Eight former Japanese nationals, aged 30 to 80, men and women, six who have acquired Swiss or Liechtenstein nationality and two others who plan to obtain Swiss or French nationality, led by Hitoshi Nogawa, currently living in Europe, attempted to sue the Japan government arguing that the Nationality's Laws policies regarding acquiring additional citizenships was unconstitutional and also against the United Nation's Declaration of Human Rights.
The trial started on August 20th, 2020, and was ruled upon January 21st, 2021. After the unfavorable ruling, an appeal was attempted, but the high court affirmed the lower court's decision.
I suspect that the intent of the lawsuit was never to win, as the arguments it presented, while making for a good show for the press, were extremely weak from the perspective of both constitutional law and international law. Among the arguments they attempted to make:
They argued that the Nationality Law contradicts the second paragraph of Article 22 of the Constitution, which guarantees the right of expatriation.
Article 22 of the Japanese Constitution says:
Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.
(2) Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.
The problem with this argument is that the plaintiffs are living proof that Article 22 works: all of them literally exercised their Article 22 rights by moving to foreign countries in Europe and divested themselves of their Japanese nationality.
Nowhere is Article 22 does is say that you can keep your Japanese nationality.
Article 11 of the nationality law states that Japanese citizens who acquire non-Japanese nationality on their own instigation automatically lose their Japanese nationality, effectively banning dual citizenship.
“The clause forcefully depriving people of (Japanese) nationality violates the Constitution, which guarantees the right to pursue happiness and equality under the law”
The plaintiffs argued that the Nationality Law violates Article 13 of the Japanese constitution, which says:
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.
This is also pretty weak. The phrase "pursuit of happiness" was commonly known from United States Declaration of Independence, and since that document was written,
five other constitutions of the world have adopted that phrase:
- Belize
- Haiti
- Namibia
- Seychelles
- and Japan
Ironically, the phrase does not appear in the U.S. Constitution.
Obviously, if you were to take the phrase "pursuit of happiness" literally, one could argue that it would allow you the right to do anything, so obviously constitutional scholars, and the original founders of the United States, meant.
... at the time of the Declaration's composition, "the pursuit of happiness" did not mean chasing or seeking it, but actually practicing happiness, the experience of happiness — not just chasing it but actually catching it, you might say.
This is demonstrated by documents that are contemporary with the Declaration, but also by the Declaration itself, in the continuation of the same sentence that contains "the pursuit of happiness" phrase. The continuation speaks of effecting people's safety and happiness.
Additionally, the clause of equality in the same Article works against their argument, as the ability to possess more than one nationality is not something just anybody can do (and some nations restrict nationality according to race or creed, making the acquisition of its nationality impossible to most), so the ability to possess multiple nationalities is not something that can be obtained equally by anybody, as compared to possessing just one nationality, which everybody is guaranteed to equally have.
The Nationality Law "has not been revised once since before World War II"
This claim by Nogawa is simply false. While it is true that the constitutional definition of what a Japanese national (pre-WW2: "subject") is has not changed from the Meiji Constitution:
Meiji (pre-WW2) Constitution:
Article 18. The conditions necessary for being a Japanese subject shall be determined by law.
Modern Constitution:
Article 10. The conditions necessary for being a Japanese national shall be determined by law.
The actual Nationality Law underneath of it has changed numerous times, often in response to changing views on rights (in particular, equality of the sexes). In particular, the biggest revision was in 1985, which primarily did these things:
- abolished the patrilineal descent requirement for acquisition of Japanese nationality at birth, so a child could inherit nationality from not just the father both the mother — in response to The United Nations (UN) Convention on the Elimination of Discrimination against Women (CEDAW).
- created the "Choice of Nationality" requirement that stipulates that adults (age 20 in Japan) who involuntarily acquire more than one nationality must choose one nationality within two years, which attempted to fix a loophole.
- defined that when a born in Japan child's nationality cannot be determined (because both parents are stateless or the parents are unknown, dead, or missing), that child shall receive Japanese nationality according to jus soli -- in response to the United Nations (UN) Convention on the Reduction of Statelessness
The Universal Declaration of Human Rights provides that "no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
The full text of the Article 15 of the UHDR (Universal Human Rights Declaration) of the UN reads:
Article 15.
- Everyone has the right to a nationality.
- No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 15 was created in response to a huge problem that existed during the Great Wars, after many people's countries ceased to exist and refugees suddenly became stateless, without a country they could call home and would protect them.
Article 15 is meant to guarantee that no human has
zero nationalities: note that in the first English version, the words "a" and "his" nationality infer that the Article's intent is to refer to a single nationality. Indeed, when the UHDR was created, the ability to possess multiple nationalities was a very rare thing and illegal in many countries.
The UHDR has been translated into over 500 languages, and in many other languages, including Japanese, it's clear that it's intent was to infer that possessing a single nationality is a right, but does not say that possessing more than one nationality is also a right:
第15条
- すべて人は、国籍をもつ権利を有する。
- 何人も、ほしいままにその国籍を奪われ、又はその国籍を変更する権利を否認されることはない。
As of 2019, around 150, or 75% of United Nations member states, permit multiple nationalities.
This statement is deceptive in that while it is technically true, what is actually true is that the majority of the countries do not
unconditionally accept dual nationality, but most countries accept dual nationality in cases where it cannot be avoided in order to comply with UN's human rights declaration that says you can
arbitrarily strip someone of a citizenship.
In other words, most countries who accept UN rulings (INCLUDING Japan) will not deprive a person of their nationality if another country assigns an additional nationality to them involuntarily, or they are unable to remove that nationality (ex. the country has no procedure for giving up nationality).
Even Japan allows dual nationality in cases where giving up a nationality is practically impossible. Countries who prohibit or make it close to impossible to give up their citizenship are in violation of The United Nations Universal Declaration of Human Rights.
Many countries who have recently allowed dual nationality, for example, only do so in very limited and special cases. For example, South Korea recently "allowed" dual citizenship, but only for these special cases:
- unintentionally gained non-Korean citizenship by birth
- non-Korean people who marry South Korean citizens
- foreign Korean residents 65 or older who want to revive their Korean citizenship
- exceptional individuals who in the eyes of the South Korean government, would bring outstanding contributions to the country (internationally recognized and renowned athletes, scientists, etc.)
“Asking people to choose between Japan and their other country is legally asking them to stop acknowledging half of their identity. It denies the importance of the other culture and community of which they are a part”
In most progressive democracies, nationality laws are intentionally written to be race and culture blind. Nationality is supposed to be disconnected from one's race, creed, or cultural identity in order to promote equality among its people.
The UN actually makes a special exception in its declarations and conventions regarding ethnic and racial equality to allow for countries to discriminate on the basis of race — to allow for cases where some countries are created to protect a certain race, ethnicity, or religion.
For example, Liberia does not allow white people or Caucasians to obtain citizenship precising because the country was founded as a settlement of the American Colonization Society (ACS), who believed black people would face better chances for freedom and prosperity in Africa than in the United States.
Other countries give preference to certain religions. For example, Israel gives special preference to Jews regarding their citizenship.
However, most countries, wanting to avoid the problematic past where some countries associated citizenship with a certain racial or ethnic identity (ex. the Third Reich of Nazi Germany), explicitly avoid linking their nationality to a cultural or ethnic "identity".
Japan makes no legal requirements of its citizens to be of a certain race, ethnicity, creed, or religion.
In Japan, just like most advanced democracies, one's nationality is simply a formal link to a government and its unique laws and rights (and more importantly, responsibilities).
The idea that possessing Japanese nationality is a link to one's cultural or ethnic "identity" or parents is an emotional argument but not a legal or correct one.
However, because it is true that the vast majority of people with Japanese nationality are of one culture / ethnicity & phenotype, many overseas mixed parents and their children desire it as a marker or "proof" of part of their cultural identity or connection to both their parents, when in reality the possession or non-possession of Japanese nationality does not validate any of these things.
THE RULING
Dual citizenship "could cause conflict in the rights and obligations between countries, as well as between the individual and the state," said Presiding Judge Hideaki Mori.
Judge Mori is referring to the problem of "forum shopping", which is the problem where an individual or family could unintentionally, or worse, intentionally, run into the cases where the two laws and governments that a dual national is connected to, and their legal obligations to both, are in conflict with each other.
Many people think that if you're no longer on the soil of a country, its laws no longer apply to you.
This is not true when the laws of a country are one that you're a citizen of.
Some obvious and not so obvious examples:
- If a sex offender goes to a country when child prostitution laws are weak, nonexistent, or unenforced, and then commits a sex crime on that country's soil, that person can still be prosecuted by the government of a country they're a citizen of, even though it did not occur on its soil and even if the activity is considered legal in some countries. And even if they never return back to the country of their citizenship, their country can utilize INTERPOL and other legal mechanisms
- If a dual national possessing Japanese nationality engages with controlled substances overseas in a country where it is legal (ex. marijuana laws in Canada, some American States and Europe), that dual national may have violated Japan's drug laws. And in theory (though I'm doubtful this would happen), if that dual national should travel to a third country (or State within America) where drug laws are similar to Japan, Japan could extradite that person for prosecution in Japan under its drug laws.
- If a U.S. Citizen, who is a permanent resident in Japan, violates U.S. tax laws while living in Japan, the United States can extradite this person relatively easily to America for prosecution. Japan and the United States have a bilateral extradition treaty, in effect since 1976, that lowers the bar for extradition for white collar tax related crimes as well as other crimes.
While it may seem hard to believe, there is no universal procedure for what to do when an individual is tied to two nationalities and their actions or obligations to one of their countries contradict one of their other country's laws. As a general rule of thumb, usually the country whose soil you are currently on prevails. But not always. And things get more dicey if you break the law of one of your countries and you're in a third separate country.
This is why many countries that recognize dual-citizenship don't actually encourage it. The United States' official position of multiple citizenships reflects the above dilemma:
While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government does not endorse dual nationality as a matter of policy because of the problems which it may cause. Claims of other countries upon dual-national U.S. Citizens often place them in situations where their obligations to one country are in conflict with the laws of the other.
One often reads this and thinks, "surely all of the above are edge cases and very few people ever end up in a situation where laws will conflict."
But in fact, there is one very common area where laws do conflict: family law. As in, divorce and child custody.
Most western nations believe that in the case of a divorce with children, the state must step in and force joint custody. This sometimes denies either the man or the woman, whom often strongly despises the other, from having a true clean break from their spouse they wish to separate from — the government forces them to cooperate regarding child rearing sometimes for almost two decades until the child is grown. Western governments believe this is the best for the child to legally force the parents to cooperate.
Japanese family law, though, decides on one parent to have custody (often the woman, but not always). Joint child rearing post divorce is possible, but it is left to the discretion and choice of the woman (or sometimes the man), and is arranged privately without government enforcement.
In Japan, many women (and some men) with custody use that freedom to choose to raise their child as a single parent after an acrimonious divorce.
Whether or not you agree with the Japanese way is not the point. There are Japanese that disagree with Japanese family law too. However, Japanese feminists point out that Japanese family law gives them more power than western law — allowing them to remove a deplorable man (whom in the eyes of a western court, might still be adequate enough to share child raising) from their life while still being able to raise a child.
The point is family law is one area where Japan (and many other non-Western nations) are very different from western countries, and divorce is unfortunately not uncommon.
There have been many famous international incidents involving high profile acrimonious divorces between international couples in the past. Sometimes, one of the parents, knowing the difference between the family laws of the Japan and their country, have attempted to gain an advantage over the other parent by encouraging the other parent to change the child's primary resident domicile, and thus legislative domain, prior to seeking a divorce.
Although the Hague Convention has attempted to define whose legal system should prevail during a divorce with children, scorned spouses, knowing that the end is approaching, will often try to forum shop prior to formally filing for divorce, hoping to manipulate the law to their advantage (by attempting to move the family, using career or work or another excuse as a pretext).
Leveraging or manipulating the differences between two different conflicting sets of laws for legal advantage over another is known pejoratively as "forum shopping."
Of course, it is possible to "forum shop" even if you do not possess two nationalities. But if one or both of the parents possess multiple nationalities, or the children do, there are sometimes serious disagreements as to whose legal system should prevail.