The Sino-Japanese Peace Treaty and the Chinese residents in Japan—Legal status problem under the 1952 regime

ABSTRACT

The Sino – Japanese Peace Treaty signed in April 1952 not only set the basic framework for diplomatic relations between China, Japan, and Taiwan until 1972, but was also significant in substantially determining the legal status of Chinese residents in Japan during the same period. Subsequently, this paper analyzes both the legislative process in Japan leading up to the Sino – Japanese Peace Treaty and the process of diplomatic negotiations between Japan and China and identifies the following points. In the process of legislating the Immigration Control Ordinance, the Japanese government, while recognizing that Chinese mainlanders in Japan were Chinese nationals, considered them to be outside the legal jurisdiction of the Republic of China (R.O.C.) government, and while recognizing the jurisdiction of the R.O.C. government over Formosans in Japan to a certain extent, interpreted “the ultimate nationality of Taiwanese people has not been determined” from the standpoint that the legal status of Taiwan was undetermined. The R.O.C. government was forced to accept the Japanese government’s treatment regarding the legal status of Chinese residents in Japan because it was unable to have its sovereignty over Taiwan and the Penghu Islands clearly stated in the articles of the Sino – Japanese Peace Treaty out of consideration for the United States, which acted as an intermediary in the negotiations of the treaty.

KEYWORDS:

• Sino-Japanese Peace Treaty
• Chinese residents in Japan
• 1952 regime
• legal status problem

1. Introduction

In postwar Japan, Formosans and Chinese mainlanders in Japan came to be understood as “Chinese” through the temporary registration of Chinese people in Japan conducted by the Chinese Mission in Japan (hereinafter referred to as the “Chinese Mission”) from July 1946. At that time, the Chinese Mission, GHQ/SCAP (hereinafter referred to as SCAP), and the Japanese government agreed to regard Formosans in Japan as Chinese, or United Nations nationals, for criminal jurisdiction purposes. However, regarding nationality attribution for Formosans in Japan, the SCAP and the Japanese government argued that “the official change of nationality had to wait for the peace treaty,” while the Republic of China’s (R.O.C.) government argued that the capture of Taiwan had restored Chinese nationality to the Taiwanese people according to Chinese domestic law. The two sides could not come to a compromise and a final decision about attributing nationality was suspended at this point.¹

Therefore, the issue of the official change in attributing nationality to Formosans in Japan should have been placed on the agenda between China and Japan when the peace treaty was signed. However, by the time treaty negotiations began in the spring of 1952, there were unforeseen changes in the international situation. First, the R.O.C. government was by the Communist Party during the civil war and withdrew to Taiwan in 1949, and second, due to an arrangement between the United States and Britain, the R.O.C. government was excluded from the peace treaty conference, along with the communist government in Beijing (the People’s Republic of China [P.R.C.] government). A peace treaty was later signed with Japan in the form of a bilateral treaty.

How, then, did these unanticipated changes in the international situation affect nationality attribution for Formosans in Japan through the signing of the Sino – Japanese Peace Treaty? Moreover, how did the Japanese and Chinese governments come to define the status and treatment of Chinese residents in Japan through the treaty after Japan regained its independence? These are questions that cannot be avoided when trying to understand the historical circumstances of Chinese residents in Japan after the war.

These issues have been neglected in existing literature. For instance, He Yi-lin’s research points out that after Japan regained independence, Formosans in Japan, like Koreans in Japan, fell under “Law 126-2-6” regarding their residence status and were placed in a subordinate social position in the country.² However, as the Sino – Japanese Peace Treaty was concluded on the same day that the Peace Treaty with Japan was implemented, Formosans and Koreans in Japan cannot be treated as the same in terms of the legal system.

A series of studies by Yasuaki Onuma discusses the legal status of people from former colonies from the Japanese legal system perspective. Onuma clarified that Japan’s immigration legislation after regaining independence began under the “1952 System,” which consisted of the Immigration Control Ordinance, the Alien Registration Law, and Act No. 126, and that under this system, Formosans and Koreans in Japan lost their Japanese citizenship based on the Peace Treaty, regardless of their wishes.³ However, Onuma’s research focuses predominantly on Koreans in Japan only, thus neglecting Formosans in Japan and the Sino – Japanese Peace Treaty that was the basis for the renouncement of their nationality.

In addition, the Sino – Japanese Peace Treaty has been the subject of analysis in the debate over the issue of Taiwan’s legal status. For example, studies by Peng Ming-min and Ng Chiau-tong made the argument that the Sino – Japanese Peace Treaty did not determine the attribution of Taiwan’s Penghu Islands to the R.O.C., while in contrast, a study by Tzu-Chin Huang did consider as an argument for attributing sovereignty to the R.O.C.⁴ Although these studies interpret Article 10 of the Sino – Japanese Peace Treaty regarding the nationality of Taiwanese residents (in this paper, this Article and its drafts are referred to as the “Nationality Clause”) as a key issue, they do not discuss how the Nationality Clause affected the treatment of Formosans and mainlanders in Japan.

Based on these previous studies, this paper discusses the issue Chinese residents’ legal status in Japan before and after it regained its independence from the following two perspectives. The first is the aspect of Japan’s domestic legal system and the issue of how Chinese residents in Japan were positioned in the 1952 system. In particular, we will examine how the Immigration Control Ordinance promulgated in October was applied to Chinese residents in Japan in the process of becoming Act No. 126 on April 28 1952, and how Chinese residents in Japan reacted to it. The second aspect relates to how the Sino – Japanese Peace Treaty examines, interprets, and discusses the legal status of Chinese residents in Japan leading up to its signing. Consequently, this paper will clarify how Chinese residents in Japan were legally treated in the process leading up to the 1952 system.

As a primary source, we used the archives of the Ministry of Foreign Affairs of the R.O.C. held by the Academia Historica and the Institute of Modern History Archives Academia Sinica, diplomatic records and Diet proceedings held by the Diplomatic Archives of the Ministry of Foreign Affairs of Japan, as well as overseas Chinese newspapers and personal documents held by the Kobe Overseas Chinese History Museum.

2. Reactions of Chinese residents in Japan to the immigration control ordinance

2.1. Immigration control ordinance

On October 4 1951, the Immigration Control Ordinance (Immigration Ordinance) was promulgated. This was enacted as the “General Law on Immigration Control Regulating Personal and Material Exchange with Foreign Countries” in Japan after the peace treaty and independence.⁵ It is a Cabinet Order that stipulates a series of procedures for the entry and landing, stay and departure, and deportation of foreign citizens with regard to human movement.⁶

From the perspective of the occupation policy, the enactment of the order was part of the process of gradually transferring the immigration control affairs that had previously been in the hands of the SCAP to the Japanese government. Since June 1949, SCAP had issued a series of memoranda to the Japanese government, delegating authority over immigration affairs to them and developing the structure of the immigration bureau. The enactment of the Immigration Control Ordinance was the final step in this process.

In establishing the above-mentioned immigration control system, the Japanese government and SCAP intended to control and suppress communist Koreans in Japan,⁷ but the two sides did not agree on the specific measures needed to do so. In July 1951, the Japanese government submitted a draft Immigration Control Ordinance with supplementary provisions that would deem Koreans and Formosans in Japan as foreigners and allow for their deportation. However, SCAP demanded that the Japanese government delete these supplementary provisions because it did not want to be held morally responsible for their repatriation.⁸

As a result, the Japanese government promulgated the Immigration Ordinance after deleting the supplementary provisions, and Korean and Formosan residents in Japan were not subject to the Ordinance when it went into effect in November 1951. Nevertheless, the enactment of the Ordinance caused strong anxiety among Chinese and Korean residents in Japan regarding their future legal status. They expected that after Japan’s independence, they would be subject to the Immigration Control Ordinance in any case. The following examines the perceptions of Chinese residents in Japan toward the Immigration Control Ordinance and the opposition movement based on these perceptions.

2.2. Campaign against the immigration control ordinance

When the Immigration Control Ordinance was first promulgated, Chinese residents in Japan were alarmed that the deportation provisions contained in the Ordinance would also apply to those living in poverty. This is because the Ordinance included “the poor, vagrants, disabled persons, and others who are a burden on the national or local government in their daily lives” as subject to deportation. In addition, because the deportation could be carried out through a single administrative measure without going through the judicial process, there was growing criticism of the Immigration Control Ordinance in the discourse of Chinese residents in Japan. Opposition by Chinese groups in Japan began around the end of 1951, and by December, Koreans living in Japan had also joined the movement. On December 26, a meeting was held by members of various opposition parties and representatives from organizations for Chinese and Korean residents in Japan,⁹ and it was announced that the “International Joint Task Force on the Immigration Control Ordinance” had been established.¹⁰

From the document titled “Written Opinion on the Immigration Control Ordinance” (the written opinion), which was drafted in the name of the committee that was formed and sent to the relevant government agencies, we can parse Chinese and Korean residents’ general perception of the threat relating to the Immigration Control Ordinance in Japan at that time.¹¹

The criticisms of the Immigration Ordinance in the written opinion are all focused on the following six points related to deportation. First, the Immigration Ordinance does not distinguish Chinese and Korean residents in Japan from “temporary visitors.” They were registered under the Alien Registration Ordinance promulgated in 1947, and therefore, have a vested right to manage their residency as foreigners. There was criticism about the loss of these rights through the application of the Immigration Control Ordinance.

Second, it is difficult to obtain permanent resident status. According to the Immigration Ordinance, Chinese and Korean residents in Japan had to apply for permanent resident status again, but the provision that they must be “of good conduct and possess qualifications or skills sufficient to lead an independent life” (Article 22) was very vague and was criticized as making it difficult for Chinese and Korean residents to continue living in Japan.

Third, even if they passed the examination for permanent resident status, under Article 24, they were easily subject to deportation. Fourth, it criticized various provisions of the Immigration Ordinance regarding deportation procedures as a “deprivation of fundamental human rights for foreign nationals and a violation of the Constitution of Japan.” The fifth criticism was of the provisions of Article 62, which encourages informing officials of foreigners who violate the Immigration Ordinance.

Finally, the sixth point of criticism was the infringement on the “freedom to choose one’s nationality.” The written opinion explains this point as follows.¹²

Even if Korea is divided into two governments, North and South, and China has two governments, the choice of which one to choose is up to the individual and cannot be forced by the Japanese government, nor can they be repatriated to a “country” recognized by the Japanese government. The attribution of nationality is based on the nationality law of the home country, and since diplomatic relations with Korea or China had not been normalized and the attribution of nationality remained unresolved, the Japanese government could not simply consult politically with a certain government to recognize the nationality of a resident and deport him or her to that government.

As of November 27, when the written opinion was drafted, there was still no official decision on whether the Japanese government would enter into treaty negotiations with the R.O.C. or P.R.C. governments, but it was easily foreseeable that the Yoshida administration of the time would choose the R.O.C. government as its diplomatic negotiations partner. What the leftist Chinese residents in Japan feared most was that the Japanese government would establish diplomatic relations with the R.O.C. government and deport them to Taiwan due to political arbitrariness.

Left-wing Chinese residents became active in lobbying members of the National Diet from the end of 1951. They targeted the ruling Liberal Party, the conservative opposition parties, and the liberal opposition parties that had taken a position against the Immigration Control Ordinance.¹³ According to the recollections of Wu Xiuzhu, a full-time staff member of the Tokyo Chinese Association, the association was particularly concerned about two issues: deportation and residency status.¹⁴

Simultaneously, the opposition parties, who had been approached by Chinese and Korean residents in Japan, were formulating measures to deal with the bill after it was submitted. For example, the Socialist Party’s special committee, chaired by Shozo Oya and consisting of 14 Diet members from both houses of the Diet, had decided to seek special measures or amendments to nine articles.¹⁵ These included granting permanent residency rights to “foreign residents” from before September 2 1945, avoiding the mandatory determination of nationality through Japan – Korea talks, and modifying provisions for deportation destinations.

Thus, the Immigration Control Ordinance was strongly opposed by Chinese and Korean residents in Japan, and by the opposition parties that had been lobbied by both. However, Chinese and Korean residents’ legal treatment in Japan was also directly linked to Japan’s diplomatic relations after it regained independence. In other words, the deliberations in the Diet on the Immigration Control Ordinance became a battle between the government, which was preparing for its response in the Diet while simultaneously promoting negotiations on the Japan – China Treaty and Japan – Korea talks, and the opposition, which was anticipating such moves by the government.

3. Diet deliberations on the immigration control ordinance

3.1. Immigration control bill

On March 20 1952, the government submitted a bill to the Diet¹⁶ that extended the Immigration Control Ordinance, with the Alien Registration Bill. Article 2 of the Immigration Control Bill stipulates “the period during which a foreigner who is currently residing in Japan at the time of the enforcement of the law may continue to reside in Japan without residence status.” In this transitional provision clause, there were two articles related to Chinese residents in Japan. Article 2, Section 1, Paragraph 2, which applied to mainlanders, and Article 2, Section 6, which applied to Formosans. For the former, it was stipulated that people should apply for residence status under Article 22 of the Immigration Control Ordinance within six months of the enforcement of the law, while for the latter, “until the status of residence and period of stay of the person are determined as separately provided by law, the person may continue to reside in Japan without residence status.¹⁷ However, this only stipulated that until the result of the Japan – Korea talks determined the treatment of Korean residents in Japan, and in conjunction, Formosans in Japan, they need not apply for residence status, and did not mean that they were exempt from deportation provisions of Article 24 of the same order or the penalties stipulated in the Alien Registration Bill. In other words, the concerns that Chinese and Korean residents in Japan had about the Immigration Control Ordinance were not resolved in any way by the Immigration Control Bill.

The aforementioned Immigration Control Bill and Alien Registration Bill were placed on the agenda together at the House of Representatives’ 12th Foreign Affairs Committee meeting on March 25 and were also submitted for joint examination by the Foreign Affairs Committee and the Legal Affairs Committee.¹⁸ From then until the day the Treaty of Peace with Japan came into effect, intensive deliberations were held in the committees of both houses of the Diet, during which not only opposition party members but also some members of the ruling party criticized the Immigration Ordinance. As a result, the Immigration Control Bill was passed almost as originally proposed on April 28, the day the Peace Treaty with Japan came into force and was enacted and promulgated as Act No. 126 of 1952.

However, this is not to say that the discussion of the bill was entirely without meaning. The government’s responses, recorded by stenographers, were binding on the government’s administration of the law.¹⁹ The following discussion will focus on the questions and responses regarding the three issues that directly affected the legal treatment of Chinese and Korean residents in Japan: “nationality,” “residence,” and “deportation.”

3.2. Nationality, residence, deportation

During the committee deliberations leading up to the passage of the bill, Hyakuro Hayashi of the Japanese Communist Party was the most active in pressuring the government regarding the legal status of Chinese residents in Japan.

During the deliberations of the 12th Foreign Affairs Committee on March 25, He noted that it is difficult to understand the Japanese government’s desire to establish diplomatic relations with “ghost regimes in exile” such as Chiang Kai-shek and Syngman Rhee, and even if one were to take the government’s position, there are the following issues regarding the nationality of Chinese and Koreans residents in Japan.

Were Koreans, Formosans or Chinese residing in Japan who would lose their Japanese citizenship in the future, guaranteed the freedom to select the nationality of the P.R.C. or the People’s Republic of Korea, neither of which had diplomatic relations with Japan? If they refused to do so, would they be subject to deportation? If they were to be deported, where would they be sent to?²⁰

In response, Kanichiro Ishihara, Parliamentary Vice-Minister of the Ministry of Foreign Affairs, stated that “what happens to Koreans living in Japan who renounce their Japanese nationality when the peace treaty comes into effect is a domestic matter for the other country, the Republic of Korea,” and rejected the very idea of having them choose either North or South Korean nationality.²¹ At the time, the Japanese government assumed that it was a given that Korean residents in Japan would acquire the nationality of Republic of Korea, and that there would be no choice of nationality.

The Japanese government, however, had a contrasting view of Chinese residents in Japan. At the first meeting of the joint examination committee the following day, the 26th, Hajime Suzuki (Commissioner of the Immigration Bureau) avoided mentioning the option of “Chinese nationality” for Chinese mainlander and Formosan residents in Japan but acknowledged the existence of people who cannot receive nationality certificates from the R.O.C. government and clearly stated that they would be allowed to stay in Japan. This clearly opposed the stance of not allowing Koreans in Japan to stay in Japan under any other status than that of the Republic of Korea in the future.

Although opposition party members questioned the reason for this stance, the Japanese government did not give a straight answer to this question. In the committee deliberations that followed, the Japanese government repeatedly stated that specific measures would be taken for Chinese and Korean residents in Japan according to separate “expedient measures,” and continued to take the position that the legal status of the two groups was a separate issue.

During the March 28 deliberations, questions were asked about Article 24, which had been criticized since the early stages of the deliberations, and which addresses deportation.²² Tomomi Narita (Left wing of the Japan Socialist Party), after confirming that Koreans and Formosans in Japan do not need to have their residence status recognized as stipulated in Article 22 of the Immigration Ordinance, then asked the government whether the deportation provision applied to them. Accordingly, Hajime Suzuki stated that even those who fall under Article 2, Paragraph 6 are subject to the general application of the said Article as long as they are foreigners, but “we do not operationally do such things as deport them before a special law is made.”²³

The next question was on the recognition of nationality and alien registration procedures for Formosans in Japan. The government, in response to a question from Naokichi Kitazawa, a member of the ruling Liberal Party,²⁴ stated that even Formosans living in Japan can switch as long as they have an alien registration card, and clearly stated here that they will be treated the same as mainlanders. However, when Kitazawa pressed on to clarify whether “Formosans in Japan should be recognized as having Chinese nationality or as having no nationality and stateless,” Kijiro Miyake, a member of the government committee, avoided giving a direct answer, stating, “we will clarify this point in the current negotiations with the Taiwanese government.²⁵

In the ensuing deliberations, Hisao Kuroda (Labor-Farmer Party) raised the issue of residency status for Chinese mainlanders in Japan as follows.²⁶ Unlike Koreans and Formosans in Japan who were exempt from applying for residence status under Article 2, Paragraph 6, Chinese mainlanders had to apply for residence status under Article 22 of the Immigration Ordinance, but what did “good conduct” mean in an application for permanent residence under Paragraph 2 of the same? According to Hajime Suzuki, this meant sufficient “proof that the person has never committed a crime or been punished for a crime” and that “even if a person is unable to submit a certificate of nationality, other documents can be used to proceed with the process.²⁷

The Japanese government also used different standards when it came to deporting Koreans and Chinese residents of Japan. Article 53, Paragraph 1 of the Immigration Ordinance stipulates that “a person subject to deportation shall be repatriated to the country of his/her nationality or citizenship” and Paragraph 2 stipulates the destination of repatriation under Paragraph 6 “in the event that the person cannot be repatriated to the country set forth in the preceding paragraph.” In response to Kuroda’s question, the Japanese government stated clearly that even Koreans who support North Korea “will be deported to the South Korean government in the event of deportation.”²⁸

As for the issue of where to repatriate those from mainland China, which was raised by Hyakuro Hayashi, the government replied that since there was no way to repatriate them to mainland China, they would have to be allowed to stay in Japan through temporary release.²⁹ It is clear from this that the Japanese government intentionally avoided taking the measure of uniformly repatriating those from the mainland to Taiwan as citizens of the R.O.C. After deliberations in the House of Representatives, the Alien Registration Bill and the Immigration Control Bill were passed on March 29, overcoming objections from the opposition parties.³⁰

Both bills were then referred to the House of Councillors, which began deliberations on April 6. The main question was still the issue of nationality, residency, and the deportation of Chinese and Korean residents in Japan. The content of the deliberations on these issues was generally the same as in the House of Representatives, but on April 26, in the final stages of the deliberations, Hajime Suzuki stated, “I don’t think any practical problems will arise in terms of Formosans in Japan being sent back to Taiwan, where there is a Chinese government.”³¹ From this, it is clear that the Japanese government did not rule out the possibility of deporting Formosans living in Japan to Taiwan. As the Nationality Clause of the Japan – China treaty negotiations had been finalized at this point, it is believed that this response was made to be consistent with the government’s interpretation of the clause.

Although opposition continued after this, the Alien Registration Bill and the Immigration Control Bill were passed by the House of Councillors Foreign Affairs Committee on April 28, the last day of the session.³² However, how this law was to be administered depended on the treaty signed between the Japanese and Chinese governments and their interpretation of its articles. The next section will examine the negotiation process of the Sino – Japanese Peace Treaty regarding the Nationality Clause and the related deliberations on the ratification of the treaty in the Diet.

4. Nationality clause in the negotiations for the Sino – Japanese Peace Treaty and the ratification deliberations of the treaty

4.1. Article 10 of the Sino – Japanese Peace Treaty

As is clear from the deliberative process of immigration laws, after regaining independence, the Japanese government had a policy of recognizing Chinese residents’ legal status in Japan as foreigners regardless of the R.O.C government’s position on the issue, although there were differences in commitment between mainlanders and Formosans in Japan. Simultaneously, however, during the deliberation stage of the bill, the government went as far as to leave the status of Chinese residents in Japan ambiguous – as foreigners with any nationality, and in particular, the Formosans’ nationality in Japan was dependent on the outcome of the Sino – Japanese treaty.

How then did the Japanese and R.O.C. governments decide who belonged to them? Article 10 of the Sino – Japanese Peace Treaty, signed on April 28 1952, provides as follows.

ARTICLE X

For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendants who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores); and juridical persons of the Republic of China shall be deemed to include all those registered under the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores).

At first glance, this article reads as though it allows Formosans in Japan to be included among citizens of the R.O.C. In fact, however, the Japanese government interpreted the Sino – Japanese Peace Treaty, which included this article, as “not ultimately recognizing Formosans as having acquired Chinese nationality,”³³ and established treatment under domestic law accordingly. This interpretation was clearly at odds with the R.O.C. government’s interests, but despite this, the R.O.C. government never formally challenged the Japanese government.

Why was such an interpretation established and why was it not a pending issue between the two countries? Furthermore, how was the legal status of mainlanders in Japan positioned in this treaty? To clarify these points, it is necessary to examine both the process of enactment of the articles in the treaty negotiations and the ratification deliberations, but before doing so, let us review the process that led up to the start of treaty negotiations between the two countries.

4.2. Process leading to the negotiation of the Sino – Japanese Peace Treaty

The R.O.C. was a victor of World War II, but after losing the Chinese Civil War, the central government withdrew to Taiwan at the end of 1949. The United States who had lost confidence in the Kuomintang (KMT) government, adopted a policy of sidelining the Taiwan issue, and sought to build a relationship with the Beijing government.³⁴ However, when the Sino – Soviet Mutual Defense Alliance Treaty was signed in February 1950, with the United States as the virtual enemy, and the Korean War broke out in June of the same year, the United States dispatched the Seventh Fleet and declared neutralization of the Taiwan Strait to ensure the safety of the Pacific region and American forces. This prolonged the life of the R.O.C. government, and thereafter, “two Chinas” existed side by side on both sides of the Taiwan Strait.

In support of the R.O.C. government, the United States believed that the future status of Taiwan should be decided by the United Nations in order to maintain the neutrality of the Taiwan Strait (the theory of freezing Taiwan’s legal status). The R.O.C. government protested that Taiwan and the Penghu Islands were territories that had been returned to the R.O.C., but the United States urged it not to take a stance against the United States’ claim, saying that it was “to maintain the status of the R.O.C. government.”³⁵ Initially, the United States intended to invite the R.O.C. government to the Peace Treaty with Japan, but after reaching an agreement with the United Kingdom, which wanted the P.R.C. to be invited, a compromise was reached in which both sides would not be invited to the peace conference and that the decision to begin diplomatic negotiations with either Chinas would be left to Japan after it regained independence.³⁶

Consequently, the Treaty of Peace with Japan, which was signed without either the P.R.C. or R.O.C. governments, only stated that Japan “renounces all right, title and claim to Formosa and the Pescadores,”³⁷ [Article 2 (b)] and the attribution of sovereignty remained unclear.

Meanwhile, despite the aforementioned compromise between the United States and the United Kingdom, U.S. diplomat John F. Dulles pushed for a bilateral treaty between Japan and the R.O.C. to prevent Japan from developing ties with Beijing and to get the U.S. Senate, which was concerned about Japan’s proximity to China, to ratify the Treaty of Peace with Japan.³⁸ Simultaneously, the United States strongly urged the R.O.C. government to limit the scope of the treaty to the territory currently controlled by the R.O.C. government. This was also an opportunity for the United States to reconcile its views with those of the United Kingdom and to persuade the Japanese government, which had been reluctant to conclude a bilateral treaty with the R.O.C. government. In response to a strong request from the United States, the R.O.C. government presented the United States with two draft proposals the end of September.³⁹ One of these proposals, slightly reworded, was incorporated as part of the draft “Yoshida Letter” that Dulles presented to the Japanese side when he came to Japan as an envoy in December.⁴⁰ Although the Yoshida Letter is formally a letter in which Shigeru Yoshida informs Dulles that he has no intention of restoring diplomatic relations with the P.R.C. government and that he is willing to initiate diplomatic negotiations with the R.O.C. government, the person who actually drafted the document was Dulles himself. The final language regarding the scope of the treaty is as follows.

The terms of such bilateral treaty shall, in respect of the Republic of China, be applicable to all territories which are now, or which may hereafter be, under the control of the National Government of the Republic of China.

This Letter led to the signing of the bilateral treaty between Japan and the R.O.C. with a limited scope of application by default. However, the Japanese government, especially officials from the Ministry of Foreign Affairs, remained reluctant to restore diplomatic relations with the R.O.C. government, and in negotiating with the R.O.C. government, they aimed to “create the appearance of a ‘bilateral treaty,’ but in effect, it was an economic agreement with the ‘local administration’ in Taiwan.”⁴¹ The R.O.C., however, had three goals: (1) to maintain equal status with each of its allies who had conducted military operations against Japan; (2) to ensure that a bilateral treaty between China and Japan be generally identical with the contents of the Treaty of Peace with Japan; and (3) to make sure that any bilateral treaty between Japan and China recognize their sovereignty over all Chinese territory.⁴²

Thus, although the two governments differed greatly in their treaty negotiations, the content of the treaty that both countries would sign was subject to the restrictions set by the United States, the intermediary of the treaty, that “this treaty does not determine the ownership of Taiwan and the Penghu Islands,” and that “the scope of the treaty is limited to the terms of the Yoshida Letter.”

4.3. Process of enacting the nationality clause

The first draft prepared by the Japanese side did not include a Nationality Clause, as the Japanese government was trying to minimize the perception that this was a bilateral treaty when negotiating with the R.O.C. government. The original text of the Nationality Clause was Article 20 of the first draft submitted by the R.O.C. government to the Japanese on February 20 1952.

For the purposes of the Treaty, the nationals of the Republic of China shall be deemed to include all the inhabitants of Formosa and the Pescadores who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Formosa and the Pescadores;⁴³ …

The first draft by the R.O.C. government was almost a copy of the Treaty of Peace with Japan that excluded provisions not related to bilateral relations, but Article 20 did not have a corresponding clause in the Treaty of Peace with Japan and was added by treaty officials from the R.O.C. Ministry of Foreign Affairs at the stage of preparing for negotiations.

After receiving a draft of the Treaty of Peace with Japan from the U.S. government on July 12 1951, the R.O.C. Ministry of Foreign Affairs used it as the basis for the initial draft, and on October 5, after the signing of the Treaty of Peace with Japan, completed a revised draft that reflected the contents of the Treaty.⁴⁴ In this revised draft, the scope to include R.O.C. nationals used wording that did not specify the geographical range: the nationals of the Republic of China shall be deemed to include all the inhabitants of the territories renounced by Japan and administered by the Republic of China.⁴⁵ The document attached to the revised draft stated that the clause was intended “for the people and juridical persons of the Taiwan Province to use as a basis for the recovery of assets in Japan.”⁴⁶

However, in the draft revised after the Yoshida Letter was published, the relevant section was changed to “Taiwan and the Penghu Islands” and the following explanation was added before the letter was sent to the Executive Yuan.

The “Peace Treaty” only stipulates that Japan renounces Taiwan and Penghu, but does not explicitly stipulate to whom they belong, a point that cannot be compensated for by a bilateral treaty. Therefore, there is little basis for interpreting the people, juridical persons, ship nationality, and products of Taiwan and Penghu as the people, juridical persons, ship nationality, and products of the Republic of China and for our side to maintain its rights and interests by the provisions of the treaty. Therefore, our department has established Article 20 in the treaty document to stipulate this and raise it during negotiations with Japan.⁴⁷

Thus, the R.O.C. Ministry of Foreign Affairs recognized the impossibility of acquiring Taiwan and the Penghu Islands, which had been renounced by Article 2 of the Treaty of Peace with Japan, through a bilateral treaty. Therefore, the R.O.C. Ministry of Foreign Affairs intended to clarify its jurisdiction over the inhabitants and others in Taiwan and the Penghu Islands by adding a geographical name to this clause, while assuming that it could not claim territorial sovereignty over Taiwan and the Penghu Islands. Simultaneously, however, the R.O.C. Ministry of Foreign Affairs anticipated that the Japanese side would oppose this clause, in which case it could be dropped from the text of the treaty to the Exchange of Notes.⁴⁸

However, it was the U.S. government, not the Japanese government with which it was negotiating, that first opposed the Nationality Clause. On January 31 1952, Chief Diplomat Yeh Kung-chao handed a draft of the Sino – Japanese Treaty to U.S. Chargé d’Affaires Carl L. Rankin, requesting the U.S. government’s comments.⁴⁹ The State Department, upon receiving the draft, became concerned that the R.O.C. government was attempting to substitute the language of the scope of the treaty set forth in the “Yoshida Letter” with the provision in Article 20, and thus requested that the Article not include geographical names.

In response, treaty officials from the R.O.C. Ministry of Foreign Affairs stated that the article was not a concern and responded as follows.⁵⁰

In view of the fact that no express provision is contained in the treaty concerning the return of Formosa and the Pescadores to the Republic of China, their status would remain undefined, should these provisions or provisions of like effect fail to find their way into the treaty. ⁵¹

In other words, the R.O.C. government had not changed its position that the clause defining the scope should be stipulated in appended documents rather than in the text of the treaty, and this clause had nothing to do with the limitation of the scope of the treaty. Furthermore, their assertion was that this article merely stipulated that, in the application of the treaty, the inhabitants of Taiwan and the Penghu Islands shall be treated as nationals of the R.O.C.

Thus, it was informally confirmed between the United States and the R.O.C. government that the Nationality Clause was not in its nature a determination of sovereignty over Taiwan and the Penghu Islands before treaty negotiations between China and Japan had begun.

4.4. The nationality clause in treaty negotiations

Negotiations on the Sino – Japanese Peace Treaty began in Taipei on February 18 1952, but it was not until March 5 that specific articles were discussed. During this period, the Japanese government, under pressure from the United States, prepared a second draft. This draft included a Nationality Clause, which was identical to the wording of Article 20 in the first draft by the R.O.C. government, except for a few technical modifications to the wording.⁵² Therefore, when the Nationality Clause was discussed at the March 11 meeting between the Chief of the Japanese Government Overseas Office in Taiwan, Shiroshichi Kimura, and Deputy Minister of the R.O.C. Ministry of Foreign Affairs, Hu Qingyu, Kimura told Hu that “Article 20 is naturally acceptable.”⁵³

It is not clear why the Japanese Ministry of Foreign Affairs showed little resistance to the Nationality Clause. However, given that Kumao Nishimura, Chief of the Treaty Bureau, had asked Torao Ushiroku, Chief of the Second Section of the Asian Affairs Bureau, to avoid recognizing the R.O.C. government’s territorial sovereignty over Taiwan and the Penghu Islands before the delegation’s departure,⁵⁴ this at least shows that the Ministry of Foreign Affairs had determined that the provisions of the Nationality Clause were not in conflict with the issue of territorial sovereignty.

In subsequent negotiations, a tentative draft treaty based on the Japanese second draft was finalized by March 25. However, by the 27th, the Japanese Ministry of Foreign Affairs rejected the draft agreement, and sent a telegram with the third draft to the delegation, which kept the existing line of negotiations except for the provisions on which the R.O.C. government had compromised. This hardline proposal was not even accepted by the Japanese delegation and was later reverted to the Japanese second draft, but the Nationality Clause, as modified by the telegram, was retained in the final draft.

To clarify the nationality of Taiwanese nationals residing in Japan and other countries, in Article 11, “all the inhabitants of Taiwan (Formosa) and Penghu (the Pescadores),” after “inhabitants” insert “and all former inhabitants,” and after “(the Pescadores)” insert “and their descendants.”⁵⁵

It is not clear from existing historical documents what decisions within the ministry made this amendment necessary. However, as discussed in the previous section, the House of Representatives Foreign Affairs Committee was in the midst of its deliberations at this time, and it is possible that through this amendment, the Ministry of Foreign Affairs attempted to make the treatment of Formosan residents in Japan under domestic law consistent with the provisions of the treaty. Thereafter, the Japanese delegation informed the R.O.C. government that “the amendment was made to solve the nationality problem of the people whose domicile of origin is in Taiwan or Penghu and who are currently residing in Japan or a third country.”⁵⁶ In response to this proposed amendment to the Nationality Clause, the R.O.C. Ministry of Foreign Affairs accepted the proposal as “this proposal is also advantageous to our side.”⁵⁷ The Nationality Clause was retained as of April 8 and remained as Article 10 of the Sino – Japanese Peace Treaty that was signed on April 28, begging the question what was the interpretation in Japan of Article 10 of the Sino – Japanese Peace Treaty, which was established through the above process?

4.5. Interpretation of article 10 by the Japanese and the R.O.C. governments

Deliberations on the ratification of the Sino – Japanese Peace Treaty in the Japanese Diet began on May 14 1952, and continued in the Foreign Affairs Committee of both houses of the Diet until July 4. First, let us review the government’s explanation regarding Article 10. As explained by Eiji Wajima, Chief of the Asian Affairs Bureau, Article 10 is for the convenience of the inhabitants or former inhabitants of Taiwan and the Penghu Islands. In other words, since “the final territorial sovereignty of Taiwan and the Penghu Islands has not been clearly established under the current legal framework,” the nationality of these people will be inconveniently unclear after they lose their Japanese nationality as a result of the Treaty of Peace with Japan coming into force. Therefore, when determining which passport they should bring to Japan to be admitted, it was stipulated that they “shall be deemed to have the nationality of the Republic of China and shall be deemed to be included with the nationals of the Republic of China.”⁵⁸

Based on the government’s explanation, the Diet members who raised questions were the same group who raised questions during the deliberations on immigration legislation. They positioned Article 10 primarily as a matter of the legal status of mainlanders and Formosans in Japan.

On May 30, during a meeting of the Foreign Affairs Committee of the House of Representatives, Hyakuro Hayashi asked, “Article 10 states that nationals of the Republic of China are ‘deemed to be included.’ What is the difference between ‘deemed to be’ and ‘is a national’?” In response to this, Kanichiro Ishihara responded, “we have not seen the final decision regarding the territory, so the wording “deemed to be” has been used.⁵⁹ Similar responses to questions were repeated on other days, and although it was not made clear what “deeming” implied regarding the treatment of Formosans in Japan as citizens of the R.O.C., there was denying that a certain degree of jurisdiction over persons of Taiwanese origin should be granted to the R.O.C. government. This point is consistent with the fact that during the deliberations on immigration legislation, the government stated that there was no problem with repatriating Formosans living in Japan back to Taiwan.

By contrast, the response went into specific measures with regard to mainlanders from China. On June 26, Eki Sone of the right-wing Socialist Party asked the Upper House Foreign Affairs Committee whether the government would apply the Nationality Clause to Chinese mainlanders and require a certificate of nationality issued by the R.O.C.⁶⁰ In response, Okazaki stated that the treaty itself was “merely an agreement that the nationality of persons related to Taiwan and the Penghu Islands shall be deemed to be that of the Republic of China,” and that mainlanders are not required to obtain a nationality certificate issued by the R.O.C. government.⁶¹ In response to the question from Sone about whether the R.O.C. government had agreed to such treatment, Okazaki replied that since Article 10 also applies to the scope of application, “the R.O.C. government would like to have sovereignty over the Chinese in Japan, but the actual treatment will be as I have just stated.”⁶²

Accordingly, it was clearly, albeit passively, stated that as the scope of application of the treaty in Exchange of Notes No. 1 applies to Article 10, mainlanders in Japan are not considered “citizens of the Republic of China” in the treaty text, and therefore are not subject to the jurisdiction of the R.O.C. government. As a result, it was reaffirmed through the ratification deliberations of the treaty that the treatment of mainlanders will remain along the lines indicated during the immigration legislation deliberations.

How, then, did the R.O.C. government interpret Article 10? After the signing of the Sino – Japanese Peace Treaty, the R.O.C. Ministry of Foreign Affairs prepared a document entitled “General Report on the Conclusion of a Peace Treaty between the Republic of China and Japan” in preparation for ratification deliberations in the Legislative Yuan.⁶³ This document put forward the interpretation that recognized the sovereignty of all of China through this treaty. However, it stated that as “some territories” of the R.O.C. were occupied by Communist Party forces, the scope of application had to be limited. Meanwhile, with regard to Taiwan and the Penghu Islands, while acknowledging that territorial sovereignty could not be determined by Article 10, the document stated that the article stipulated that the residents and juridical persons of Taiwan and the Penghu Islands could be interpreted as nationals.⁶⁴ Based on this interpretation, Yeh Kung-chao stated in the Foreign Affairs Committee of the Legislative Yuan that “there is no question in practice that the residents and juridical persons of Taiwan and Penghu are the people and juridical persons of the R.O.C. However, in terms of law, neither the Treaty of Peace with Japan nor the China – Japan peace treaty (author’s note: the Sino – Japanese Peace Treaty) contains an explicit provision for the ownership of Taiwan and Penghu, so this provision was necessary.”⁶⁵

It is hence clear that the R.O.C. government also recognized that Article 10 was only a “deemed” provision that stipulated practical treatment. In this sense, there was little difference in interpretation between the Japanese and R.O.C. governments over Article 10.

In general, the reason the R.O.C. government was unable to object to the Japanese government’s decision to “not recognize Taiwanese as having ultimately acquired Chinese nationality” with Article 10 was that the R.O.C. government was forced to accept, albeit passively, the “theory of freezing Taiwan’s legal status” that the United States had insisted on. By comparison, the Japanese government was not in a position to dispute the “theory of freezing Taiwan’s legal status,” but rather used this as an excuse to justify domestic measures for Chinese residents in Japan. As a result, the two sides did not address the treatment of Chinese residents in Japan as a specific issue during the treaty negotiations, but only agreed on the interpretation of Article 10 of the Sino – Japanese Peace Treaty.

5. Conclusion

After summarizing what has been examined thus far, the questions posed at the beginning of this paper shall be answered. As discussed in Section 1, the Immigration Control Ordinance promulgated in October 1951 was enacted as a general law for immigration control in anticipation of the period after the peace treaty and regaining independence, but the provisions of the Ordinance, especially the deportation clause, were seen by the Chinese residents in Japan at the time as a threat to their lives in Japan. Therefore, Chinese residents, along with Koreans in Japan, campaigned against the Immigration Ordinance, and through petitions to opposition Diet members, tried to have the Ordinance revised, or at least have its operational policies revised, to ensure the stability of their own legal status after Japan regained its independence. In particular, after the Japanese government began working to establish diplomatic relations with the R.O.C. government, leftist Chinese residents in Japan who did not want to be repatriated to Taiwan sought residency status that did not depend on a nationality certificate issued by the R.O.C. government, and the right to choose where they would be repatriated to if they were repatriated.

Section 2 examined the questions from opposition members and the government’s response during the deliberations on the bill to extend the Immigration Control Ordinance that began in March 1952. As a result, the Immigration Control Ordinance was not revised, but the opposition lawmakers succeeded in eliciting a certain degree of useful responses from the government based on the petitions of Chinese and Korean residents in Japan. Specific results of these efforts include the exemption of Korean and Formosan residents from residence status procedures, and the exemption of mainlanders from submitting proof of nationality when applying for residence status. Nevertheless, these operational compromises by the government also depended, in the larger scheme of things, on what kind of treaty the Japanese government was willing to sign with its treaty partner. As the Japanese government viewed South Korea as the legitimate government with sovereignty over the entire Korean peninsula and was negotiating diplomatic relations with it, it did not recognize any other destination for deportation other than South Korea with regard to Koreans residing in Japan. By contrast, what the Japanese government intended to conclude with the R.O.C. was a treaty that was limited in scope and did not specify the territory over which its sovereignty would extend. Therefore, the Japanese government made it clear that while Formosans in Japan could be repatriated to Taiwan, mainlanders would not be repatriated to Taiwan.

Section 3 then examined the process of drafting, negotiating, signing, and interpreting the Nationality Clause in the Sino – Japanese Peace Treaty. Originally, there was a strong push by the United States as an intermediary behind the start of diplomatic negotiations between Japan and the R.O.C., and the Sino – Japanese Peace Treaty was subject to two conditions initiated by the United States: “this treaty shall not determine the ownership of Taiwan and the Penghu Islands,” and “the scope of the treaty is limited to the terms of the Yoshida Letter.” Therefore, the Nationality Clause, which was introduced by the R.O.C. government to clarify its jurisdiction over Taiwan except for territorial ownership, could not be interpreted as more than a “deemed” provision that did not determine the nationality of the residents of Taiwan and the Penghu Islands, and the existence of the clause regarding scope in the treaty did not allow the R.O.C. government to obtain jurisdiction over mainland Chinese people living overseas under the treaty. Meanwhile, in the process of negotiating the treaty, the Japanese government amended the article so that the Nationality Clause would also apply to Formosans residing in Japan, thereby making it clear that, under the interpretation of domestic law, they were only “deemed to” belong to the R.O.C.

As a whole, the Sino – Japanese Peace Treaty signed on April 28 1952 did not finalize the change of attributing nationality to Formosan residents in Japan as previously anticipated by government officials. Rather, the Japanese government, through its interpretation of the Nationality Clause and clause regarding the scope of application, kept the legal status of Chinese residents in Japan as an ambiguous “Chinese nationality” that neither determines it to be of the “Republic of China” nor the “People’s Republic of China.” This also allowed the Japanese government to justify a series of “expedient measures,” as it stated at the Diet, namely, to decide whether “Chinese people” could continue to reside in Japan regardless of the existence of official documents issued by the R.O.C. government, and to justify the principle of expediency in deportation to Taiwan, in which they would not be deported if they were deemed to be “from mainland China” and could be deported if they were deemed to be “Formosans.”

Geolocation information

Japan, Tokyo, Taiwan, Taipei

Acknowledgments

This paper is a translation with additions and corrections of a paper that received the 11th Japan Association for Taiwan Studies Award.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by JSPS KAKENHI Grant Number 19K20554. This work was supported by the Japan Association for Taiwan Studies under Grant and the Taipei Economic and Cultural Representative Office in Japan under Grant.

Notes on contributors

Yuki Tsuruzono

Yuki Tsuruzono, Ph.D., is an associate professor at Kagawa University, faculty of law. His research focuses on Taiwan and Overseas Chinese studies, specifically on intertwined problems of regional cold war structure and immigration control policies of post-war Asian states.

Notes

^1. On this point, see Tsuruzono,“Repatriation, Registration, and Legal Status,” 38–62.

^2. He, The Situation and Identity of Taiwanese in Japan after WWII,171.

^3. Onuma, Beyond the Myth of Mono-ethnic Japan: Koreans in Japan and the Immigration Control System, Chapter 3.

^4. Peng and Ng, Taiwan’s Legal Status, Huang, “Disputes over Taiwan’s Sovereignty and the Sino-Japanese Peace Treaty since World War II,” 59–104.

^5. Onuma, The Nationality and Human Rights of Koreans in Japan, 231–232.

^6. For the full text of the Immigration Control Ordinance, see the Official Gazette, No. 7422 (October 4, 1951), 28–66.

^7. Kim, Postwar Japanese Politics and the Issue of Koreans in Japan, Chapter 6.

^8. Ibid, 697–703. SCAP’s reasons for opposing the supplementary provisions were based on LS Chief Carpenter’s memorandum.

^9. Sunao Sonoda and Osamu Inaba of the Democratic Party of Japan, Shozo Oya and Kinjiro Kawashima of the right wing of the Socialist Party, Seiji Katsumata and Kozo Inomata of the left wing of the Socialist Party, and Hisao Kuroda of the Labour-Farmer Party, and others.

^10. Author unknown, “Opposition Campaigns Against Immigration Control Ordinance, Opposition Party Sympathizers Chinese and Koreans,”

^11. “Written Opinion on the Immigration Control Ordinance,”

^12. Ibid.

^13. Chen ed, History of Chinese Residents in Japan and Foreign Student Movement, 295.

^14. Wu and He ed, The Postwar History of Formosans in Japan: Memoirs of Wu Xiuzhu, 72.

^15. “Basic Attitude Toward the Immigration Control Ordinance (Draft),”

^16. Law Concerning Measures of Orders Relating to the Ministry of Foreign Affairs Based on the Case Concerning Orders Issued upon Acceptance of the Potsdam Declaration.

^17. Ibid.

^18. “Thirteenth Session of the Diet, Minutes of the Committee on Foreign Affairs of the House of Representatives, No. 12,”

^19. “Thirteenth Session of the Diet, Minutes of the Deliberation Council of the Committees on Foreign Affairs and Legal Affairs of the House of Representatives, No. 1,”

^20. As above, “Thirteenth Session of the Diet, Minutes of the Committee on Foreign Affairs of the House of Representatives, No. 12,”

^21. Ibid.

^22. “Thirteenth Session of the Diet, House of Representatives Committee on Foreign Affairs, No. 14,”

^23. Ibid., 3.

^24. Ibid., 7.

^25. Ibid., 7.

^26. Ibid., 12.

^27. Ibid., 15.

^28. Ibid., 18.

^29. Ibid., 22.

^30. “Thirteenth Session of the Diet, House of Representatives Committee on Foreign Affairs, No. 15,”

^31. “Thirteenth Session of the Diet, House of Councillors Committee on Foreign Affairs, No. 25,”

^32. “Thirteenth Session of the Diet, House of Councillors Committee on Foreign Affairs, No. 26,”

^33. Chikaraishi, “The Sino-Japanese Treaty from a Legal Perspective,” 26.

^34. Chang, Korean War Saved Taiwan? Analysis on the U.S. Policy toward Taiwan, Chapter3.

^35. Ishii, “China and Treaty with Japan: with a Focus on the R.O.C Government’s Standpoint,” 295.

^36. Hosoya, The Road to San Francisco Peace, 281–284.

^37. For a translation of the Treaty of Peace with Japan, see the Ministry of Foreign Affairs website https://www.mofa.go.jp/mofaj/gaiko/treaty/pdfs/B-S38-P2-795_1.pdf.

^38. Inoue, A Political History of the Sino-Japanese Normalization, 1951–1972, 22–23.

^39. Ibid., 24.

^40. Ibid., 25–35.

^41. Ibid., 42.

^42. “General Report on the Conclusion of a Peace Treaty between the Republic of China and Japan.”

^43. Tai ed,1st Series of Important Historical Documents of the Republic of China, 810.

^44. “Note from Yu-qi Xue to the minister and the deputy minister of MOFA.”

^45. “Draft peace treaty between the Republic of China and Japan,”

^46. “Talking point of Draft Sino-Japanese Peace Treaty,”

^47. ”Note dated January 261,952 from MOFA to Premier, Executive Yuan,”

^48. Ibid.

^49. “Letter from George K.C. Yeh to Carl L. Rankin,”

^50. “Memorandum from the Republic of China Foreign Affairs Office to the U.S. Department of State,”

^51. Ibid.

^52. Asada, 448–449.

^53. “The Summary Record of the Meeting of Chinese representative Ye and Japanese Chief of staff Kimura,”

^54. Inoue, work cited above, 42.

^55. “Telegram from Minister Yoshida to Plenipotentiary of Taipei Kawata regarding Negotiations for the The Sino-Japanese Treaty,”

^56. Tai, work cited above, 962.

^57. “Talking point about the written statement of Japanese representative submitted on April 8,”

^58. “Thirteenth Session of the Diet, House of Councillors Committee on Foreign Affairs, No. 33,”

^59. “Thirteenth Session of the Diet, House of Representatives Committee on Foreign Affairs, No. 28,”

^60. “Thirteenth Session of the Diet, House of Councillors Committee on Foreign Affairs, No. 43,”

^61. Ibid.

^62. Ibid.

^63. “General Report on the Conclusion of a Peace Treaty between the Republic of China and Japan,” document cited above, 4–7.

^64. Ibid.

^65. “Supplementary document of the Treaty of Peace between the Republic of China and Japan, submitted from the minister of MOFA to Legislative Yuan,”