TOKYO HIGH COURT, JUNE 12, 1980


DESIGNATION OF THE CASE

Judgment of June 12, 1980, Tokyo High Court, case No..(gyo-ko, administrative) 27 of 1977.
Appeal from Tokyo District Court, Judgment of April 27, 1977.

APPELLANT:
      Appellant: Lem King-Bing
      Attorney for Appellant: Hisao Arata, et al.
APPELLEE:
      Appellee: the State (Japanese Government)
      Attorney for Appellee: Takashi Yoshida



OPINION OF THE COURT

1. According to the evidence (omitted), it can be recognized that the appellant was born on September 5, 1929, as the third son of the Taiwanese parents (Lim Dai-Ying and Lim So-Sui), and is recorded in the family register of Taiwan, and that he had resided in Taiwan until he landed in Japan on July 3, 1962. There is no other evidence influencing the above recognition.

From the above confirmed facts, the appellant acquired Japanese nationality by birth.

2. The court will consider whether the appellant lost his Japanese nationality or not.

(1) In accordance with the Shimonoseki Treaty conducted on April 17, 1985, Taiwan and Penghu were ceded to Japan and the inhabitants there, with the exception of inhabitants who did not wish to acquire Japanese nationality and left Taiwan within two hears, acquired Japanese nationality (Article 5 of the Shimonoseki Treaty). Subsequently, by Imperial Ordinance No. 289 of 1899, the prior Nationality Law of Japan was enforced in Taiwan, but there was a sharp distinction made between Japanese and Taiwanese. For example, with regard to the family register, the Japanese were under application of the Family Register Law, but the family register for the Taiwanese was different from that for the Japanese (Statute No. 2 of 1927, Imperial Ordinance No. 361 of 1932 and Ordinance of the Government General of Taiwan No. 8 of 1933). . . . . .   As set forth above, under Japanese sovereignty Taiwan was one of the territories which had a different legal system.

(2) The Treaty of Peace with Japan provides in Article 2(b) that "Japan renounces all right, title and claim to Formosa and the Pescadores." The Treaty of Peace between Japan and the Republic of China provides to the same effect in Article 2 that "(i)t is recognized that under Article 2 of the Treaty of peace with Japan . . ., Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and Paracel Islands."

Both of the above treaties do not provide what state Taiwan and Penghu (hereinafter Taiwan), over which Japan waived territorial rights, should belong to . . . . .

However, at the date of the conclusion of the Treaty of Peace with Japan, there actually existed two political powers, the Government of the Republic of China and the Government of the People's Republic of China, which asserted their dominion over continental China and Taiwan, and there were differences of opinion among the Allies about the question of which political power should participate in the above mentioned treaty, with the result that neither political power become a signatory state of the treaty. On April 28, 1952, the date of the coming into force of the Treaty of Peace with Japan, Japan concluded with the Republic of China a bilateral treaty, the Treaty of Peace between Japan and Republic of China, which was based on Article 26 of the Treaty of Peace with Japan and recognized in Article 2 Japan's renunciation of all right, title and claim to Taiwan . . . . . .

However, in both the said treaty and the Treaty of Peace with Japan upon which the said treaty was based, it is not definitely provided when inhabitants who had Japanese nationality lost it. But, in due consideration of the purport of the Cairo Declaration, the Potsdam Proclamation and Articles 21 and 14(a)2(I)(a) of the Treaty of Peace with Japan, and so as not to bring about the grave situation in which the inhabitants who lost Japanese nationality become stateless persons, the court thinks it proper that at the date of the coming into force of the Treaty of Peace between Japan and the Republic of China (August 5, 1952), the said inhabitants lost their Japanese nationality.

(3) As to the case before us, Article 10 of the Treaty of Peace between Japan and the Republic of China provided that for the purposes of the said treaty nationals of the Republic of China should be deemed to include inhabitants of Taiwan; so it is apparent that the appellant, who was then an inhabitant of Taiwan, was regarded as her national or a person who had her nationality. In this instance, it is true that there exists limitation, for the purpose of the said treaty, but it is definitely provided that inhabitants of Taiwan should be regarded as nationals of the Republic of China. Therefore, as the natural precondition of the Japanese nationality or who had legal status as Taiwanese were deemed to renounce at least their Japanese nationality at the date of the coming into force of the said Treaty.

(4) It must be interpreted that persons who lost Japanese nationality in accordance with the Treaty of Peace between Japan and the Republic of China because of their legal status as Taiwanese are those who acquired legal status as Taiwanese under Japanese domestic law as a result of the cession of Taiwan and Penghu to Japan in accordance with the Shimonoseki Treaty, and their descendants. In concrete terms, those who lost Japanese nationality are those who were recorded in the family register of Taiwan and those who were formerly Japanese but were removed from the family register of Japan because they became married to or were adopted by Taiwanese before the date of the coming into force of the Treaty of Peace between Japan and the Republic of China . . . . . .

In the case before us, as stated above, the appellant had the legal status as a Taiwanese because his parents were both Taiwanese and be is recorded in the family register of Taiwan. Therefore, he lost his Japanese nationality at the date of the coming into force of the said Treaty.

(5) The Government of Japan recognized the Government of the People's Republic of China as the sole legal government of China in the Joint Communique of the Government of Japan and the Government of the People's Republic of China signed on September 29, 1972 (paragraph 2 of the said Joint Communique). This means disaffirmation of the Government of the Republic of China. As a result of this, it must be construed that the Treaty of Peace between Japan and the Republic of China should lose its significance of existence and come to an end through the normalization of diplomatic relation between Japan and the People's Republic of China based on the Joint Communique.

In paragraph 3 of the above Joint Communique, the government of Japan declared that it fully understood and respected the stand of the People's Republic of China that Taiwan was an inalienable part of the territory of the People's Republic of China and it firmly maintained its stand that Taiwan was not its territory. The purport of the former sentence of the above paragraph is different from that of the Treaty of Peace between Japan and the Republic of China; so the question arises whether the fact that the nationality of a part of the inhabitants in Taiwan was changed in accordance with the Treaty of Peace between Japan and the Republic of China is affected by the Joint Communique of the Government of Japan and the Government of the People's Republic of China: It is true that, as stated above, after the acceptance of the Potsdam Proclamation, Japan had recognized Taiwan as a territory of the Republic of China which had asserted her dominion over it; but in 1972 Japan changed her stand and understood and respected that Taiwan belonged to the People's Republic of China. There is a consistency in that Japan all this time has recognized Taiwan not to belong to herself. Japan recognized, in the Treaty of Peace between Japan and the Republic of China, that those of Taiwan who had had Japanese nationality should be deemed nationals of the Republic of China. This is a natural consequence of Taiwan ceasing to be a territory of Japan. Therefore, in consideration of domain, those inhabitants never regained Japanese nationality, setting aside the question whether or not those who lost Japanese nationality shall be deemed to acquire nationality of the People's Republic of China on the ground of the Joint Communique of the Government of Japan and the Government of People's Republic of China.

Furthermore, it is impossible to interpret paragraph 3 of the above Joint Communique to the effect that only the territory shall belong to the People's Republic of China with those of the inhabitants of the territory who formerly had Japanese nationality regaining Japanese nationality. To sum up, the above Joint Communique has no influence upon the Japanese nationality that the appellant has lost.

(6) In the Universal Declaration of Human Rights there is a provision that "no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality" (Article 15 (2)).

It is appropriate to construe "No one shall be arbitrarily deprived of his nationality" to mean "No one shall be deprived of his nationality without due process and due reasons." It is excessively severe and narrow to interpret "arbitrarily" as meaning "one-sidedly by the state." As stated above, the lost of Japanese nationality by the Taiwanese occurred as the change of nationality accompanying a cession of territory resulting from the war, and a change of nationality accompanying a cession of territory is ordinarily provided, explicitly or implicitly, in treaties. So it must be construed that the purport of the Universal Declaration of Human Rights does not prohibit such a comprehensive change of nationality as an arbitrary deprivation of nationality. Therefore, it is not contrary to the Universal Declaration of Human Rights that the Taiwanese lost their Japanese nationality in accordance with the Treaty of Peace between Japan and the Republic of China, because it was conducted with due process and due reasons.

Furthermore, in the Constitution of Japan it is provided that the conditions necessary for being a Japanese national shall be determined by law, but there is no provision in the Nationality Law about the change of nationality accompanying a cession of territory and, as stated above, there is no established customary international law. Therefore, those conditions are to be provided explicitly or implicitly by treaties.

In the case before us, Japan did not afford inhabitants of Taiwan an opportunity to select their nationality. But the Republic of China, or the ceder, as it is called, promulgated a law respecting the regaining of her nationality by the inhabitants in Taiwan.

. . . .

(8) The appellant testified in personal inquiry that, because the Republic of China was a political power of those who had came from the Chinese continent and did not represent the will of the Taiwanese, the Treaty of Peace between Japan and the Republic of China did not bind him -- the Taiwanese -- and he had as yet not lost his Japanese nationality. But the purport of the testimony of the appellant is, from the standpoint of Japan, a matter belonging to the domestic affairs of another state. The matter of nationality is generally determined uniformly by nature and cannot be varied according to the political doctrine or feeling of individuals. There is no need to dwell upon it. And there is no reason why Japan should have the duty of protecting the appellant as a Japanese national until the establishment of a political power supported by him.

3. The above is the reason of judgment of this court.   . . . .   As is apparent from the above judgment, among the claims of the appellant, the claim to confirm his Japanese nationality is unreasonable, and the claim for compensation for damage, which is based on his Japanese nationality, cannot be justified.


excerpted from --
    The Japanese Annual of International Law   [No. 25, 1982], p. 170 - 178