoption
Since 1950, alien wives and husbands of Japanese have had to petition for permission to naturalize if they want to be Japanese. However, being married to a Japanese significantly eases naturalization conditions. While nationality through marriage to or adoption by a Japanese ended with the 1950 law, naturalization conditions are eased for alien spouses of Japanese, and are eased even more for adopted alien children.
Acknowledgement and legitimation
Under the 1899 Nationality Law, an alien child could become Japanese through acknowledgement of either a father or a mother who was Japanese. The acknowledgement could be made after birth but had to be made before the child became an adult. Nationality acquisition was not conditioned by the marital status of the recognizing parent. That is, the child did not have to be legitimated.
The 1950 Nationality Law made no provisions for nationality through parental (paternal or maternal) acknowledgement after birth. Revisions effective from 1985 made it possible for a minor child to acquire nationality through acknowledgement after birth, so long as the child was legitimated by its acknowledging parents. In other words, the recognizing Japanese parent had to be married to the recognizing (or presumptive) alien parent.
While the 1899 law and the 1985 revision of the 1950 law provided for either paternal or maternal recognition, most cases involved paternal recognition by a Japanese father of a child born to an alien mother to whom the father had not been married. Unlike the 1899 law, the condition of legitimation imposed by the 1985 law meant that most such children could not become Japanese because the parents were unable or unwilling to marry.
In 2008 the Supreme Court struck down the acknowledgement constraint as unconstitutional. A revision effective from 2009 allows acquisition by acknowledgement alone. The revision included transitional measures to facilitate acquisition for those who in the past had been acknowledged after birth and before turning 20, though they may since have become adults. The acknowledgement condition remains unchanged from the 1985 law.
Recognition and legitimation:
The impact of marriage on parenthood
This article looks at the nationality acquisition problems faced by the child of an alien mother who is not married to the child's Japanese father, especially in cases in which the father has acknowledged his paternity other than before or at the time of the child's birth. Cases have been treated differently according to when they occurred, before or after a 1985 revision in the Nationality Law enabled acquisition of Japanese nationality if a minor child was both acknowledged and legitimated, and after a 2009 revision did away with the need for legitimation.
Changing attitudes toward illegitimacyAlthough the legitimation requisite was deleted from the Nationality Law, the distinction between legitimacy and illegitimacy remains a controversial element of the Civil Code. On 4 September 2013, the Grand Bench of the Supreme Court ruled 14-0 that a provision in the Civil Code, which provides that illegitimate heirs are entitled to inherit only half as much as their legitimate siblings, was unconstitutional. This was contrary to a 10-5 ruling in 1995 that halving the inheritance of illegitimate children not only did not violate the Constitution, but went halfway in recognizing that such children had rights of inheritance -- which actually makes sense in the larger history of status discrimination against illegitimate children in Japan and elsewhere. The 2013 decision cited changing perceptions of marriage and the family, in Japan and globally, as reasons to equalize a child's inheritance rights regardless of legitimacy. |
Allegiance change and naturalization
Birthright nationality is acquired as an effect of the operation of the Nationality Law, initiated by an appropriate notification. Naturalization is attributed only after submitting a notification of permission to naturalize issued by the Minister of Justice, or in exceptional cases by the National Diet, exercising their discretionary authority following acceptance of an appropriate applicaiton.
Naturalization, as it is understood in nationality law, did not become possible in Japan until the 1899 Nationality Law. Conditions for naturalization under the current 1950 law are essentially the same, though today there are more categories in which some conditions are relaxed or waived.
From 1873 to 1899, aliens became Japanese through alliances of marriage or adoption into a Japanese population register. In early times, people migrating to Japan, or drifting to its shores, became Japanese through a process called "kika" (帰化) -- a Sinific term meaning to "change one's allegiance" but submitting to the moral authority of the emperor, which became the term for "naturalization" in Japan's Nationality Law.
Contrary to popular opinion, naturalization in Japan has always been a fairly straightforward procedure. Most settled aliens have been eligible, and conditions have been eased for many categories of applicants.
Application requires some bureaucratic legwork, but mostly it requires a desire to want to be Japanese. Naturalization for some applicants also requires a willingness to accept legal limitations on the forms of names in family registers -- a family name (氏 uji) followed by a personal name (名 na) -- which apply to all Japanese, or a willingness to take a legal limitation issue to court after naturalizing. In the past, some applicants have also had to deal with extralegal pressure to adopt putatively "Japanese" names -- or, again, yield to such pressure and, after naturalizing, petition a family court for recovery of the name they really wanted -- assuming it conforms to the general rules on names in family registers.
The 1899 law specified civil and military offices and ranks that naturalized subjects were not allowed to hold. Since 1950, however, there have been no distinctions between Japanese nationality acquired naturally (at time of birth or legitimation) or through naturalization (later in life). Regardless of how one became Japanese, all Japanese qualified by age and other general status qualifications can hold any office, including that of prime minister.
From 1873 until 1899, it was possible for an alien to become Japanese by notification only through marriage or adoption. The government permitted some people affiliated with newly acquired territories, such as Ogasawara, to change their allegiance. Following the Sino-Japanese War of 1894-1895, some Chinese were allowed to migrate to Japan and change their allegiance for services rendered during the war.
There is some evidence that right-of-blood principles operated in the determination of the affiliation of children in unions between Japanese (Yamato) and Korean (Kara) men and women in early Japan and Korea, before these polities existed as we think of and name them today. Otherwise members of indigenous non-Japanese populations, and Korean and Chinese migrants from the continent, became Japanese by formally changing their allegiance to the Yamato court. This usually took the form of enrolling in household registers in settlements under the court's sovereign authority.
Naturalization in Japan:
And other ways aliens have become Japanese
This is an overview of allegiance change and naturalization in Japan with a focus on naturalization today.
Allegiance change in Yamato:
How outsiders became insiders in early Japan
The centerpiece of this article is a table called "Joining the Yamato fold: Submission and registration in early Japan". The table introduces cases of migration and change of allegiance of Koreans and Chinese in early Japan as recorded in early chronologies. The original kanbun texts are followed by a romanization of a Yamato reading of the text and two English translations, and commentary.
Belonging in Japan past and present
Before and after "nationality" and "citizenship"
This article introduces and discusses ways in which people became Japanese from about the 6th century to the present, before and after the advent of "nationality" and "citizenship" from the late 19th century. Today's "nationality" and "citizenship" evolved from forms of "proto-nationality" and "proto-citizenship" in earlier times as the distribution of "sovereignty" changed from "imperial" to "popular".
1873 intermarriage proclamation:
Family law and "the standing of being Japanese"
This article examines the legal arrangements made by the Meiji government to recognize marriages of Japanese to foreigners, and to permit foreigners to become Japanese through adoption and marriage in accordance with family law as reflected in the administration of the 1872 Family Register Law. The article includes the 1873 proclamation and a related ordinance in both Japanese and English.
Becoming Japanese in the Meiji period:
Adopted sons, incoming husbands, and naturalization
This article introduces the earliest recognized marriages of Japanese to foreigners, the earliest cases of foreign spouses who became Japanese through marriage, and some cases of change of allegiance permitted by official deliberation rather than by law. The article includes tables of statistics on recognized marriages of Japanese to foreigners, by year from 1873-1897, and by sex of the Japanese spouse and nationality of the foreign spouse.
International marriages, 1873-1899:
Statistics based on Koyama Noboru's 1995 study
This article consists of my analysis of Koyama's data on marriage and adoption alliances between Japanese and aliens permitted under the 1873 Great Council of State Proclamation No. 103.
E. Peshine Smith's nationality:
Proceedings of the U.S. Consular Court in Yokohama, 1873
Once upon a time in a land called Japan there was a character whose full name was Rasmus Peshine Smith (1814-1882) -- better known, even to himself, as E. Peshine Smith. He'd been many things before coming to Japan in 1871 -- a journalist and newspaper editor, a professor of mathematics, and a public education official and court reporter in the state of New York -- in addition to being student of law and economics. And in Japan, he decided he should be Japanese.
If Ito can be American, why can't Pak be Japanese?
This article, published in 1983, answers the question in the affirmative: Pak, Kim, and certain other common putatively "Korean" names can, in fact, be Japanese names. The characters used to write these names have long been on lists of acceptable characters, and no laws have ever disallowed their use as family names on Japanese registers. Since 1983, the list of acceptable characters has been expanded to include many other characters commonly used for Korean and Chinese family names. Contrary to many reports, the Family Register Law has never placed ethnic restrictions on name choice.
Naturalization under 1899 Nationality Law:
And other unnatural means of nationality acquisition
This article focuses on articles in the 1899 Nationality Law that provided, for the first time, a procedure for naturalization. It also looks at how other means of acquiring Japanese nationality, including those adopted from the 1873 proclamation on marriage and adoption alliances with foreigners. The article includes tables of statistics on acquisition of Japanese nationality by year, means of acquisition, and original nationality.
Naturalization under the 1950 Nationality Law:
Closing the gap between social and national experience and identity
This article features a table of statistics on naturalization by nationality, and figures on renounced and lost nationality, from 1950 to the present. The table highlights the impact of several events, such as the return of Okinawa to Japan and Japan's switch of recognition from ROC to PRC, both in 1972. It also features the results of a Ministry of Justice study of the family ties of naturalizers from 1952-1962, the first decade after the end of the Occupation of Japan, when Chosenese and Taiwanese lost their Japanese nationality and became eligible to apply for permission to naturalize.
How to become a Japanese citizen national
This article, written in 1988, a quarter of a century ago, argues that naturalization in Japan has never been a particularly difficult process. The paperwork can be more challenging for some aliens than others, mainly because of the problems they experience obtaining required documents from their home countries. The article is based on an investigation of naturalization procedures in both Japan and the United States. It also reflects the experiences of friends and acquaintances who naturalized.
Naturalization disapproval ruling, 2006-2008:
Court rejects alien's request for mandation of naturalization
Nagoya District Court dismisses Pakistan man's claims that the Minister of Justice's disapproval of his application for permission to naturalize was illegal, and also rejects his allegation that the Minister of Justice's action was based on his Islamic religious activities, and not on the allegations of illegal labor practices made in the course of the litigation, which the Ministry of Justice was not aware of at the time of the Minister of Justice's disapproval of his naturalization application.
Naturalization and names:
The legal and extralegal wrinkles of choice
This article examines legal restrictions on the forms of names permitted Japanese nationals on family registers. It includes issues related to the choice of post-naturalization name made by applicants for permission to naturalize.
Soshi kaimei myths:
Confusion then, misunderstanding now
This article examines the widely misunderstood and misreported "sōshi kaimei" (創氏改名) or "create family name, change personal name" movement in Chōsen (Korea), from 11 February to 10 August 1940, to bring Chōsen family law into line with family law in the prefectural Interior. Late 1939 ordinances mandated the adoption of a common family name (氏 shi, uji) among members with different surnames in the same household register (head-of-household notification, no fee required), and continued to permit petitions for changing a personal name (persuant to Chōsen family law, fee required). The name-change movement symbolizes, today, past assimilatist policies which, to at times, biased administrative guidance in postwar naturalization procedures.
My own naturalizationI considered naturalizing in the late 1980s, after my children were able to acquire Japanese nationality. Several friends of different nationalities had naturalized, and I had collected their documents and stories. In 1999, thinking it might be a good way to start the new millennium, I finally got around to making an appointment at the local legal affairs bureau. I underwent a qualification interview to determine what I needed to do, as requirements depend on an applicant's personal and family circumstances. I collected the documents and completed the forms as instructed. But I didn't file the papers. Uncertainties concerning the health of my parents in California, and longer re-entry permits for permanent residents, persuaded me to wait awhile. Were I to lose my U.S. citizenship, and have to spend more than a few weeks in the United States, I'd be better off with a U.S. passport and permanent residence in Japan. I also realized that, in my heart of hearts, I really wanted to be stateless -- liberated from the notion that I belonged to country. In the fall of 2011 -- my mother gone and my father going, and the Immigration Bureau about to centralize the overseeing of resident aliens entirely under its authority -- I decided to pick up the phone and make another appointment with the local legal affairs bureau. I completed the required paperwork and filed my application by the end of the year. Within 6 months, my application was approved and announced in the Official Gazette. A week or so later I had a family register, on which it is stated that I filed a proper notification of choice of nationality. Japanese passportsArmed with a family register, I immediately applied for a Japanese passport. A couple of weeks later -- on 4 July 2012 -- I picked up my 1st Japanese passport. In July 2022, I renewed my Japanese passport for another 10 years. When applying for these passports, I acknowledged on the application form that I possessed U.S. nationality through birth. And on both occasions, the clerk processing my application confirmed that, not withstanding the fact that I continued to possess U.S. nationality, I qualified for issuance of a Japanese passport. No immigration officer, and no municial civil servant, has ever blinked an eye when I present my Japanese passport or municiple resident identification card. The only people who have questioned whether I am Japanese have been ordinary people who, like most ordinary people, are unfamiliar with Japan's civil laws and under the spell of racialist preconceptions. |
Dual nationality and statelessness
The Nationality Law provides that Japanese who voluntarily acquire the nationality of another country will lose their Japanese nationality. However, multiple nationality has never been illegal in Japan and is increasing.
Since 1985, Japanese with other nationalities have been required to either declare a choice of Japanese nationality, and abandon and agree to endeavor to renounce their other nationalities, or declare their renunciation of Japanese nationality with proof that they possess another nationality which Japan recognizes.
While Japan requires abandonment of other nationalities (a declaration to Japan), it cannot force renunciation (a declaration to the country that governs the nationality). Whether, after declaring an intention to continue to be Japanese, a Japanese with other nationalities renounces them, is up to the individual and the governing country. Some countries, including Japan and the Republic of Korea, have provisions for loss of nationality because of abandonment (relinquishment), while others require explicit acts of renunciation, and some discourage renunciation, make it difficult, or in some cases will not allow renunciation.
Though maintaining another nationality in addition to Japanese nationality is not illegal in Japan, in some cases it can be regarded as a violation of a legal agreement to divest oneself of the other nationality. The Minister of Justice has discretionary authority to initiate ministerial actions against dual nationals it feels have abused their Japanese status or violated the trust invested in them when permitting them to naturalize. And such actions can result in loss of nationality, including nullification of naturalization.
Japan's 1899 Nationality Law did not have a provision for renunciation until 1916, and it was introduced to accommodate a demand from the United States that Japan enable nationals who were also citizens of the United States to renounce their Japanese nationality. In principle, Japan will not accept a renunciation notification from a dual nationality without evidence that the notifier's alien nationality is valid. Japan may also refuse to accept a renunciation notification from a Japanese dual national if the other state is one which Japan does not recognize -- among other reasons.
Dual nationality in Japan:
Not forbidden, unpreventable, and tacitly permitted -- to a point
This article explores the gray zones of Japan's Nationality Law, which explicitly neither permits or prohibits dual nationality. It also looks at why dual nationality may not be the best choice for everyone who has the option of possessing more than one nationality, and examines a case in which a naturalizer lost his nationality.
Treaties concerning dual nationality:
Problems arising from conflicts in nationality laws
Here you will find the texts of, and commentary on, the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, and the 1930 Hague Protocol on Military Obligations in Cases of Double Nationality.
The Kawakita treason case:
The double-edges of dual nationality
During the Pacific War, a number of people in the United States and Japan faced difficulties because of their sometimes ambiguous status as nationals of both countries. Kawakita's nationality seemed to be situational. Whether he could be charged with treason for acts he was alleged to have committed in Japan during the war hinged on a determination of his nationality at the time. US courts had to consider the effects of family registration on Kawakita's nationality status.
Statelessness
If dual nationality can be heaven for some people, statelessness can be hell for others. But it is next to impossible to intentionally become de jure or even de facto stateless in Japan. Legally, a "stateless" person is someone who no state recognizes as its national. Some people, though, have a nationality that doesn't fully function
Article 22 of the 1947 Constitution provides that "Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate." This means that a Japanese national has the right to settle in another country and acquire its nationality, if that country permits, and to renounce Japan's nationality. Generally, Japanese nationality will be automatically lost by volitional acquisition of another nationality, so the putative "right" to renounce Japanese nationality is generally recognized only if the renouncer has another valid nationality, most likely one that was passively acquired through birth or marriage (see "Dual nationality" above).
Statelessness at time of birth in Japan is not entirely prevented, even when both parents are Japanese. A non-stateless alien in Japan may also become de jure or de facto stateless for a number of reasons. Regardless of the cause of of their statelessness, stateless people must register as aliens in order to be legally recognized in Japan. People who become stateless in Japan generally have the right to reside in Japan, and to travel abroad and return to Japan.
Statelessness in Japan:
De jure and de facto lack of nationality
This article looks at how some people become de jure stateless in Japan while others become de facto stateless. It also considers the legal wrinkles of both kinds of statelessness, which differ in their origins but share some inconveniences. Note that, for legal purposes, including treatment under laws of laws, de facto stateless people are not categorically "stateless" (see "Affiliation and applicable law" below).
Treaties concerning statelessness:
The growth pains of the "right to a nationality" movement
This article presents and discusses the texts of the 1930 Protocol Relating to a Certain Case of Statelessness, the 1930 Special Protocol Concerning Statelessness, the 1954 Convention Relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness, and examines other right-to-nationality measures, including the 1948 Universal Declaration of Human Rights, the 1959 Declaration of the Rights of the Child, the 1966 International Covenant on Civil and Political Rights, the 1979 International Year of the Child, and the 1989 Convention on the Rights of the Child.
Loss of nationality
Japanese can lose their Japanese nationality when they volitionally acquire the nationality of another country, such as through naturalization in the country. Japanese nationals who have acquired another country's nationality passively, usually through birth, may also lose their Japanese nationality if they fail to file a notification of choice of Japanese nationality, or declare to another country of nationality that they abandon (relinquish) Japanese nationality -- or if the Minister of Justice deems they they have held an official post or served in the military of another country of nationality in a manner detrimental to Japan's national iterests.
Actual loss of Japanese nationality by a dual national generally requires that the dual national file a notification of renunciation of Japanese nationality. Otherwise, loss of Japanese nationality can only be effected through due process by competent Ministry of Justice officials, ending with actions in the name of the Minister of Justice. Due-process nationality losses (deprivations, denaturalizations, expatriations) are announced in Kanpō, the Official Gazette, on the day the forfeiture of nationality is effective.
Japanese nationality acquired later in life -- whether through special transitory measures in the Nationality Law or through legitimation (both of which are based on automatic application of the law following notification), or through naturalization (which is based on notification following application for permission), may also be lost if authorities later consider the acquisition to have been fraudulent, i.e., based on false claims. A person who has naturalized may also be divested of their Japanese nationality if they fail, without good reason, to honor a signed vow to renounce other nationalities, or if they have abused their dual nationality status. There appear to have to have been only a few such cases, in which the Ministry of Justice conduct hearings to determine whether loss of nationality is warranted.
In other words, Japanese nationality today is generally not casually lost. Loss of nationality, like acquisition of nationality, requires formalities -- on the part of the person who stands to lose a nationality, or on the part of an official who is aware of the situation and chooses to enforce a legal provision for loss of nationality.
Japanese who volitionally acquire another country's nationality may not immediately lose their Japanese nationality. Their naturalization may go unreported or undetected, and some may even succeed in renewing their Japanese passport. Those who do not report their naturalization -- including some who may not be aware that according to the law they have lost their nationality -- are likely to be deemed no longer Japanese when they attempt to renew their passport. In 2018, a group of 6 such nationality losers and 2 potential nationality losers filed a lawsuit against the government of Japan, claiming that the nationality loss provision in the Nationality Law is unconstitutional. In 2021, a 3-judge bench of the Tokyo District Court disagreed with this claim.
Nogawa et al. v. State, 2018-2021
Loss of nationality caused by Article 11 not unconstitutional
On 21 January 2021, the Tokyo District Court ruled in favor of the government of Japan in a case filed on 9 March 2018 by Nogawa Hitoshi and 7 other plaintiffs, who challenged the constitutionality of a stipulation in the Nationality Law that nationals of Japan who acquire the nationality of another country through their own wish will lose the nationality of Japan. On 21 February 2023, the Tokyo High Court upheld the lower court's ruling against Nogawa and the 7 co-plaintiffs.
Statutory loss of nationality for some children
There is one exception. Article 12 of the 1985 revision of the 1950 Nationality Law, like Article 9 in the original 1950 law, which was inspired by article 20-2 in the 1924 revision of the 1899 Nationality Law, provides that a child born outside Japan who presumably qualifies for birthright Japanese nationality, who acquires a foreign nationality through birth, will lose its presumptive Japanese nationality retroactive the date of its birth if its parents fail to complete formalities in a timely manner. There are no provisions for such statutory loss of Japanese nationality for children born in Japan who acquire a foreign nationality through birth in addition to Japanese nationality.
In 2010, a group of children born in the Republic of the Philippines, a right-of-blood country, between Japanese fathers and Filipino mothers, who had acquired Filipino nationality through their mothers and believed they also had a right to acquire Japanese nationality through their fathers, sued the Japanese government on the grounds that the distinction Article 12 made between them and those born in Japan was unconstitutional. In 2015, the Supreme Court ruled against the children.
Filipinos v. State, 2014-2015:
Distinction made by Article 12 not unconstitutional
The Supreme Court, following both the Tokyo District Court and the Tokyo High Court, ruled that the distinction made between children who through birth outside Japan would be dual nationals, and those born in Japan, "does not correspond to discrimination [under Article 14 of the Constitution] that has no rational reason" (10 March 2015 judgment).
Affiliation and applicable law
Nationality is generally associated with passports used to leave or enter a country at a national border, or as a factor in determining duties and rights of local or national citizenship. However, nationality is also important in private civil matters -- such as divorce, adoption, and inheritance -- as are other measures of "belonging" or "closeness" to a state or other legal jurisdiction.
Courts in Japan, as in other countries, are empowered by laws of laws, and by precedents in international private law, to determine which state's law should apply to the matter as the governing law -- which may be the party's home country law or another law. Criteria for determining applicable law include, in addition to nationality if one exists, an individual's current or most recent domicile or habitual residence, or past or present behavior including travel, correspondence, and political activities, and possibly even the individual's preference.
Some aliens in Japan are more likely than others to encounter disputes regarding applicable law in private civil matters heard before Japanese courts. The rules for determining governing law have somewhat changed over the years, and courts have also somewhat varied in how they apply conventional criteria for determining home country or governing law. Determinations of the state affiliations of a few people who are classified as nationals of "China" (Chōgoku, now meaning PRC but embracing also ROC) or of "Korea" (Kankoku/Chōsen, meaning ROK and the erstwhile (defunct) Japanese territory of Chōsen, but also DPRK), have been particularly controversial, as Japan switched its "China" recognition from ROC to PRC in 1972, has formally recognized ROK as "Korea" only since 1965, and does not yet recognize DPRK, though the two states began normalization talks in 1991.
Status and applicable law:
Governing the civil affairs of territorialized people
This feature includes overview of the laws of laws which have determined which legal entity's laws have governed in private civil matters in Japan, in terms of both international private law (1890 Rules of Law, 1898 Rules of Law, and 2007 Common Rules Law), and interterritorial private law (1918 Common Laws). The latter law determined applicable law in private matters involving people affiliated with different legal jurisdictions of the Empire of Japan, namely the Interior, Chōsen, Taiwan, Kwantung Province, and the South Sea Islands.
Cho Kyongje on "Personal law of Koreans in Japan":
How Japanese courts have treated family matters of Kankoku/Chōsenjin in Japan
This a review of Cho Kyongje's study of applicable law in private civil matters involving Koreans in Japan of Kankoku or Chōsen status, the former being the Republic of Korea (ROK), the latter being the defunct Japanese territory of Chōsen, separated from Japan provisionally in 1945 and permanently from 1952. Cho introduces and analyzes 37 cases heard before family and district courts between 1954 and 1988, in the context of discussing the various criteria that have been used to determine applicable law in private matters concerning aliens affiliated with territories having different legal jurisdictions, such as "Chōgoku" (ROC and PRC) and "Chōsen" (ROK and DPRK).
Estate distribution ruling, 1995-2000:
Applicable law issues in inheritance dispute in Japan-ROK family
Text and translation of, and commentary on, Supreme Court judgment in a case which pitched (1) the offspring of multiple, at times bigamous marriages, and an out-of-wedlock relationship, of a man with ROK nationality who had naturalized in Japan, against (2) the man's last wife, over (3) the real estate he left when he died.
Marianne's custody dispute, 1956-1958:
Law wins war but love wins battle in Lagerfelt v. Yamaguchis
A study of Marianne Wilson Kuroda's quest for family, belonging, and justice, from her birth in Japan, between a Swedish mother who had been born in Japan to parents born in Japan, and an American father, to her present life. Orphaned shortly after her birth, Marianne continued to be cared for her nanny, but then her mother's Swedish family insisted that she was Swedish, hence Swedish custody rules applied, and so they had the right to raise her in Sweden. Her de facto foster parents held that she would be better off if left in their care in Japan. Two Japanese courts agreed with Marianne's Swedish family, but public opinion sided with her Japanese caretakers. In the end, the two parties agreed, in return for not taking the case to the Supreme Court, that the Swedish family would have custody, but the Japanese family would continue to be involved in Marianne's upbringing -- in Japan.
Chōsen, Taiwan, and Karafuto
Historically, Japan's nationalization of Taiwan (1895), Karafuto (1905), and Korea as Chōsen (1910), the provisional loss of these territories as parts of its sovereign territory when it surrendered to the Allied Powers at the end of World War II in 1945, and their formal loss upon effectuation of the terms of the San Francisco Peace Treaty in 1952, created a host of nationality issues that continue to affect some people in Japan and elsewhere in Asia. The illumination of the legal aspects of these issues is somewhat darkened by historiographic ideologies that racialize and victimize everyone who has been affected by Japan's imperial expansion and collapse.
Unfortunately, the cold facts of history do not favor analyses that advocate human rights for yesteryear's politically downtrodden. It is not that what Japan did or did not do, in the name of its government, during and after the Occupation of Japan from 1945 to 1952, should not be subjected to moral judgment -- but that such judgment must take full measure of contemporary conditions and what Japan's government was capable of doing, given the political realities of the Occupation and early post-Occupation years.
As a legal status, Japanese nationality has been a matter of membership in a population register affiliated with Japan's sovereign territory. For this reason, people in registers affiliated with Taiwan, Karafuto, and Korea as Chōsen became Japanese when these territories became parts of Japan as a result of internationally recognized treaties.
The separation of these territories from Japan's national dominion in 1952, under the terms of the San Francisco Peace Treaty, resulted in the separation of Chosenese and Taiwanese, including those domiciled in Japan as redefined in 1945, from Japanese nationality. People in Karafuto registers did not lose their Japanese status, but they had to establish new registers in the municipalities where they had settled, whether after their evacuation before the end of the war, or after their repatriation during or after the Occupation of Japan.
It has become a cliche to regard the treatment of especially Chosenese in Occupied Japan as "contradictory" or "paradoxical" or "discriminatory" or "racist" -- and to contend that they were "unilaterally stripped" of their Japanese nationality after the Occupation. Some scholars even regard their legal treatment as "constructed" by racism.
Taiwanese and Chosenese were separated from Japanese nationality in 1952 under the approving gaze of the Republic of China (ROC) and the Republic of Korea (ROK), but also under the watchful eyes of the Allied Powers represented mainly by American officials in GHQ/SCAP. The San Francisco Peace Treaty merely confirmed that Japan had abandoned all claims to Formosa (Taiwan) and Korea (Chōsen), and immediately after its signing in 1951, GHQ/SCAP brokered normalization talks between Japan and "China" and "Korea" -- which for the United States, and hence for Japan, meant ROC and ROK.
Neither ROC nor ROK regarded the nationality status of people in Taiwan or Chōsen registers as a matter for negotiation. What Japan did with its nationality, as a state about to regain its sovereignty, was a matter of domestic, not international, law. Documents from ROK's own archives on ROK-Japan talks in 1951-1952 clearly show that ROK rejected, in principle, a conventional treaty in which there would be provisions for choice of nationality. ROK declared that nationality did not qualify as a bilateral issue between the two countries.
GHQ/SCAP, the principal agent in the partial alienation of Taiwanese and Chosenese domiciled in Occupied Japan, viewed nationality matters as subject to status agreements in treaties between Japan and the states that would be governing Formosa and Korea. "Korea", however, had been part of Japan, hence was not at war with Japan, and so could not be regarded as an Allied Power. And by the time the Allied Powers and Japan got around to negotiating and signing a peace treaty, ROC -- though one of the "Big Four" Allied Powers in the war against Japan -- was not allowed to participate because of divided opinions among other Allied Powers over the recognition of "China" -- which, like "Korea", had become a divided entity.
Japan had no choice but to negotiate separate agreements -- a peace treaty with ROC, and a normalization treaty and status agreement with ROK -- apart from the collective peace treaty it signed with practically all other Allied Powers. And in late 1951 and early 1952, when negotiating with ROC and ROK, ROC was still virtually at war with the People's Republic of China (PRC), which had driven the ROC government into exile on Taiwan, and ROK and still engaged in a bitter war with the Democratic People's Republic of Korea (DPRK), which had invaded it in 1950.
Some GHQ/SCAP officials and Japanese government officials felt that provisions should be made for Chosenese and Taiwanese -- referring to "Koreans" as former Japanese subjects and to "Formosans" as distinct from ROC nationals, particularly those who were in Japan's prefectural Interior at the time Japan surrendered, and had remained in Occupied Japan -- to remain Japanese. But because the San Francisco Peace Treaty had already been signed, without guidelines for nationality settlements, GHQ/SCAP had no choice but to leave such matters to Japan and ROC and ROK.
ROC and Japan signed a peace treaty in Taipei on the day the terms of the San Francisco Peace Treaty came into effect and Japan regained its sovereignty. The Taipei treaty made no provisions for choice of nationality. Most Taiwanese had already become ROC nationals, and Japan agreed that ROC laws would govern the nationality status of Taiwan-registered ROC nationals in Japan.
Concurrent negotiations between ROK and Japan broke down, but not because of nationality issues. Japan and ROK had reached an agreement over status issues. The 1 April 1952 status agreement draft was ready to sign. But disputes over territory and property derailed their talks shortly before the San Francisco Peace Treaty came into effect. During the talks, ROK clearly stated that what Japan did with its nationality was up to Japan.
Formally, ROK took the position that Korea had been freed from the yoke of Japanese sovereignty from 9 August 1945, when Japan first signaled to the Allied Powers that it would accept the terms of the Potsdam Declaration. Korea became independent on 15 August 1948 when ROK was founded -- according to ROK -- and all Koreans had become its nationals when its Nationality Law came into effect on 20 December 1948. ROK also considered the 1910 annexation treaty to have been illegal, hence took the position that Koreans had never legally become Japanese.
GHQ/SCAP seems to have fully understood the difficulty -- the diplomatic impossibility, actually -- or getting ROK and Japan to agree to the sort of "choice" provisions that were common, though not universal, in European territorial settlements, which are generally predicated on mutual recognition of the validity of precedent territorial transfers. Japan, which historically linked its nationality to registers within its sovereign territory, logically concluded that territorial separation implied nationality separation.
By then, of course, GHQ/SCAP was not in a position to object to Japan's conclusion that, under the circumstances, the best solution was to consider that all Chosenese and Taiwanese would lose their Japanese nationality as an effect of the peace treaty it had signed with the Allied Powers. And those who wanted to be Japanese would have to naturalize.
Shortly before the terms of the peace treaty came into effect, concerned about the ability of a number of Chosenese civil servants to keep their government posts without Japanese nationality, the Japanese government expedited applications for their naturalization. Their applications were approved, and in accordance with the Nationality Law, their naturalizations -- meaning their acquisition of a family register in Japan -- were announced in Kanpō, the Official Gazette, on the day they lost their Chōsen-based Japanese nationality.
"Japan" and "Japanese":
The legal alienation of territories and inhabitants
This article, a collection of materials and commentary on the legal statuses of Taiwanese and Chosenese during the Allied Occupation of Japan from 1945 to 1952, examines the stages in which Chosenese and Taiwanese were alienated from Japanese nationality as a consequence of the territorial separations brought about by the terms under which Japan surrendered to the Allied Powers at the end of World War II.
Japanese nationality after World War II:
Japan's bilateral talks with ROC and ROK
This article examines the positions taken by Japan, ROC, and ROK regarding their respective nationalities, after the San Francisco Peace Treaty was signed in 1951, and before it came into effect in 1952, with a focus on negotiations between Japan and ROK. It includes my transcriptions and translations of key documents from ROK archives, including the 1 April 1952 ready-to-sign status agreement.
Separation and choice:
Between a legal rock and a political hard place
This article examines nationality and family register dispositions concomitant with the effectuation of the San Francisco Peace Treaty on 28 April 1952, and why naturalization was the only option given those who lost Japanese nationality. It includes transcriptions and translations of key documents, including Sebald's 15 August 1949 memorandum on the "Status of Koreans in Japan" and the 19 April 1952 Attorney General's Office notification concerning the disposition of nationality and family register matters regarding Chosenese, Taiwanese, and others, concomitant with the effectuation of the Peace Treaty.
Alien registration and immigration:
Changing statuses during and after the Occupation of Japan
This article is a collection of materials and commentary related to the laws and treaties that have governed the statuses of people regarded as aliens under Occupation and post-Occupation registration and exit-enter-country control laws.
Nationality confirmation cases:
How Japanese courts have adjudicated postwar nationality disputes
Brief overview of post-Occupation cases seeking confirmation of Japanese nationality in the light of the 1899 and 1950 nationality laws, legacy territorial status laws, and the 1952 Peace Treaty, with links their judgments.
Suffrage in Imperial Japan
A lot of academic critique has been directed at the alleged lack of rights of suffrage for subject-nationals of the Empire of Japan affiliated with Chōsen, Taiwan, and Karafuto. It is widely -- but erroneously -- believed that they did not have the same rights of suffrage as other Japanese, namely those affiliated with the prefectural Interior.
This, however, is not true in so far as personal suffrage of male subjects is concerned from 1925. Regardless of territorial affiliation, and subjects had rights of suffrage if they resided in an Interior election district, while no one who resided outside an election district -- whether in the Interior (which had places without election districts) or elsewhere in the sovereign dominion.
When finally in 1945 Japan legally provisioned the establishment of election districts in Chōsen and Taiwan -- as well as in Karafuto, which had become a prefecture in 1943 -- it did so in the same spirit of suffrage within Interior election districts. In these three territories, the right to elect and the right to be elected to an office would be based, as in existing election districts, on residence and other objective criteria -- not on territorial register status. In other words, suffrage rights were equal for all subjects -- contingent only where one resided -- just as in the United States, where residence has determined whether an American citizen can vote or run for office.
Japan and the United States:
Affiliation and status of nationals and aliens
This article looks at the general history of the development of suffrage rights in Japan from their birth in the 1890 Constitution, to the end of the Pacific War in 1945, by which time legal provisions had been made for election districts throughout the sovereign empire -- and from postwar reforms in suffrage before and after the effectuation of the 1947 Constitution imperial era in 1945, to the present, when the issue of the day is "alien citizenship". The article separates the issues of personal rights of suffrage, which were equal for all Japanese between 1925 and 1945, including Chosenese and Taiwanese -- as opposed to suffrage within territories, which was a matter of territorial democratization. The article also examines the manner in which Chosenese and Taiwanese lost their personal rights of suffrage in 1945 as a result of the way in which the Allied Powers defined "Occupied Japan" and partially alienated residents of Occupied Japan whose family registers were in Chōsen and Taiwan.
Other nationality issues
Japan's Nationality Law evolved from, and continues to be essentially based on, Japanese family law. As family law has changed, so has the Nationality Law -- and as the Nationality Law has changed, so has family law. A 2008 Supreme Court decision in several nationality confirmation cases ruled that discriminating against illegitimate children was unconstitutional. This decision was followed by a 2013 Supreme Court court that it was unconstitutional to discriminate against out-of-wedlock child in matters of inheritance.
Statelessness and dual nationality are continuing universal issues. Other issues that vary from state to state include (1) the acquisition of nationality by children born through surrogacy, (2) the acquisition of nationality through abuse of the law or fraud, and (3) the acquisition of nationality by children born in Japan to settled alien parents.
An issue more peculiar to Japan is whether to permit the unconditional naturalization of aliens classified as Special Permanent Residents -- people in Japan who lost their Japanese nationality when Japan lost Taiwan (Formosa) and Chōsen (Korea). This issue includes the option of extending "national treatment" to SPRs in the form of rights of suffrage.
Adoption and surrogacy
Since the Nationality Law rests on the foundations of family law, the meanings of terms like "father" and "mother" in the Nationality Law are determined by Civil Code provisions that also govern the Family Register Law. A line is drawn between lineal ties and legal ties based on adoption or guardianship.
However, Japanese family law does not yet accommodate surrogacy births. Japanese couples who need to resort to surrogacy to have a child usually go overseas. Even when the wife is the donor of the ovum, however, Japanese law will view the surrogate mother as the child's mother. And unless the husband is qualified to acknowledge paternity before or at the time of the child's birth, the child will not be able to acquire Japanese nationality through birth if the surrogate mother is an alien.
Adoption and surrogacy:
Redefining the ethics of parenthood
This article examines the need to facilitate the acquisition of nationality by adopted children, and by children born through surrogacy and other reproductive methods not yet legalized in Japan.
Nationality and suffrage
The Constitution limits rights of national suffrage to nationals, but does not limit rights of suffrage in municipalities and prefectures to nationals. local suffrage
Status and citizenship:
Rights and duties of nationals and aliens in Japan and the United States
See this page for links to articles on evolution and spread of rights of suffrage in Japan from the Meiji, Taishō, and Shōwa periods, to the present Heisei era.
Aliens and the Constitution:
The incongruence of "kokumin" and "nanbito"
See this page for links to articles and court decisions regarding especially aliens and suffrage under the 1947 Constitution and related laws.
Nationality and suffrage:
Some Japanese, most aliens barred from political rights
This article is an overview of issues related to the concept of "alien citizenship" -- meaning, here, the extension of rights of political participation in local if not also national affairs to certain or all aliens.
Nationality and social welfare
The availability of social welfare programs to aliens has somewhat varied locally, but over the decades, nationwide standards have come to be applied to social welfare availability. Generally all aliens legally residing in a municipality in Japan are able to enroll in the National Health Insurance and National Pension schemes, which are administered by local governments.
Local governments also administer Livelihood Assistance -- public assistance for people who have no income -- but are limited by considerations of nationality and status of residence in the case of aliens. The original 1946 law made all local residents eligible, but a 1950 revision limited eligibility to Japanese nationals. A 1954 revision extended eligibility to permanent residents and alien spouses of Japanese. At present, special permanent residents, general permanent residents, long-term residents, recognized refugees, and alien spouses of Japanese and permanent residents -- namely, all aliens who are permanently or quasi-permanently settled in Japan -- are elegible.
Nationality and social welfare:
Health, old age, disability, and family related benefits
This article is an overview of issues related to the inclusion of aliens in Japan's social welfare programs.
Shiomi v SSA, 1973-1989:
Nationality clause nullification not retroactive for disability benefits
This article presents the decision in a lawsuit by a Japanese who had naturalized as a Korean but discovered that he did not qualify for disability benefits available to Japanese because the nullification of a nationality restriction in disability benefit qualifications was not retroactive to the time when the person had been an alien.
Second-generation nationality
Children born in Japan to settled aliens become Japanese through birth and at time of birth only if both parents are stateless. Otherwise they naturalize when older. The conditions for naturalization are considerably relaxed for various categories of settled aliens and their Japan-born descendants. However, there is now a move to provide options for acquiring nationality through notification if the parents or the child have fulfilled certain residency requirements.
Second-generation nationality:
Recognizing the attachment of settled aliens
This article reviews the movement toward attributing nationality to children born in a jus sanguinis country to domiciled aliens.
Nationality abuse and fraud
More people appear to be seeking nationalities of convenience for themselves or their children. Some states are moving to prevent or minimize the acquisition of their nationality through fraud or contrivance.
Nationality law abuse and fraud:
Exploitation of blood and soil "birthright" principles
This article examines how and why some states are tightening their nationality laws to prevent or minimize acquisition of nationality of convenience.
Nationality after death
Nationality generally does not extend to the next world. However, some states have granted their nationality posthumously to people who had been in the process of naturalizing at the time of their death, or who had died while serving the country in a war, among other reasons.
In Japan, 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 1986, a family court recognized a petition by the father of Soga Hitomi to strike her, and her mother, both of whom were missing and presumed dead, from their family register, at which point they no longer legally existed except in consideration of legacy cases concerning incidents at the time they were living. However, Soga Hitomi returned to Japan in 2002, from the Democratic People's Republic of Korea (DPRK), where she had and her mother had been abducted in 1978. Soga was accompanied by two daughters, born in DPRK, to Soga's American husband, Charles Robert Jenkins, an American soldier who had defected to DPRK from his post in the Republic of Korea in 1965. Shortly after Soga's return, her family petitioned the Family Court to reinstate her to her family register, which brought her back to life as a Japanese national.
Presumably Soga was also able to have her daughters entered in her family register, thus confirming their Japanese nationality, belatedly but justified by the circumstances that prevented her from doing so within the prescribed periods of time. The younger daughter, born in 1985, would have qualified for Japanese nationality through birth under the ambilineal rule of the 1950 Nationality Law as revised from 1 January 1985. The older daughter, born in 1983, would have qualified for nationality acquisition between 1 January 1985 and 31 December 1987, pursuant to transitional measures in the 1985 revision.
Nationality after death:
Honor, glory, country, and God in the next world
This article shows how some countries have dealt with movements to confer their nationality posthumously for political if not also commercial reasons. As a counterpoint, the article also reviews controversies over posthumous baptism and conversion in the service of religious interests.
Family and alien registers
Japanese nationality evolved from, and continues to be based on, membership in a family register associated with Japan's sovereign territory. Family registers today are designed to facilitate recording the effects of provisions in the Civil Code for determining personal status and status relations, particularly as they apply to Japanese nationals. Accordingly, the registers are not designed to accommodate the greater variety of names and scripts used by aliens, much less make allowances for the status effects of foreign laws.
Alien registers originated after World War II as means of keeping track of individual aliens residing in local municipalities. No thought was given to the need to revised the design and purpose of family registers to accommodate all people residing in Japan, regardless of their nationality. Consequently, alien registers were differently designed and separately administered from Japanese family registers.
In 2012, the "Alien Registration" as a system was replaced by the so-called "Residence Management System", and the municipal "residence registration" system was expanded to include aliens. Bringing aliens under the same administrative umbrella as Japanese, for purposes of residence registration, was of course an effective way of providing basic citizen services for all local residents, from public schooling and tax and welfare administration, to voter registration and inheritance.
However, alien registers and Japanese family registers continue to be managed entirely differently, which results in inefficiencies in the management of records of individuals in families consisting of members of different nationalities. Optimization of population management in Japan, including the emphasis placed on status relations, continues to require that family and alien registers be merged into a single population registration system.
Family and alien registers:
Why they still need to be merged and how to merge them
I began advocating the merging of family and alien registers in the late 1970s. This article originated as a brief expression of my thinking in 2007. I have left this part of the article unchanged for historical purposes -- and added why, despite the end of so-called "alien registration" as a system, the "Residence Management System" that replaced it is tantamount to painting stripes on a horse to make it look like zebra. Alien registers and family registers continue to be administered by different agencies as separate systems. Merging them into a common system, with more flexibility for variety and diversity of individual names and family relationships, continues to be a requisite for more effective population management.
Aliens in Japan:
The accommodation of migrant and native non-Japanese
This is a huge list of links to articles on this website related to alien control laws since 1945, affiliation and descent of "Kankoku/Chōsen" and "Chūgoku/Taiwan" aliens, and "Nikkeijin" semantics; exit-entry (immigration) and resident alien statistics including North Korea "returnees", alien residents since 1873, general and special permanent residents, long term residents; and vital statistics on international families, Japanese intermarriages, Korean intermarriages, Chinese intermarriages, rates of alien births, children of intermarriages, and the effects of the impact of ambilineality in the Nationality Law as revised from 1985 on the rates of alien births in Japan.
Fingerprinting in Japan:
Law enforcement, alien registration, and border control
This page consists of links to numerous articles on the history of "digital ridges" in Japan from Jōmmon to Heisei. Special attention is given to the anti-fingerprint movements of the 1980s, from my point of view as a participant refuser who -- unlike the self-congratulatory celebrations of the end of fingerprinting in alien registration that are commonplace in academic and journalistic accounts -- see the refusers as having won the battle but lost the war -- pretty much as the Ministry of Justice -- the ultimate victor -- planned.
Subnationality (regionality)
Practically all states as large and complex as the Empire of Japan had multiple legal jurisdictions that, like those in Japan, gradually became more alike through standardization of legal norms in the various territories. In Japan, this took the form of assimilating and integrating territories outside in prefectural Interior, into the Interior governmental system -- which itself was constantly evolving through the adoption and implementation of newer standards of governance.
Subnationality:
Racioethnic and territorial nations within nations
This article examines the subnational "territoriality" that differentiated Japanese subjects and nationals of the Empire of Japan according to the legal jurisdiction with which they were affiliated. All affiliates of the prefectural Interior, Taiwan, Karafuto, and Chōsen were Japanese, and as such they possessed the same nationality, and were subject to laws that applied to all Japanese. Otherwise they were subject to territorial laws, and to a domestic Common Law that determined applicable law in private matters, such as alliances of marriage and adoption, between Japanese of different subnationality.
Imperial Japan's territorial subnations:
The Interior, Taiwan, Karafuto, and Chosen
This article examines the subnational "territoriality" that differentiated Japanese subjects and nationals of the Empire of Japan according to the legal jurisdiction with which they were affiliated. All affiliates of the prefectural Interior, Taiwan, Karafuto, and Chōsen were Japanese, and as such they possessed the same nationality, and were subject to laws that applied to all Japanese. Otherwise they were subject to territorial laws, and to a domestic Common Law that determined applicable law in private matters, such as alliances of marriage and adoption, between Japanese of different subnationality.
The Empires of Japan:
The imperial beast as an elephant
This section contains numerous articles broken down into the following 3 groups, each representing different "takes" on the Empire of Japan.
The Sovereign Empire in multiple tongues:
Interior, Taiwan, Karafuto, and Chosen
Looks at the Empire of Japan as a legal entity -- "sovereign empire" versus the larger "legal empire" -- Japan's nationalizations of new territories -- treaties related to wars, surrenders, and peaces -- occupations and settlements -- post-occupation legacy issues, including several landmark court decisions that show the extent to which past laws continue to affect private matters today.
The Empire of Japan in English:
Linguistic difference and indifference
Looks at how the Empire of Japan has been differently and quaintly sketched in English metaphors that misrepresent the real Empire of Japan -- metaphors like "Japan proper" and "Korea" and "Formosa" -- which bear no resemblance to the "Japan" inclusive of "Chōsen" and "Taiwan" on a par with the prefectural "Interior" (including Karafuto) of the "real" Japan that continues to live in domestic legal regard of Japan's imperial past -- English as "information" versus "propaganda" -- "opinion" and "reportage" in English by Japanese and aliens alike.
The Detritus of Empire:
Cultural relics of Japan's imperial rise and fall
Looks at stamps, passports, et cetera, which tell their own stories about the nature of empire in war and peace.
De Vos and Wagatsuma 1995
As late as 1995, the introduction to a serious article in a serious book made the following statement about "citizenship" and "citizens" in the United States and Japan.
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Definitions of American citizenship begin with awareness of diverse origins comprising its citizenry. Determination of who is a Japanese citizen starts from completely different traditional premises -- that Japanese are of a totally homogeneous origin. |
The article -- Cultural Identity and Minority Status in Japan -- carries the by-line George A. De Vos and Hiroshi Wagatsuma. It appears on pages 264-297 (Chapter 12) in Lola Romanucci-Ross and George De Vos (editors), Ethnic Identity: Creation, Conflict, and Accommodation, Walnut Creek: AltaMira Press (Sage Publications), 1995, 400 pages, softcover, Third Edition.
The book was first published in 1975, reissued in 1982, and completely revised in 1995. Wagatsuma passed away in 1985, and De Vos passed away in 2010.
The above viewpoint was widely shared by all scholars I recall meeting in the late 1960s and during the 1970s, and most scholars I meet today on both sides of the Pacific seem to embrace the same understanding. I was not in the 1970s -- when a student of De Vos and through him an acquaintance of Wagatsuma -- prepared myself to think otherwise. By the late 1970s I was beginning to doubt -- and by the mid 1980s I was convinced -- that this common attitude toward "citizenship" and "citizens" in the two countries is extremely flawed, especially historically, but also today.
Much of my work since the 1990s has focused on pointing out that the United States began defining its "citizens" as people who were "free" and "white" and "male" and paid taxes. Racial "diversity" was definitely not in the thinking of those who penned and passed US nationality and immigration laws until after World War II. Although United States nationality is now nominally raceless, race boxes continue to proliferate in US law and legislation. "Race" (in its narrow sense) and now "ethnicity" (in the broader sense of "race") continue to define Americans in the enforcement of laws and policies that take a persons "race" or "ethnicity" into account.
In the meantime, Japan built its body of laws from 1868 without imposing a single racial or ethnic condition on the legal acquisition of the "standing [status] of being Japanese". While US laws were declaring immigrants of certain races ineligible for citizenship by naturalization, excluding people of certain "national origins" from immigration, and withholding citizenship from anyone who was legally an American Indian -- and while many states were enforcing anti-miscegenation laws and otherwise hard-wiring "race" into their segregationist social policies -- Japan's laws were entirely raceless.
In 1873, Japan began permitting some alien women and men to acquire Japanese status through marriage. The 1890 Civil Code, promulgated but never enforced, made general provisions for gaining, losing, choosing, and recovering the national status of being Japanese. There provisions were revised and elaborated in the 1899 Nationality Law. The conditions for being Japanese, as a subject national of Japan, was defined in purely civil terms, essentially according to family law, with nary a word about race much less ethnicity.
I am inclined to dedicate all of my research and writing on nationality and related social issues to my loss of innocence as a passive recipient of a highly stereotypic education -- but, in hindsight, one that prepared me to think differently. I remain, very genuinely, grateful to both De Vos (1922-2010) and Wagatsuma (1927-1985) for their essentially humanistic and always stimulating mentorships. De Vos liked to remark in seminars, with his trademark "fox" smile, that a disciple is expected to kill Buddha, and a son his father. In his own way, he encouraged me to advance his understanding of the human condition in my own way.
Without Wagatsuma, who passed on to me his and Sasaki Yuzuru's scrapbooks of newspaper and magazine articles from the 1960s on mixed-blood children in Japan, I might never have begun my own studies of migration and blending, which remains one of my main projects. And I probably would not have taken my children's disqualification for birthright nationality to court. Wagatsuma understood what was wrong with the Nationality Law and was willing to tap his deceased father's network of legalist colleagues and disciples to put me in touch with a competent and spirited team of female attorneys.
Wagatsuma's father, Wagatsuma Sakae (我妻榮 1897-1973), a legal scholar who specialized in family law, participated in drafting the reforms in Japan's family laws after World War II. On 19 June 1946, he had the distinction of being nominated for a seat in the House of Peers in Occupied Japan -- after it had became clear, in the new constitution then being deliberated in the Imperial Diet, that the House of Peers was doomed for immanent extinction. His only political role was suicidal -- to help vote the old order, including his own seat, out of existence, effective 3 May 1947.
Johnson 2013
Sheila Johnson, an anthropologist and acquaintance, wife of the late Chalmers Johnson, one of my advisers at Berkeley, made the following remarks in "Oh, To Be Japanese!" -- a book review of Leslie Helm's Yokohama Yankee: My Family's Five Generations as Outsiders in Japan (Seattle: Chin Music Press, 2013) -- posted 13 March 2013 on Los Angeles Review of Books.
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It is important to the Helm family story to understand that, until 1987, only children born to a Japanese father and a foreign mother could become Japanese nationals. The American sociologist William Wetherall, who married a Japanese woman and had two children with her, challenged this law because he wanted his children to have Japanese citizenship. After a lengthy legal battle the law was changed by giving the mother's rights legal status. Wetherall insists that Japanese citizenship laws have never been racist -- as early 20th century American laws denying US citizenship to "Orientals" assuredly were. He argues that Japanese laws were merely rooted in the patrilineal social structure and household registers. But, given that Japan was a virtually monoracial society and enforced the exclusion of Westerners from its shores until the arrival of Commodore Perry in 1854, being a Japanese citizen has been, for all intents and purposes, the same thing as being ethnically Japanese. |
Practically every statement Johnson makes in these two paragraphs are erroneous or misleading -- beginning with her characterizations of my children's nationality confirmation lawsuits.
The purpose of paragraphs 3 and 4 in Johnson's review is not clear. She never returns to the subject of how status laws operated in Japan in the late 19th century or later. Much less did she consider the options available to Helm and his children.
My children's lawsuits
First of all -- never mind my lack of fear of statistics -- I am not a sociologist. I am a product of an interdepartmental program that was overseen by Sheila Johnson's husband, the late Chalmers Johnson (1931-2010), when I was in the program in the 1970s, its only doctoral student. I had one foot in the Anthropology Department from which Sheila Johnson graduated, and of course she knew De Vos. My other foot was in the Oriental Languages Department, a vestige of my having once been an Oriental Languages major after transferring to the College of Letters and Science from the College of Engineering, where I had been a major in the Electrical Engineering Department. (Now you know why I get a charge out of writing about current issues.)
My children and their mother were plaintiffs in law suits in which I, as their father, was a co-litigant. The suits sought to confirm the right of the children to birthright Japanese nationality through their mother at a time when Japan's Nationality Law did not recognize the children born to a Japanese woman married to alien as Japanese.
The Nationality Law was revised in 1985, not 1987, hence three years before our "lengthy legal battle" -- from 1978 to 1988 -- was over. And it was revised for reasons having little to do with the lawsuits. No "rights" as such -- of parents or of children -- are recognized by Japan's Nationality Law.
Moreover, before the law became primarily ambilineal in 1985, it was secondarily matrilineal, and even jus soli, in addition to being primarily patrilineal. In almost every respect, its mix of ways that one could become a national of Japan were typical of the vast majority of nationality laws in the world, including those of Germany, from where the male progenitor of the Helm family in Japan originated. And there are plenty of arguable legal reasons why the same mix of ways to acquire a country's nationality through primarily ambilineal jus sanguinis and secondarily jus soli at time of birth -- and naturalization later in life -- continue to be the most common mix of nationality pathways in the world.
Sophistic equation of nationality with ethnicity
Johnson's observation that (1) Japan was "a virtually monoracial society" which had "enforced the exclusion of Westerners from its shores" until about 15 years before Helm's German ancestor arrived in Japan, ergo (2) "being a Japanese citizen has been, for all intents and purposes, the same thing as being ethnically Japanese" -- is, for all intents and purpose, a good example of bad logic. One could just as well, regardless of race, equate being "American" or German" or "Chinese" with being ethnically "American" or "German" or "Chinese".
What matters is whether Japan was legally obsessed with "race" -- and the answer is no. There were no racial or ethnic barriers in Japanese status laws -- no objection to "Westerners" becoming Japanese. Not a few did -- not not Helm.
Perhaps Johnson is thinking that Japan's status laws should have been jus soli, such as they were in the United States -- but such as they were not in her native Holland, or in Germany, or in most other countries in the world for all manner of reasons. But then why should Japan's status laws be constructed like those of population-hungry American states like the United States -- all of which were the products of aggressive European colonialism?
A privileged alien caste
Why, in any event, should Japan have introduced status laws that favored easy access to its nationality on the part of people who -- like Helm's great grandfather -- came to Japan as subjects of European powers with which Japan had signed unequal treaties? Subjects who lived in the extraterritorial foreign settlements established in treaty ports, and were generally not subjected to Japanese laws?
Leslie Helm's great grandfather, Julius Friedrich Wilhelm Helm (1840-1922), arrived in Japan in 1869, eight years after Japan and Prussia signed an unequal treaty of amity and commerce that permitted Prussia -- later Germany -- to establish legations in the extraterritorial foreign settlements which were built in the treaty ports that Japan had opened to accommodate American and other demands. In 1875 he married his Japanese housekeeper Komiya Hiro (1854-1904), who bore him 8 children.
Helm family not victims of Japanese law
That so many members of the Japan-born second generation of the Helm family became or remained foreigners is not entirely the fault of Japan's nationality laws. It was not Japan but Julius Helm who raised children not to identify as Japanese -- though of the 7 who survived, 5 were German, 1 (born in the United States) was American, and 1 was Japanese. Helm himself, and the six children who were not Japanese, could have become Japanese at some point but didn't.
Leslie Helm does not touch upon Japan's and Germany's status laws at the time, but then he doesn't need to. He dwells instead on pointing out that Helm and his descendants generally preferred to think of themselves as non-Japanese. By Leslie's own account, most family members, including himself, were uncomfortable about the idea of being Japanese. They preferred their exotic statuses as "Westerners" in Japan.
See Julius Friedrick Wilhelm Helm (1840-1922) in the Mixed-nationality couples (2):
Race-box classifications on public records in America article on the Konketsuji website.