Statelessness
Conventions andJapanese Laws
Convergence andDivergence

Osamu Arakaki

Statelessness Conventions and Japanese Laws
Convergence and Divergence

March 2015

Osamu ARAKAKITranslated by Hajime AKIYAMA

1

Osamu ArakakiStatelessness Conventions and Japanese Laws: Convergence and Divergence
Translated by Hajime Akiyama

This study was commissioned by the UNHCR Representation in Japan. Any views expressedin the paper are those of the author and are not necessarily those of UNHCR.
This report is downloadable from http://www.unhcr.or.jp.
© UNHCR, 2015
UNHCR Representation in Japan
Wesley Center 6-10-11 Minami Aoyama, Minato-ku, Tokyo 107-0062, Japan
Tel: +81-3-3499-2011
Fax: +81-3-3499-2272
www.unhcr.or.jp

Original Japanese Version published in May 2015
English Translation published in March 20162

Preface
Stateless people are those who are not considered as nationals of any state. It isvery difficult to imagine; however, it is an unfortunate fact that there are at least 10
million stateless people worldwide. Some became stateless because their country ceased
to exist; others inherit their status from their parents, unable to become citizens despite
having ties to their communities and countries. In some countries, women cannot passon their nationality to their children. Other people become stateless due toadministrative obstacles; they fall through the cracks of a system that may simply haveforgotten them. Without the formal legal bond of nationality, stateless people are often
marginalized and vulnerable to violations of their basic human rights.
Through a series of resolutions beginning in 1994, the UN General Assembly gave
UNHCR the mandate to prevent and reduce statelessness around the world, as well as toprotect the rights of stateless people. Since then, UNHCR has been providing technicaladvice to governments to reform nationality laws, policies and procedures to close legal
gaps that may lead to statelessness, to ensure that stateless people can acquire anationality and that they are identified and protected. As a result, there are signs of ashift in attitudes. Within last four years, the number of accession to two Statelessness
Conventions increased significantly: the number of contracting states for the 1954
Convention relating to the Status of Stateless Persons increased from 65 to 86 and thenumber of contracting states for the 1961 Convention on the Reduction of Statelessness
increased from 33 to 63. UNHCR believes that such increase is strong evidence that
there is now momentum to tackle stateless issues. Encouraged by such a shift and to
mark the 60th anniversary of the 1954 Convention, UNHCR launched a campaign to end
statelessness within the next 10 years in November 2014.
Japan is not a signatory to the two Statelessness Conventions. While Nationality
Act contains a number of provisions that are relevant to the issue of statelessness, itdoes not have a procedure in place that would facilitate the determination of a statelessperson. Against this backdrop, UNHCR, in 2010, commissioned a paper with a view toobtaining a better understanding of the statelessness situation in Japan, which was
subsequently published entitled “Overview of Statelessness: International and JapaneseContext”. Following the study, it was considered of importance to further analyze thecompatibility of current Japanese laws and the jurisprudence of Japanese courts with theprovision and standards contained in the 1954 and 1961 Conventions as well as relevant
provisions of international human rights law. The study was undertaken by Prof. Osamu
Arakaki of International Christian University (ICU) and his team throughout 2014 andis now published as “Statelessness Conventions and Japanese Laws: Divergence andConvergence”.
The study by Prof. Arakaki argues that mainly due to the lack of a definition of “astateless person” in Japanese law and given that there is no mechanism in place throughwhich statelessness can be determined, there are substantial gaps between the3

Statelessness Conventions and Japanese law. The study further calls for a ‘mapping
study’ to receive a better picture related to the number of stateless people in Japan andto bring to light the difficulties they may face in their day-to-day lives for reasons ofbeing stateless.
The UNHCR Representation in Japan hopes that this study will be a valuable toolfor government officials, academics, NGOs and other practitioners alike to further
expand the knowledge and understanding related to the issue of statelessness in Japan,
especially from a legal point of view. We trust that such an understanding will lead tomore active discussions and will contribute to rendering the issue of statelessness more
visible as well as to addressing any problems stateless people are confronted with inJapan.

Michael Lindenbauer
UNHCR Representative in Japan

4

About the Author
Osamu ARAKAKI is professor at International Chirstian University (ICU) and an
expert of international law and international relations. He received a Ph.D in Law from
Victoria University of Wellington, an MA in Political Science from the University ofToronto and an MA in Law from Meiji Gakuin University. Before he began serving at
ICU, he was a visiting fellow at Harvard Law School and professor at Hiroshima City
University. His main works include Refugee Law and Practice in Japan (Ashgate,2008) and “Non-state actors and UNHCR’s supervisory role in international relations,”in James C Simeon (ed.), The UNHCR and the Supervision of International Refugee
Law (Cambridge University Press, 2013).

About the Translator
Hajime AKIYAMA is a Master’s student in the Graduate School of Arts and Sciences,
ICU, majoring peace studies. He obtained a BA degree from ICU. He received the Award
of Brilliance of the twenty-ninth Eisaku Sato Essay Contest. He is researching onstatelessness from an international legal perspective.

5Translator’s Acknowledgements
The translator expresses his deep gratitude to Mr. C. Cade Mosley, a Master’s
graduate of the Graduate School of Arts and Sciences, ICU. He has proofread the text
many times, and particularly his legal expertise greatly assisted the translator.

Translator

6

Acknowledgements
The author is responsible for the contents of this report. However, it could not havebeen completed without my colleagues’ assistance.
I express my sincere gratitude to Mr. Hajime Akiyama, a student in the College of
Liberal Arts, International Christian University (ICU). He has assisted me in the wholeprocess from the collection of information to the writing and revision of this report. His
assistance was indispensable to completing it.
Professor Sosuke Seki (Seikei University Law School, attorney-at-law), Ms. Ayane
Odagawa (attorney-at-law) and Associate Professor Yue Fu (College of Humanities,
Ibaraki University) have examined manuscripts many times as a monitoring team. Theygave me many critiques and much advice, as well as invaluable information. I would liketo express my gratitude to them.
Professor Masaki Ina (College of Liberal Arts, ICU) has given me the views of his
expertise. Ms. Rina Ikebe, Master’s student in the Graduate School of Arts and Sciences,
ICU, has collected information and assisted me in conducting interviews. I appreciatethem.
I thank my interviewees, including stateless persons, legal practitioners, government
officials and child guidance offices.

Author7

Table of Contents

List of Abbreviations ································································································· 12

Introduction ··········································································································· 14
1. Statelessness and the World ·················································································· 14
2. About This Report ····························································································· 15
2.1. Contents and Methods ···················································································· 15
2.2. Summary of the Results ·················································································· 17

Chapter 1: Statelessness Conventions and Japan ································································· 20
1.1. 1954 Convention ···························································································· 20
1.1.1. Background ······························································································ 20
1.1.2. Structure and Summary ················································································ 21
1.2. 1961 Convention ···························································································· 23
1.2.1. Background ······························································································ 23
1.2.2. Structure and Summary ················································································ 24
1.3. Development ································································································· 25
1.4. Japan and Statelessness Conventions ····································································· 27
1.4.1. Japanese Laws and Treaties ··········································································· 27
1.4.2. Discussion in the Diet ·················································································· 28
1.5. Statistics ······································································································ 30
1.5.1. Number of Stateless Persons ·········································································· 30
1.5.2. Number of Stateless Persons who were Permitted to Naturalise ································· 32
1.6. Conclusion ··································································································· 33

8Chapter 2: Definition and Determination ·········································································· 35
2.1. Introduction ·································································································· 35
2.2. Definition of Stateless Persons ············································································ 35
2.3. Determination of the Status of Stateless Persons························································ 38
2.3.1. Purpose··································································································· 38
2.3.2. Agents ···································································································· 38
2.3.3. Procedures ······························································································· 39
2.4. Issues ········································································································· 43
2.4.1. Japanese Law and the Judiciary······································································· 43
2.4.2. Japanese Administration ··············································································· 45
2.5. Conclusion ··································································································· 47

Chapter 3: Rights and Protection ··················································································· 48
3.1. Introduction ·································································································· 48
3.2. Issues ········································································································· 49
3.2.1. Convergences ··························································································· 49
3.2.2. Divergences ····························································································· 56
3.3. Conclusion ··································································································· 61

Chapter 4: Prevention and Reduction ·············································································· 63
4.1. Introduction ·································································································· 63
4.2. Issues ········································································································· 65
4.2.1. Convergences ··························································································· 65
4.2.2. Divergences ····························································································· 69
4.3. Conclusion ··································································································· 75

Chapter 5: Refugees and Human Trafficking ····································································· 77

95.1. Introduction ·································································································· 77
5.2. Refugees ······································································································ 77
5.2.1. Stateless Persons in the Refugee Convention ······················································· 77
5.2.2. Discrimination which does not Amount to Persecution ··········································· 78
5.2.3. Cumulative Effects of Discrimination ······························································· 80
5.3. Human Trafficking ·························································································· 82
5.3.1. The Relationship between Statelessness and Human Trafficking ································ 82
5.3.2. Human Trafficking Protocol and Japan ······························································ 82
5.3.3. Immigration Control ··················································································· 84
5.4. Conclusion ··································································································· 85

Conclusion ············································································································· 86
1. Recommendations ····························································································· 86
1.1. Examination and Development of Japanese Law ····················································· 86
1.2. Conferment of Resident Status ·········································································· 88
1.3. Conducting a Mapping Study ··········································································· 90
1.4. Filling the Gap in Consciousness ······································································· 90
2. Conclusion ····································································································· 91

Supplementary Chapter: The Unregistered: Focusing on Mukosekisha ······································· 93
1. Introduction ···································································································· 93
2. Mukosekisha ··································································································· 93
2.1. The History of Household Registration ································································ 94
2.2. The Current Situation and Causes ······································································ 95
3. Other Unregistered Persons ·················································································· 97
4. Conclusion ····································································································· 98

10References ············································································································· 99
Appendix I: Convention Relating to the Status of Stateless Persons·········································· 108
Appendix II: Convention on the Reduction of Statelessness ··················································· 124
Appendix III: Japanese Nationality Act ·········································································· 133

11

List of Abbreviations(1) States
BrazilFranceLatviaMoldova
MyanmarPhilippines
ThailandUK
US
VietnamFederative Republic of Brazil
French Republic
Republic of Latvia
Republic of Moldova
Republic of the Union of Myanmar
Republic of the Philippines
Kingdom of Thailand
United Kingdom of Great Britain and Northern
IrelandUnited States of America
Socialist Republic of Vietnam(2) Organisations
ILO

International Labour OrganizationNGO

Non-Governmental Organisations

RSAA
UN
UNHCR
UNICEF

Refugee Status Appeals Authority in New Zealand
The United Nations
The United Nations High Commissioner for Refugees
The United Nations Children’s Fund

(3) Treaties
1930 Convention

1954 Convention
1961 Convention
CEDAW

ICCPR
ICESCR

Convention on Certain Questions relating to theConflict of Nationality Laws (Adopted in 1930,
entered into force in 1937)
Convention relating to the Status of Stateless Persons(Adopted in 1954, entered into force in 1960)
Convention on the Reduction of Statelessness(Adopted in 1961, entered into force in 1975)
Convention on the Elimination of All Forms ofDiscrimination against Women (Adopted in 1979,
entered into force in 1981)
International Covenant on Civil and Political Rights(Adopted in 1966, entered into force in 1976)
International Covenant on Economic, Social and12Refugee Convention
Refugee Protocol
Statelessness Conventions
Human Trafficking Protocol

UNTOC

Cultural Rights (Adopted in 1966, entered into force
in 1976)
Convention relating to the Status of Refugees(Adopted in 1951, entered into force in 1954)
Protocol relating to the Status of Refugees (Adopted
in 1967, entered into force in 1967)
Convention relating to the Status of Stateless Persons
and Convention on the Reduction of Statelessness
Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children,
supplementing the United Nations Convention
against Transnational Organized Crime (Adopted in
2000, entered into force in 2003)
United Nations Convention against Transnational
Organized Crime (Adopted in 2000, entered into
force in 2003)(4) Japanese Laws
Act against Organised
CrimesConstitution
General Rules Act
ICRRASpecial Act on Immigration
Control

Act on Punishment of Organised Crimes and Controlof Crime Proceeds
The Constitution of JapanAct on General Rules for Application of Laws
Immigration Control and Refugee Recognition Act
Special Act on the Immigration Control of, Inter
Alia, Those Who Have Lost Japanese Nationality
Pursuant to the Treaty of Peace with Japan(5) Others
UNHCR Handbook

statelessness determination
MinshuShuminH.T.

Handbook on Protection of Stateless Persons: Under
the 1954 Convention relating to the Status of Stateless
Persons
determination of the status of stateless persons
Saikou Saibansho Minji Hanreishu [Supreme Court
Reports on Civil Cases]
Saikou Saibansho Saibanshu Minji [Civil cases in theSupreme Court]
Hanrei Times [Precedents Times]

13

Introduction
1. Statelessness and the World
Currently, there are over ten million stateless persons in the world.1 In 2014, theSixtieth Anniversary of the adoption of the 1954 Convention,2 UNHCR launched acampaign to end statelessness by 2024. It is an ambitious challenge since it attempts to
end the history of statelessness and to tackle an aporia within the state system.
The Puritan and Glorious Revolutions in the Seventeenth Century and the French
Revolution in the Eighteenth Century transformed the holder of sovereignty from amonarch to a state’s nationals, and the modern state was formed. As a result of the“Spring of Nations” in 1848 and the development of modernisation, the nation-statesystem has spread throughout Europe. The unity of members within a nation-state andnationals’ loyalty to the state have supported the nation-state system. One source of
this unity and loyalty has been social affinity. To ensure this social affinity, nationalgroups that share culture, language and customs have gathered. As land was cut byborders and subsumed into states, nation-states also subsumed people as citizens bygranting nationality. In other words, nationality has authoritatively set borders
between the members of one nation-state and others, and it has substantiated theabstract concept of nation. On the other hand, those who do not qualify under thecriteria to be a national of any state have been recognised as “others” by the system ofnationality and have thus become stateless. In this manner, nationality, from its origins,has been an indispensable instrument to form and maintain the nation-state. Thus,
nationality and statelessness have the same length of history.3
Nation-states construct the unique characteristics of statehood by granting and
not granting nationality. Thus, the emergence of stateless persons (i.e., unchosen
people) is an inevitable outcome of the nation-state system. The occurrence ofstatelessness as a result of conflicts or the formation of newly-born states is not an
accident. Therefore, statelessness may emerge whenever a state is formed ininternational society.
At least a part of the political elite in states needs statelessness. In states that have
many stateless persons, they tend to be recognised as the persons who do not qualify
the criteria to be a national because of their racial and ethnic characteristics and their
history. Once people feel that stateless persons are not worth any nationality, thissense is fixed. Political elites find it beneficial to arrange for second-class citizens in
UNHCR, “Stateless People Figure,” at http://www.unhcr.org/pages/49c3646c26.html.
There are 82 Contracting States as of 1 September, 2014. The United Nations Treaty Collection,“Convention relating to the Status of Stateless Persons,” athttps://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V~3&chapter=5&Temp=mtdsg2&lang=en.
3 Osamu Arakaki, “Mukokusekishachiijyouyakuno Seiritsuto Tenkai [Formation and Development of the1954 Convention],” Nanmin Kenkyu Jyanaru [Refugee Studies Journal], No. 4 (December, 2014), p. 3.
12

14

order to integrate and maintain the state. Sometimes the dominant ethnic group feels
their superiority over stateless persons, and sometimes stateless persons are labelled asa dangerous group that threatens social order. In either case, the dominant ethnic
group strengthens its unity, and nationalism rises. The necessity for statelessness is not
limited to a political context. It is well-known that stateless persons become targets oflabour exploitation. The economic benefits earned by exploiting stateless persons
favours the dominant ethnic group. As a result, the dominant group puts its faith inelites.4
Since statelessness is inevitable and necessary, it has been maintained andreproduced. Currently, people who are not protected by law support people who areprotected by law. This structure is observable not only in non-democratic states andstates where violations of fundamental human rights take place. “Developed states”
and “democratic states” may also, unconsciously, support structures that create
statelessness and exploit stateless persons as members of this complicated global
society. UNHCR tackles the statelessness issue in order to end it being recognised as
inevitable and necessary. Exactly because statelessness is seen this way, it is anambitious challenge.

2. About This Report
2.1. Contents and Methods
The Office of the UNHCR takes the initiative for activities including thecollection of information on statelessness. On the page for “statelessness” in the“Refworld” website, 5 a variety of information can be found, for instance, thestatelessness situation in each state and region, the outcome reports of conferences,discussion papers, statements, proposals and lecture texts, all of which are categorised
by region, viz. Africa, North America, Asia, Europe and the Middle East and North
Africa. Also, the Office of the UNHCR cooperates in investigations for theidentification of stateless persons. It is working with partners to identify the number ofstateless persons in the People’s Republic of Bangladesh, Kyrgyz Republic, and theRepublic of Serbia. The Office of the UNHCR also attempts to grasp the magnitude ofstateless persons in the US, the UK, Kingdom of the Netherlands and Kingdom of
Belgium using existing data.6 These activities of UNHCR should reflect his or her
will to work on statelessness.
For a relevant argument, see the following. Matthew J. Gibney, “Statelessness and Citizenship in Ethicaland Political Perspective,” in Alice Edwards and Laura van Waas (eds.), Nationality and Statelessness underInternational Law (Cambridge University Press, 2014), pp. 52-56.
5 UNHCR, “Statelessness,” at http://www.refworld.org/statelessness.html.
6 Mark Manley “Mukokusekini Torikumutameno UNHCRno Mandetooyobi Katsudou [UNHCR’s Mandate
and Activities to Address Statelessness],”Houritsu Jihou [Law Times], No. 1078 (October, 2014), p. 41.
415

Such activity is also conducted in Japan. Kohki Abe, an international legal
scholar, has written Overview of Statelessness: International and Japanese Context,
which was published in both English and Japanese by the Office of the UNHCR in
April 2010.7 The report provides an overview of statelessness in Japan. It has not only
stimulated scholars and legal practitioners in Japan, but has also made the world awareof the situation of statelessness in Japan from an international legal perspective.
This report is commissioned by the Office of the UNHCR as a part of its projecton statelessness. Criteria of this research are the 1954 and the 1961 Conventions onstatelessness. 8 It aims to examine the compatibility between the Statelessness
Conventions and Japanese laws. The primary concerns in this report are the following:・ Does Japan have official statistics that correctly identify the number of statelesspersons?
・ Do Japanese laws provide a mechanism or procedure that determines statelesspersons? Are there judicial precedents or administrative practices relevant to thedetermination?
・ To what extent do Japanese laws cover the contents of the 1954 Convention?
Particularly, what contents are not covered? Are there judicial precedents oradministrative practices related to the convergences and divergences between
Japanese laws and the Convention?
・ To what extent do Japanese laws cover the contents of the 1961 Convention?
Particularly, what contents are not covered? Are there judicial precedents oradministrative practices related to the convergences and divergences between
Japanese laws and the Convention?
・ Is it possible for stateless persons to be protected by treaties to which Japan has
acceded and ratified? Particularly, what relevance does being a refugee or victim
of human trafficking have to this question?
The principal method of this report was a bibliographic survey. Interviews withgovernment officials, child guidance offices and stateless persons have supplemented
the bibliographic survey. In addition, information and advice given by legal
practitioners and specialists were also considered.

(Translator’s note: the English original version is the following. Mark Manley, “UNHCR’s Mandate andActivities to Address Statelessness” in Alice Edwards and Laura van Waas (eds.), Nationality andStatelessness under International Law (Cambridge University Press, 2014).)
7 Kohki Abe, Mukokusekino Jyoukei: Kokusaihouno Shiza, Nihonno Kadai [Overview of Statelessness:
International and Japanese Context]. (UNHCR, 2010), at http://www.unhcr.org/4ce643ac9.html.
(Translator’s note: the English version is the following. Kohki Abe, Overview of Statelessness: International
and Japanese Context. (UNHCR, 2010), at http://www.refworld.org/docid/4c344c252.html.)
8 There are 60 Contracting States of the 1961 Convention as of 1 September, 2014. The United Nations
Treaty Collection, “Convention on the Reduction of Statelessness,” athttps://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en.

16

2.2. Summary of the Results
The contents and results of a survey in this report are shown in chapters one to
five and a supplementary chapter. The following is a summary of the results.
Chapter One: Statelessness Conventions and Japan・ While Japan has not acceded to the Statelessness Conventions, Japan has been
influenced by international law concerning statelessness in the past. However, its
impact has been limited.
・ There is no mechanism that provides the total number of stateless persons present
in Japan. There are official statistics which include the number of stateless persons,but they do not necessarily reflect the actual number of stateless persons. Since
there has not been any attempt to measure the number of stateless persons
precisely, even a round number of stateless persons is not known.
Chapter Two: Definition and Determination
・ Japanese laws do not have a definition of stateless persons.
・ There is not a determination mechanism for stateless persons which attempts to
identify stateless persons in order to confirm their legal status in Japan.
・ A lack of definition and a system for determinations is a cause of gaps between the1954 Convention and Japanese laws.
・ Some recent judicial precedents approach the definition and an understanding ofstateless persons as found in the Convention. However, this does not mean that the
recent judicial precedents fill the gaps between the Convention and Japanese laws.
Chapter Three: Rights and Protection
・ Most of the rights listed in the 1954 Convention can be protected by resident status.
However, the rights are not protected for stateless persons for whom the status ofresidence has not been granted.
・ The subject of the Public Assistance Act is the Japanese people. Thus, even if
stateless persons with resident status are currently provided with assistance, they
have no legal basis to sue the government for a violation of rights when assistancebecomes unavailable in the future.
・ Regardless of resident status, there are gaps between provisions of the 1954
Convention and Japanese laws. Concerning the facilitation of naturalisation(Article 32 of the 1954 Convention), stateless persons born in Japan and otherstateless persons face different criteria for naturalisation under Japanese law. Thisis likely to be incompatible with a principle of non-discrimination (Article 3 of the171954 Convention). Furthermore, identity papers are not issued for all statelesspersons (Article 27 of the 1954 Convention) under Japanese law.
・ Since Japan does not have a procedure to determine stateless persons, there is not aconcept such as “persons seeking the statelessness determination” or “applicants tothe statelessness determination.” Thus, rights cannot be protected by being
stateless. For such people, basic freedoms such as freedom of movement (Article
26 of the 1954 Convention) and a prohibition of expulsion (Article 31 of the 1954
Convention) are not guaranteed.
Chapter Four: Prevention and Reduction
・ Japanese laws do not guarantee to grant nationality to “a person born in its
territory who would otherwise be stateless” (Article 1(1) of the 1961 Convention).
・ There is not a Japanese law that completely adheres to the requirements
concerning foundlings found in the territory (Article 2 of the 1961 Convention).
・ Japanese laws do not provide explicit rules in case of birth on a ship or in anaircraft (Article 3 of the 1961 Convention).
・ Although Article 5(1) of the 1961 Convention is interpreted such that nationality
cannot be lost if the family relationship constituting the basis of a child’s
acquisition of nationality was registered erroneously unless another nationality ispossessed or acquired, Japanese law does not seem to comply with thisinterpretation of the 1961 Convention.
Chapter Five: Refugees and Human Trafficking
・ There are a limited number of precedents where both refugee status andstatelessness are considered in Japan. Even in these limited cases, however, there
is little possibility that stateless persons can be legally protected as refugees. One
reason is that the discrimination which stateless persons face does not correspondto the meaning of “persecution” in Japanese courts.
・ Under the current ICRRA, the Minister of Justice can grant Special Permission to
Stay in Japan to victims of human trafficking. If the victim of human trafficking isa stateless person, he or she can be legally protected by the special permission.
However, its effect is limited because of the Minister of Justice’s room fordiscretion in granting resident status.
Supplementary Chapter
The Unregistered: Focusing on Mukosekisha

18

・ There are unregistered persons in Japan. Recently, mukosekisha have been given
particular attention. Also, there are children abandoned and hidden by persons
without resident status.
・ The full picture of unregistered persons is not apparent.
The details of the results and the process for the research are described in thefollowing chapters.

19

Chapter 1: Statelessness Conventions and Japan
1.1. 1954 Convention
1.1.1. Background
During the era of the League of Nations in the Interwar period, both statelesspersons and refugees were not legally differentiated since both were recognised to begroups that need to be coped with in a similar way. However, after the end of WorldWar II, the concepts of stateless persons and refugees were separated as each issue
was dealt though a separate international convention. 9 This legal separation took
place in the UN. At that time, the UN Commission on Human Rights recognised thatinternational agreement concerning stateless persons and refugees was insufficient.
The committee then announced in December 1947 that “early consideration be givenby the United Nations to the legal status of persons who do not enjoy the protection of
any government, in particular pending the acquisition of nationality as regards theirlegal and social protection and their documentation.” 10 In the year following, the UN
Economic and Social Council requested Trygve Lie, the first Secretary-General of theUN, to research national law, international agreements and conventions concerningstatelessness. Simultaneously, it asked him to submit a recommendation concerning
the necessity of concluding a new treaty. As a result, A Study of Statelessness was
published.11
The UN Economic and Social Council then appointed government
representatives from thirteen states in its Ninth Session in August 1949, establishingan ad hoc committee. The committee’s mandate was to distinguish stateless persons
and refugees in order to consider the necessity of revising and integrating existing
conventions. It also included drafting a new convention where necessary. The nextyear, the ad hoc committee was held twice in New York. During the session, thecommittee drafted the Refugee Convention and its protocol, a Protocol Concerning
Stateless Persons. At the conference, the view to separating issues concerning thestatus of refugees and the status of stateless persons became dominant. The draft
backed by majority opinion emphsised the urgency of refugees, and the subject of theconvention was refugees. At the same time, the status of stateless persons, who were
not included in the convention, was to be determined by the Protocol. According tothis draft protocol, some provisions of the draft convention would be applied, mutatis
mutandis, to stateless persons who are not refugees.
Osamu Arakaki, “Mukokusekishano Nanminsei: Nyujirandono Jissenno Kentouwo Chuushinni [StatelessRefugees: Practice of New Zealand as a Case Study of the Refugee Status Determination]”, Sekaihougakkai,
Sekaihounenpou [Yearbook of World Law], No. 31 (March, 2012).
10 UN Doc. E/600, para 46.
11 The United Nations, A Study of Statelessness (E/1112 and Add. 1, 1949).
920

UN General Assembly Resolution 428 (V) in December 1950 decided to hold a
Plenipotentiary Conference aiming at the conclusion and signing of the convention
and the protocol. The Refugee Convention was adopted at a diplomatic conference in
Geneva the year following. However, the draft protocol on stateless persons was notdiscussed because of a lack of time. As a result, the adoption of the Refugee
Convention proceded, and the drafting of the protocol was postponed. The relationshipbetween the Refugee Convention and the Protocol on Stateless Persons as aninternational instrument was maintained, but it became evident that the humanitarianand political significance were different.
The UN General Assembly held in February 1952 welcomed the adoption of the
Refugee Convention. However, deliberation concerning the Draft Protocol onStateless Persons was postponed yet again because there was not enough time. Then in
the Seventh Session held in the same year, the General Assembly requested theSecretary-General to circulate the draft of the protocol to states. It aimed to inquire
about which provisions within the Refugee Convention are applicable to statelesspersons.
On 28 September 1954, the UN Economic and Social Council convened theConference of Plenipotentiaries to consider the protocol in New York, and delegatesfrom 32 states (including delegations from five observer states) were involved in it.
Eventually, the draft on the protocol was abandoned, and a separate convention similar
to the Refugee Convention was adopted, the 1954 Convention. Pursuant to Article 39,
this convention came into force on 6 June 1960, 90 days after the deposition of theFrench instrument of ratification, the sixth instrument. 12
1.1.2. Structure and Summary
The 1954 Convention is composed of the Preamble, General Provisions (Chapter
I: Articles 1 to 11), Juridical Status (Chapter II: Articles 12 to 16), Gainful
Employment (Chapter III: Articles 17 to 19), Welfare (Chapter IV: Articles 20 to 24),
Administrative Measures (Chapter V: Article 25 to 32) and Final Clauses (Chapter VI:
Articles 33 to 42). The Convention defines stateless persons and the scope of statelesspersons as well as lists the rights of stateless persons in its substantive provisions. The
final clauses address procedural matters.
Various rights are guaranteed to a person when he or she qualifies under thedefinition of stateless persons under Article 1 paragraph 1 13 and does not meet the12

For the drafting process of the 1954 Convention, see the followings. Arakaki, supra note 3, pp. 5-6.
Nehemiah Robinson, “Convention Relating to the Status of Stateless Persons: Its History and Interpretation”,
1955, reprinted by the Division of International Protection of the United Nations High Commissioner for
Refugees, at http://www.refworld.org/docid/4785f03d2.html. Paul Weis, “The Convention Relating to the
Status of Stateless Persons,” International and Comparative Law Quarterly, Vol. 10 (1961), pp. 255-257.
13 See section 2.2.

21

exclusion clauses under Article 1 paragraph 2. 14 However, there are some importantqualifications to make about the protection of rights pursuant to the 1954 Convention.
First, rights are protected according to the level of attachment to the residing state.
The levels of attachment are, from lowest to highest, “either subject to the jurisdictionof a State party or present in its territory”, “lawfully in”, “lawfully staying in”, and“habitually resident”. More rights are granted to the persons who have a stronger
attachment. For people who have the lowest attachment to the state, the Convention
guarantees rights including access to courts, a right to public education, and freedomof religion. For people who are lawfully in the state, freedom of movement andprotection from expulsion are guaranteed. People who are lawfully staying in the state
enjoy a right of association and a right to social security. And for people who arehabitually resident in the state, protection of copyright and a right to legal assistance
are also guaranteed.
The 1954 Convention also provides four standards of treatment: “the same
treatment accorded to aliens generally”, “treatment as favourable as possible and, inany event, not less than that accorded to aliens generally in the same circumstances”,“the same treatment as nationals” and “treatment which is to be afforded to statelesspersons irrespective of the treatment afforded to citizens or other aliens” (from lowest
to highest). There are several rights that require the same treatment as nationals be
accorded to stateless persons. For instance, stateless persons lawfully staying in thestate are treated the same as nationals on the issue of public relief and assistancepursuant to Article 23. Furthermore, when one contracting state grants rights for aliens
generally other than those mentioned in the 1954 Convention, stateless persons candemand the same treatment pursuant to Article 7(1). 15 Thus, if one contracting state
grants rights to undocumented aliens generally, undocumented stateless persons arealso entitled to such rights.
As can be seen from the drafting history of the 1954 Convention and the Refugee
Convention, their structures are similar. Besides this, the rights listed in the twoconventions are also similar. However, there are some differences between the 1954
Convention and the Refugee Convention. First, the subject of protection in the former
is stateless persons, not refugees. Furthermore, the 1954 Convention neither include
non-refoulement (Article 33 of the Refugee Convention) nor protection from penalties
for illegal entry (Article 31 of the Refugee Convention). The right to work and a rightto association in the 1954 Convention are less protected compared to the Refugee
Convention.16

14
15

Ibid.
Article 7 provides that “Except where this Convention contains more favourable provisions, a Contracting
State shall accord to stateless persons the same treatment as is accorded to aliens generally”.
16 For the contents of the 1954 Convention, see the following. Arakaki, supra note 3, pp. 6-8. Robinson,supra note 12, p. 6. Weis, supra note 12, pp. 257-264. UNHCR “Guidelines on Statelessness No. 3: The
Status of Stateless Persons at the National Level” (2012), at http://www.refworld.org/docid/5005520f2.html.

22

1.2. 1961 Convention
1.2.1. Background
During the Interwar period, the League of Nations paid attention to theprevention of statelessness. The 1930 Convention adopted by the Codification
Conference embodied the concern of the League of Nations. The Convention places
an obligation on states to prevent a loss of nationality caused by a change of status.
Yet, it does not prohibit a deprivation of nationality, nor does it require states to grantnationality to those who possibly become stateless.
After World War II, the prevention of statelessness was considered in the UN. It
was an ambitious attempt since an elimination of statelessness was also considered. In
response to the ad hoc committee’s recommendation of a resolution concerningstateless persons to the UN Economic and Social Council mentioned above, theEconomic and Social Council adopted Resolution 319B III(XI) in August 1950. It wassignificant for two reasons. First, it proposed to states a specific way to reduce andeliminate statelessness. Second, it encouraged the International Law Commission to
draft necessary documents to eliminate statelessness, given that the International Law
Commission had already taken up the concern of statelessness. As a result, theInternational Law Commission began to draft a treaty. In 1951, it appointed Manley
Hudson, the former judge of the Permanent Court of International Justice, to be theSpecial Rapporteur for the Study of Nationality including Statelessness.
Substantive discussion in the International Law Commission began the following
year. Hudson made clear that statelessness by birth derives from an inconsistency
between jus soli and jus sanguinis, and that statelessness after birth is caused byfactors such as the renunciation of nationality, unilateral acts of states, change ofterritory, etc. However, due to political circumstances, he did not propose anything
further than a reduction of statelessness. In the same year, Roberto Cordova succeededas Special Rapporteur. Cordova submitted a Draft Convention on the Elimination of
Future Statelessness and a Draft Convention on the Reduction of Future Statelessness
in reaction to the request of the International Law Commission. The former placed aheavy obligation on states, and the latter was more modest. Based on these drafts, theInternational Law Commission adopted two drafts with some modifications during theFifth Session in 1953. In the Sixth Session the following year, the International Law
Commission adopted two draft conventions that reflected the views of governments,
and it submitted them to the UN General Assembly. The General Assembly requested
the Secretary-General to organise an international conference of plenipotentiaries
when at least twenty states communicated their willingness to participate in it, by
Resolution 896 on 4 November 1954.
After this condition was satisfied, the United Nations Conference on the23Elimination or Reduction of Future Statelessness was held from 24 March to 18 April
1959. Representatives from 35 states participated in the conference held in Geneva.
Participants ultimately chose a Draft Convention on the Reduction of FutureStatelessness. It focused on a prevention of statelessness by birth and placed relatively
modest obligations concerning a loss and a deprivation of nationality. From 15 August
to 28 August 1961, the conference was reconvened with representatives from 30 statesin New York. On 30 August 1961, the 1961 Convention was adopted and entered into
force on 13 December 1975 pursuant to Article 18. 17
1.2.2. Structure and Summary
The primary aim of the 1961 Convention is prevention of future statelessness inorder to reduce statelessness. In contrast to the 1930 Convention, the 1961 Convention
placed obligations on contracting states to some extent. Although it was progress, theelimination of statelessness did not become the main effort. The Convention iscomposed of the preamble and 21 articles. Among its main substantive provisions,
Articles 1 to 4 address birth and children, Articles 5 to 9 address a loss and a
deprivation of nationality, and Article 10 addresses statelessness by transfer ofterritory.
The 1961 Convention emphasises acquisition of nationality by birth, which
Articles 1 to 4 address. Article 1(1) provides that nationality be granted to a person
born in a state’s territory who would otherwise be stateless. It prevents statelessness
by birth by applying the jus soli principle. Article 2 is about foundlings found in the
territory. Absent proof to the contrary, a child is recognised to be born within the
territory of the state of the parents’ nationality. Article 3 provides that when a child isborn on a ship or in an aircraft, he or she is deemed to be born in the territory of thestate whose flag the ship flies or to which the aircraft is registered. Article 4 adds
supplemental coverage over situations that the jus soli principle does not cover. It
provides that nationality is granted by the jus sanguinis principle if a child is born
outside of a contracting state and he or she would be rendered stateless.
Article 5(1) requires the acquisition of another nationality if a person’s
nationality is lost as a consequence or by termination of a marriage. This prevents
statelessness after birth. Article 6 also requires the acquisition of another nationality if
a person’s nationality to the contracting state is lost or deprived, and it results in his or17

For the drafting process of the 1961 Convention, see the following. Osamu Arakaki, “Mukokusekisha
Chiijyouyakuto Mukokuseki Sakugenjyouyaku: Seiritsumadeno Keiitogaiyou [1954 Convention and 1961
Convention: Background and Overview]”, Houritsu Jihou [Law Times], No. 1078 (October, 2014), pp.
37-38. Yoshio Tameike, “Tsumanokokuseki, Mukokuseki [Married Women’s Nationality and Statelessness]”
In Shigejiro Tabata (Ed.), Kokusairengouno Kenkyuu [Studies of the United Nations] Vol. 3 (Yuhikaku,1966), pp. 243-247. Paul Weis, “The United Nations Convention on the Reduction of Statelessness, 1961,”
International and Comparative Law Quarterly, Vol. 11 (1962), pp. 1073-1080. Guy S. Goodwin-gill“Convention of the Reduction of Statelessness,” at http://legal.un.org/avl/pdf/ha/crs/crs_e.pdf.

24her spouse or children’s loss of nationality. Article 7(1)(a) asserts that even if avoluntary renunciation of nationality is allowed in national law, a person’s nationality
cannot be lost without that person acquiring another nationality. Article 7(2) states thatnationals who seek to naturalise to another state do not lose their original nationality
until the acquisition of the other nationality is assured. These provisions show that theConvention is cautious about a renunciation of nationality. Article 8(1) prohibits a
deprivation of nationality if it causes a person to be stateless in principle. However,
Articles 8(2) and 8(3) list exceptions to prohibiting deprivation, such as an acquisitionof nationality by fraud or a threat to the vital interests of the state. Even in such cases,
Article 8(4) provides that deprivation is justified only when it follows the law
requiring the right to a fair hearing. Article 9 bans deprivations of nationality based on
discrimination. This illustrates a history whereby nationality has been deprived by
racially discriminatory nationality laws.
Article 10 provides that treaties between contracting states concerning thetransfer of territory need to ensure that no person becomes stateless as a result of thetransfer. It derives from the history that transfers of territory were a main cause ofstatelessness.
Article 11 provides for the establishment, within the framework of the United
Nations, of a body to which a person claiming the benefit of this Convention may
apply for the examination of his or her claim and for assistance in presenting it to therelevant authority. In order to meet this requirement, the UN General Assembly has
expanded the mandate of the UNHCR through a resolution. As a result, persons within
the concern of the Convention were included in an area of the UNHCR. In the 1961
Convention, the definition of stateless persons in the 1954 Convention is invoked.18

1.3. Development
As mentioned earlier, refugees predominated over stateless persons since thedrafting of the Refugee Convention and the Protocol on Stateless Persons. During theCold War period, this distinction between stateless persons and refugees became
evident. The Refugee Protocol eliminated temporal and geographical limitations, andthe Refugee Convention expanded its scope beyond Europe. The phenomenon of
refugees has shifted to a universal refugee issue. Stateless persons were forgotten, andthe interest of international society in the issue declined. This is one reason for thesmall number of contracting states to the 1954 and the 1961 Conventions.
International society’s indifference is not only reflected in the number of contracting
18

For the contents of the 1961 Convention, see the following. Arakaki, supra note 17. Tameike, supra note
17, p. 247. Weis, supra note 17, pp. 1080-1086. UNHCR “Guidelines on Statelessness No. 4: Ensuring
Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reductionof Statelessness” (2012), at http://www.refworld.org/docid/50d460c72.html.

25

states to the Statelessness Conventions, but also in the quality of implementation of
the Conventions. For example, a definition of stateless persons in the 1954
Convention and a determination method and standard were not pursued seriously until
recently. This is completely different from the Refugee Convention since aninterpretation of the definition of refugees and a determination standard have beenrefined by practical experience and academic argument.
However, statelessness was in the spotlight in international society in the 1990s.
First, the UN General Assembly and the UNHCR Executive Committee adopted
resolutions and conclusions emphasising the necessity of avoiding statelessness. 19 In
response to a request of the UN General Assembly, the International Law Commission
also paid attention to nationality again in the context of state succession. Furthermore,regional organisations such as the Organization of American States, Organization for
Security and Co-operation in Europe and the Council of Europe are also working on
issues of statelessness.20
International organisations began to work actively on issues of stateless persons
after the end of the Cold War. With the collapse of the former Soviet Union,
Czechoslovakia, and former Yugoslavia, and a reorganisation of new states, people
who needed a new nationality dramatically increased. 21 As the magnitude of statelesspersons became more evident, states feared a destabilisation of the region. 22 As aresult, a political response became necessary. 23 Recently, there has been aninternational movement led by the Office of the UNHCR to deal with an estimated ten
million stateless persons. The movement focuses not only on the Statelessness
Conventions, but also on relevant provisions of international human rights treaties.24
Following this movement, the development of implementation methods for theStatelessness Conventions and cooperation between international organisations andNGOs are becoming evident. 25 Also, concrete ideas such as strengthening regional
cooperation, the active involvement of the UNICEF and the establishment of a special
position to deal with issues of statelessness in the UN Office of the HighCommissioner for Human Rights have been proposed. 26 Furthermore, normative
19
20

For instance, see the following. UNHCR Executive Committee, 1995 Conclusion No. 78 (XLVI).
Carol A. Batchelor, “Statelessness and the Problem of Resolving Nationality Status,” International
Journal of Refugee Law, Vol. 10, No. 1/2 (1998), p. 158.
21 David Weissbrodt and Clay Collins, “The Human Rights of Stateless Persons,” Human Rights Quarterly,Vol. 28 (2006), p. 261.
22 Ibid., p. 275. Abe, supra note 7, pp. 6-7.
23 Batchelor, supra note 20, pp. 157-158. Caroline Sawyer, “Stateless in Europe: Legal Aspects of de jureand de facto Statelessness in the European Union” in Caroline Sawyer and Brad K. Blitz (eds.),
Statelessness in the European Union: Displaced, Undocumented, Unwanted (Cambridge University Press,2011), p. 89.
24 For instance, Article 15 of the Universal Declaration of Human Rights, Article 5 of the Internaional
Convention on the Elimination of All Forms of Racial Discrimination, Article 24 of the ICCPR, Article 9 of
the CEDAW and Article 7 of the Convention on the Rights of the Child.
25 Sawyer, supra note 23, pp. 89-93.
26 James A. Goldston, “Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights
of Noncitizens,” Ethics & International Affairs, Vol. 20, No. 3 (2006), pp. 342-343. Weissbrodt and Collins,
supra note 21, pp. 275-276.

26arguments such as the “right to a nationality” have been discussed. Statelessness, once
forgotten, has in recent years seen renewed interest and activity.
In line with the current trend, many states have acceded to the Statelessness
Conventions. Since 2000, Spain, Latvia, Hungary, Moldova, the Philippines and the
UK have established statelessness determination procedures. This illustrates a new
dimension in the Conventions’ implementation.27

1.4. Japan and Statelessness Conventions
1.4.1. Japanese Laws and Treaties
Japan is composed of 7,000 islands including Hokkaido, Honshu, Shikoku andKyushu,28 with a total area of 360,000 km 2.29 As of October 2014, the population is127,090,000. Among them, 61,800,000 are male and 65,290,000 are female. 30
Most of current significant Japanese laws are statutory law. Laws and regulations(Hourei)31 can be classified into six categories: Constitution, Civil Code, Commercial
Code, Penal Code, Code of Civil Procedure and Code of Criminal Procedure. There is
not a code called administrative law, but it is made up of the laws and regulations
enacted in the sphere of public law outside of the Constitution. The Diet Act, Court
Act, Public Finance Act, Basic Act for Land, Basic Environment Act, Basic Act on
Education and the ICRRA are all parts of administrative law.
The Japanese judicial system adopts a three-tiered court system. There is one
Supreme Court located in Tokyo. It is composed of 15 justices, and includes the fullbench and petty benches. The full bench makes decisions based on consultation of the
15 justices. There are three petty benches, and each makes a decision based on a
consultation of five justices. Article 81 of the Constitution grants judicial review
authority to the Supreme Court, and courts have a mandate to assess whether laws
enacted by the Diet are compatible with the Constitution. There are eight high courts
with six branches, and one of them is located in Tokyo. High courts make decisions
based on a consultation of three judges, in general. District courts are basically locatedin each prefectural capital, although Hokkaido has four district courts because of its
27
28

For the development of Statelessness Conventions, see the following. Arakaki, supra note 3, pp. 8-9.
Statistics Bureau, Ministry of Internal Affairs and Communications, “Dai 1 Shou: Kokudoto Kishou[Chapter 1: Territory and Weather],” at http://www.stat.go.jp/data/nenkan/01.htm.
29 Ibid.
30 Statistics Bureau, Ministry of Internal Affairs and Communications, “Jinkousuikei: Heisei 26 Nen 10
Gatsuhou [Estimated Population: October 2014],” at http://www.stat.go.jp/data/jinsui/pdf/201410.pdf.
31 Law is enacted by the Diet, the legislative body. Besides these, there are cabinet ordinances, ministerial
ordinances and regulations, which are prescribed by other governmental organisations. Furthermore, there
are local ordinances prescribed local authorities. The effects of these laws and regulations are hierarchical.
Constitution has the highest priority, and higher laws and regulations take priority over lower laws andregulations.

27

size. District courts also have branches. District courts make decisions based on a
consultation of three judges or by one judge. 32 There are also family courts andsummary courts.
Now, let us briefly explore the relationship between Japanese law and treaties. 33
International law basically entrusts the implementation of international law to theconstitutions and domestic measures of each state. Japan incorporates treaties into
Japanese law. Thus, treaties can be applied domestically without special legislation
under Article 98(2) of the Constitution. 34 The Constitution is superior to Japanese
statutes, with laws enacted by the Diet and administrative ordinances following. In
this hierarchy, treaties are commonly recognised to be below the Constitution but
above statutes. According to this understanding, if a Japanese court finds a treaty andJapanese law incompatible, then the Japanese law needs to be either revised orrendered invalid.
Japan has not acceded to the Statelessness Conventions so far.35 Since Japan is a
non-contracting state, it is not bound by the Statelessness Conventions, and Article
98(2) is irrelevant except in the case of customary law. Thus, the Statelessness
Conventions themselves do not have domestic effect in Japan, and they are not within
the scope of Japanese law.
1.4.2. Discussion in the Diet
Japan has not been indifferent to treaties related to nationality and statelessness.
In fact, Japan has signed the 1930 Convention although it has not ratified it yet.36 The
1930 Convention was adopted in the First Codification Conference. It does notprohibit a deprivation of nationality, and the main concern was a conflict of laws.
However, since it provided that a change of personal status does not result in a loss ofnationality,37 it was an epoch-making convention.38
Although Japan has not acceded to the Statelessness Conventions, they have been
discussed in the Diet in the past sporadically. 39 First, on 5 June, 1979, in theCommittee on Foreign Affairs, House of Councillors, Mr. Kunihiko Shibuya made arequest to consider accession to international human rights treaties including the 1954
32
33

Citizens participate in criminal trials in District Courts under the saiban-in (citizen judge) system.
According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties, a treaty is “an international
agreement concluded between States in written form and governed by international law.”
34 Article 98(2) provides that “[t]he treaties concluded by Japan and established laws of nations shall be
fruitfully observed.” (Translator’s note: Unless otherwise noted, translation of Japanese law is adopted fromthe website of the Japanese Law Translation Database System, at http://www.japaneselawtranslation.go.jp/.)35 So far, accession to these Conventions has not been considered. Interview to Human Rights andHumanitarian Affairs Division, Ministry of Foreign Affairs of Japan (13 January, 2015).
36 League of Nations, “Convention on Certain Questions Relating to the Conflict of Nationality Law,”(1930), at http://www.refworld.org/docid/3ae6b3b00.html.
37 Arakaki, supra note 17, p. 37.
38 For an evaluation of the 1930 Convention, see Abe, supra note 7, pp. 17-18.
39 Ibid, p. 31.

28

Convention in the context of stateless persons in Okinawa Prefecture. Mr. Sunao
Sonoda, then Minister for Foreign Affairs, responded that he will consider accession
to international human rights treaties if there is merit, but he did not mention the 1954
Convention.40
On 17 April, 1981, in the Committee on Foreign Affairs, House ofRepresentatives, Mr. Shoichi Kuriyama, a government delegate, explained that it
would be difficult for Japan to accede to the Statelessness Conventions because of theprinciple of jus sanguinis through the paternal line in the then-existing Nationality Act.
Mr. Eiichi Tamaki asked a question about the possibility of Japan acceding to theConventions. In response, Mr. Kuriyama stated that the Ministry of Justice isconsidering adopting jus sanguinis through both the paternal and maternal lines. He
continued that when the principle of jus sanguinis though the paternal line is changed,
Japan may accede to them. Mr. Tamaki then mentioned stateless children in Okinawa
and requested facilitation of accession to the 1961 Convention. 41
In the Committee on Judicial Affairs, House of Councillors, on 10 May 1984,
there was an interesting deliberation about the gap between the 1961 Convention and
the Japanese Nationality Act. Mr. Atsushi Hashimoto asked the reason for
non-accession to the 1961 Convention. Mr. Taisuke Biwata, a government delegate,
explained that Articles 1(2)(a) and 1(2)(b) are not compatible with the Nationality Act
for the following reasons;・ Article 1 of the 1961 Convention provides that nationality should be granted bybirth automatically, or by an application. In order to grant nationality by birth to
reduce statelessness, nationality needs to be granted to persons staying in Japan for
short periods. However, many states do not apply this idea, and it is also not
appropriate for Japan.
・ Concerning a conferment of nationality by application, the 1961 Convention statesthat people between the ages of 18 and 21 can apply for nationality. However, an
age limit is not necessary, and this limitation should not be reflected in Japanese
laws. Thus, Japan cannot accede to the 1961 Convention.
Regarding the second point, Mr. Hashimoto pointed out that since the requirement inJapanese law is less restrictive than the 1961 Convention requirement, there is nocontradiction between the Japanese law and the 1961 Convention. 42
40

Minutes of the Diet are retrieved from http://kokkai.ndl.go.jp/. 1979 (Shouwa 54) Nen 6 Gatsu 5 Nichi,
Dai 87 Kai Kokkai Sangiin Gaimuiinkai Kaigiroku, Dai 15 Gou [Minutes of the Committee on Foreign
Affairs, House of Councillors, the 87th Session of the Diet. Vol. 15. 5 June, 1979], pp. 17-20.
41 1981 (Shouwa 56) Nen 4 Gatsu 17 Nichi, Dai 94 Kai Kokkai Shuugiin Gaimuiinkai Kaigiroku, Dai 10
Gou [Minutes of the Committee on Foreign Affairs, House of Representatives, the 94th Session of the Diet.
Vol. 10. 17 April, 1981], pp. 13-14.
42 1984 (Shouwa 59) Nen 5 Gatsu 10 Nichi, Dai 101 Kai Kokkai Sangiin Houmuiinkai Kaigiroku, Dai 6 Gou[Minutes of the Committee on Judicial Affairs, House of Councillors, the 101st Session of the Diet. Vol. 6.
10 May, 1984], pp. 22-23.

29

Despite this discussion and the encouragement of the UN General Assembly to
accede,43 Japan has not yet acceded to the Statelessness Conventions. On the other
hand, Japan acceded to the Refugee Convention and the Refugee Protocol at the
beginning of the 1980s.44 It was motivated by political and humanitarian necessitywith the influx of Indo-Chinese refugees. Statelessness Conventions were discussed in
the Diet around the same time. While Japan has acceded to the Refugee Convention
and the Refugee Protocol, Statelessness Conventions were only discussed sporadically.
Japan’s level of engagement is completely different between the two issues, and it
reflects a gap of concern that international society had then.
Accession to the Refugee Convention and the Refugee Protocol became a trigger
to amend the then-existing Japanese laws and regulations concerning immigration
control, as well as to establish a refugee status determination system. Furthermore, thenationality clause was eliminated from laws and regulations concerning social security,
such as the National Pension Act and the Child Rearing Allowance Act. As a result,the legal basis for aliens, including refugees, to receive the same status as Japanesenationals in primary education, national pension, child rearing allowance and healthinsurance was arranged. 45 As already mentioned, the Refugee Convention and the1954 Convention were part of one international instrument during the drafting process,and they share many provisions. Thus, accession to the Refugee Convention is not
negligible when considering the convergence and divergence between the 1954
Convention and Japanese laws.

1.5. Statistics
1.5.1. Number of Stateless Persons
Official statistics of stateless persons staying Japan are found in the “Statistics on
Foreign National Residents,” released by the Ministry of Justice. According to thestatistics, 599 “Foreign National Residents” are registered as stateless in Japan as ofJune 2014. 46 This number is based on a database prepared from the records ofnationality and region on residence cards and special permanent resident certificatespursuant to Article 7 of the Special Act on Immigration Control. Furthermore,

43
44

Abe, supra note 7, p. 31.
Accession was approved in an ordinary session of the Diet in June 1981, and Japan acceded to the
Refugee Convention in October 1981 and to the Refugee Protocol in January 1982.
45 Akira Takafuji, Gaikokujinto Shakaihoshouhou: Seizonkenno Kokusaitekihoshouhourino
Kouchikunimukete [Aliens and Social Security Law: Towards Building a Legal Principle of theInternational Protection of the Right to Life]. (Akashi Shoten, 2001), p. 106.
46 Ministry of Justice, “Dai 1 Hyou Kokuseki, Chiikibetsu Zairyuusikaku (Zairyuumokuteki) Betsu
Zairyuugaikokujin [Table 1: Foreign National Residents by Nationality, Region and Status of Residence(Purpose of Residence)],” at http://www.e-stat.go.jp/SG1/estat/List.do?lid=000001127507.

30

according to the statistics, there are 635 stateless persons in Japan as “All Foreign
National Residents” as of June 2014.47 Since the statistics on all foreign national
residents include not only residence card holders who have resident status for a
medium to long term and special permanent residents, but also aliens who reside inJapan for a short term, its number is larger than the one in the statistics for foreign
national residents.
However, there are concerns with measuring the number of stateless persons
dependent on the statistics mentioned above. Regarding the statistics on foreign
national residents, ineffective nationality can be recorded on a residence card or a
special permanent resident certificate and be a basis for the data on foreign national
residents.48 In other words, the number of stateless persons in the statistics on foreign
national residents does not seem to reflect the real number of stateless persons inJapan. The gap between the number in the statistics on foreign national residents andthe number of recipients of re-entry permits to Japan furthers the concern. Re-entry
permits are granted for aliens residing in Japan and not possessing any passport(Article 26(2) of the ICRRA) when they leave Japan and attempt to re-enter before thevisa permission expires (Article 26(1) of the ICRRA). 49 Thus, stateless persons who
cannot receive a passport can be recorded as having a nationality in their residencecards or special permanent resident certificates. In 2013, re-entry permits were issued
1,715 times.50 This implies that the number of stateless persons may be larger than thenumber of the statistics on foreign national residents. Of course, this is a possibility.
Even if a person has a nationality, re-entry permits should be granted if that person’s
state of nationality is not likely to grant a passport (for example, refugees and persons
who are permitted to stay based on humanitarian considerations). Thus, not all people
who have received a re-entry permit are stateless.
Furthermore, there are stateless persons who cannot be counted in either of thefollowing groups, statistics on foreign national residents (foreign national residents
Ministry of Justice, “Dai 1 Hyouno 2 Kokuseki, Chiikibetsu Zairyuusikaku (Zairyuumokuteki) Betsu
Souzairyuugaikokujin [Table 1.2: All Foreign National Residents by Nationality, Region and Status ofResidence (Purpose of Residence)],” at http://www.e-stat.go.jp/SG1/estat/List.do?lid=000001127507.
48 Ayane Odagawa, “Kokuseki, Mukokusekininteino Genjyoto Kadai: Kaiseinyuukanhouwo Fumaete [TheCurrent Situation and Challenges of Determinations on Nationality and Statelessness]”. Imin Seisaku
Kenkyuu [Migration Policy Review], No. 5 (May 2013), p. 30.
49 According to the Guidelines on Immigration and Residence Inspection, disclosed by a request for
information disclosure, short-term residents with “Temporary Visitor” status and applicants for the refugee
status determination residing in Japan with “Disignated Activities” status are not allowed to re-enter.
Therefore, even if the criteria to apply for a re-entry permit are met, it is not necessarily granted. Nyukoku,
Zairyuu Shinsa Youryou [Guidelines on Immigration and Residence Inspection], pp. 86-87 (Request forDisclosure of Administrative Documents. Date for Disclosure Decision: 29 October, 2012. Houmushou
Kan Jyou Dai 5607 Gou [No. 5607, Kan Jyou, Ministry of Justice].).
50 Fukushima Mizuho Sangiin Giin “Mukokusekimondainikansuru Shitsumon Shuisho” Nitaisuru, 2014
(Heisei 26) Nen 6 Gatsu 20 Nichiduke Seifu Toubensho (Naikaku San Shitsu 186 Dai 127 Gou) [TheGovernmental Reply on 20 June, 2014 to the “Memorandum on Questions in the Diet concerning
Statelessness Issues” Submitted by Ms. Mizuho Fukushima, Member of the House of Councillors (No. 127,
Questions in the House of Councillors, Cabinet)], at
http://www.sangiin.go.jp/japanese/joho1/kousei/syuisyo/186/touh/t186127.htm.
47

31

and all foreign national residents) or the number of re-entry permits issued. That isstateless persons who do not have a resident status. Resident cards, operated under a
new residency management system since July 2012, are issued for aliens who haveresident status for middle to long term, and special permanent resident certificates are
granted to special permanent residents. In other words, unlike statistics on registeredforeign nationals, which was based on the database granting alien registration
certificates, 51 current statistics do not include aliens without a resident status.
Statistics on all foreign national residents also counts only aliens who have resident
status.52 Also, re-entry permits are not issued for persons without a resident status.
This at last raises a fundamental question; to what extent can the official statistics
discussed above measure the number of stateless persons under the definition of the1954 Convention? As will be discussed in the following chapter, Japanese laws andregulations do not provide a definition of stateless persons, and there are limited
judicial and administrative practices that meet the interpretation of the definition ininternational law. In such a circumstance, who are “stateless persons” in the official
statistics? How much does the concept of “stateless persons” in the statistics reflectcomponents of the definition of stateless persons in the 1954 Convention? Without adefinition in Japanese law or an effort to measure the number of stateless persons, it isappropriate to conclude that even an approximate number of stateless persons is
unknown.
1.5.2. Number of Stateless Persons who were Permitted to Naturalise
Table 1 illustrates an overall number of people who were permitted to naturalise
and stateless persons who were permitted to naturalise from 2009 to 2013.
Table 1: Number of people/stateless persons who were permitted to naturalise
Year
Number ofpeople who
were permitted

2009
14,785

2010
13,072

2011
10,35951

2012
10,622

2013
8,646

Total
57,484

Alien registration certificates, issued until July 2012, have been issued regardless of possession of a statusof residence. The statistics on registered foreign nationals included stateless persons who do not have astatus of residence. Ayane Odagawa and Yue Fu, “Nihonno Mukokusekimondaiwomeguru Genjyouto Kadai[Current Situation and Issues of Statelessness in Japan]”. Houritsu Jihou [Law Times], Vol. 86, No. 11(October, 2014), p. 48. In the last statistics on registered foreign nationals as of 2011, 1,100 statelesspersons were regietered. Statistics Bureau, Ministry of Internal Affairs and Communications, “Kokuseki(Shusshinchi) Betsu Zairyushikaku (Zairyuumokuteki) Betsu Gaikokujin Tourokusha [Registered Foreign
Nationals by Nationality (Place of Origin) and Status of Residence (Purpose of Residence)],” at
http://www.e-stat.go.jp/SG1/estat/List.do?lid=000001111183.
52 For details of the statistics, see the following. Ministry of Justice, “Zairyuu Gaikokujin Toukei [Statistics
on Foreign National Residents],” at http://www.moj.go.jp/housei/toukei/housei05_00021.html.

32

to naturalise*
Number ofstateless
8
4
5
10
5
32
persons who
were permitted
to naturalise*** Retrieved from statistics released by Civil Affairs Bureau, Ministry of Justice.53** Interview with the official of Civil Affairs Bureau, Ministry of Justice. Thesestatistics are not released publicly.
“Stateless persons” in the statistics above used by the Civil Affairs Bureau,
Ministry of Justice, include persons whose nationality is unknown in addition topersons who do not have any nationality. According to the bureau, the nationality of
applicants to the naturalisation permit is assessed by considering the passport, birthcertificate, identity papers, nationality of their parents and other documents that assure
the nationality of applicants.54 The relationship between the concept of “statelesspersons” in these statistics and the definition of stateless persons under internationallaw is unclear.

1.6. Conclusion
Since the period of drafting the Refugee Convention and the Protocol onStateless Persons, refugees have been recognised as more significant than statelesspersons. As noted earlier, the Refugee Convention and the Protocol on Stateless
Persons were not adopted simultaneously because of a “lack of time.” This illustrates
the political superiority of refugees over stateless persons. The ad hoc committee
states that “[i]n the view of the urgency of the refugee problem and the responsibilityof the United Nations in this field, the Committee decided to address itself first to the
problem of refugees, […] and to leave to later stages of its deliverations the problemsof stateless persons who are not refugees.” 55 Carol A. Batchelor remarks that“[r]efugees were the priority, while the status of the stateless [persons] was seen as aseparate issue which did not attract the same urgency” since the period of drafting.56
Japan has acceded to the Refugee Convention while it has not paid attention to theStatelessness Conventions. This concurs with the international trend of the superiorityof refugees over stateless persons.
Civil Affairs Bureau, Ministry of Justice, “Kika Kyoka Shinseishasuutouno Hensen [Number of Applicants
to a Permission of Naturalisation, etc.],” at http://www.moj.go.jp/MINJI/toukei_t_minj03.html.
54 Interview with the official of Civil Affairs Bureau, Ministry of Justice (8 January, 2015).
55 UN Doc. E/1618 and Corr. 1 (17 February 1950), para. 120.
56 Batchelor, supra note 20, p. 243.
53

33

While Japan has not acceded to the Statelessness Conventions, this does notmean that there is no convergence between the provisions of the Conventions andJapanese laws. When Japan acceded to the Refugee Convention, it amended Japaneselaws that were not compatible with the Convention. Since the structure and contents of
the Refugee Convention and the 1954 Convention are similar, Japanese laws possibly
parallel the 1954 Convention. However, not only the contents but also subjects ofprotection of the Refugee Convention and the 1954 Convention are different.
Therefore, accession to the former does not mean an automatic correspondence to thelatter.
In terms of reduction, while Japan has not ratified the 1930 Convention, it hassigned the convention. After World War II, Japanese laws were amended to makethem compatible with CEDAW after its ratification. As a part of those amendments,
the Nationality Act changed its principle from jus sanguinis through the paternal line
to both the paternal and maternal lines. Of course, a change to both the paternal andthe maternal lines does not guarantee consistency with the 1961 Convention.
How many stateless persons reside in Japan? Without a definition in Japanese
law or an attempt to grasp the number of stateless persons, even a round number is
unknown.
Chapters Three to Five explore the compatibility of Japanese laws with theStatelessness Conventions. Their main purpose is to examine to what extent Japaneselaws cover the Statelessness Conventions even while Japan has not acceded to them.

34

Chapter 2: Definition and Determination
2.1. Introduction
For whom was the 1954 Convention prepared? Legally, of course, it is forstateless persons. A statelessness determination is an official act to determine whether
applicants to the determination actually fit the definition of stateless persons. The
statelessness determination is a significant act since an applicant’s status as a statelessperson is confirmed by the determination, and rights are protected based on the status.
This chapter first gives an overview of the definition of stateless persons in the1954 Convention, then it clarifies points at issue with the system and procedures forthe statelessness determination. Based on these, the report considers convergence anddivergence between the 1954 Convention and Japanese laws.

2.2. Definition of Stateless Persons
A “stateless person” under the 1954 Convention refers to “a person who is notconsidered as a national by any State under the operation of its law” (Article 1(1)),
called a de jure stateless person in contrast to another type of stateless person that will
be discussed later. This definition first appeared in the first report submitted by
Hudson as a Special Rapporteur on “Nationality, including Statelessness” appointed
by the International Law Commission, 57 and later proposed by the UN Secretariat
during the drafting of the Convention. The International Law Commission observedthat “[t]his definition can no doubt be considered as having acquired a customary
nature” today.58
Although the definition of stateless persons in the 1954 Convention is recognised
as customary law, state practice interpreting it is limited. Given this circumstance, the
UNHCR Handbook published in 201459 is remarkable. It attempts to interpret thedefinition of stateless persons and to explain issues and elements of concern
holistically. According to the UNHCR Handbook, the general principle of the Vienna
Convention on the Law of Treaties (ratified in 1969, entered into force in 1980) applys
57
58

UN Doc. A/CN.4/50, Report on Nationality, Including Statelessness, 1952, p. 17.
International Law Commission, Draft Article on Diplomatic Protection with commentaries (2006), at
http://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf.
59 UNHCR Handbook was published in 2014 based on the UNHCR “Guidelines on Statelessness No. 1”(definition of a stateless person), “Guidelines on Statelessness No. 2” (determination procedure for statelesspersons), and “Guidelines on Statelessness No.3” (status of stateless persons residing in the state). Mai
Kaneko, “Mukokusekini Kansuru UNHCR Shin Handobukku, Gaidoraintouno Kaisetsu [Commentary for
the New UNHCR Handbook and Guidelines on Statelessness]”. Nanmin Kenkyuu Jyanaru [Refugee Studies
Journal], No. 4 (December, 2014), p. 46. This was published for the purpose of being a guide for thedetermination and protection of stateless persons. UNHCR, Handbook on Protection of Stateless Persons:
Under the 1954 Convention Relating to the Status of Stateless Persons (UNHCR, 2014), p. 1, at
http://www.unhcr.org/53b698ab9.html.

35

to an interpretation of the definition of stateless persons. Thus, the definition needs tobe “interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.”60
Accordingly, the UNHCR Handbook infers that the object and purpose of the 1954
Convention are “to ensure that stateless persons enjoy the widest possible exercise of
their human rights” from its preamble and the travaux préparatoires. Furthermore, it
points out that the statelessness determination is declaratory in nature.61
The UNHCR Handbook resolves the definition of stateless persons into two parts;“by any State” and “not considered as a national … under the operation of its law”,
and it analyses each of them. Clarifying the former is relevant to mitigating thedifficulty of proving that a person does not have any nationality. It is unreasonable todemand that applicants prove statelessness vis-a-vis all states in the world, and it isalso burdensome to the official who determines the status of stateless persons. Thus,an analysis of “by any State” helps to limit the scope of “States” to which applicants
have a link. UNHCR Handbook discusses the second component, “not considered as anational … under the operation of its law”, in detail. The discussion includes thepractice and meaning of “law,” situations of “not considered as a national,” and detailsof evaluating evidence. 62 For instance, concerning the understanding of “notconsidered as a national,” the UNHCR Handbook points out the following.63
Establishing whether an individual is not considered as a national
under the operation of its law requires a careful analysis of how a Stateapplies its nationality laws in an individual’s case in practice and any
review/appeal decisions that may have had an impact on theindividual’s status. This is a mixed question of fact and law.
Applying this approach of examining an individual’s position inpractice may lead to a different conclusion than one derived from apurely formalistic analysis of the application of nationality laws of acountry to an individual’s case. A State may not in practice follow theletter of the law, even going so far as to ignore its substance. The
reference to “law” in the definition of statelessness in Article 1(1)therefore covers situations where the written law is substantiallymodified when it comes to its implementation in practice.
The explanation above clearly shows the significance of the provision “under theoperation of its law.” According to this understanding, both provisions of the law andtheir operation need to be considered in the determination procedure (which
60
61
62
63

Article 31(1) of the Vienna Convention on the Law of Treaties.
UNHCR, supra note 59, pp. 10-11.
Ibid., pp. 12-23.
Ibid., pp. 12-13.

36

provisions include not only laws such as Nationality Act, but also cabinet ordinancesand rules). How relevant authorities recognise the nationality of applicants issignificant too. The validity and value of the UNHCR Handbook’s contents will betested by the future practice of contracting states.
Article 1(2) of the 1954 Convention is an exclusion clause. The 1954 Convention
is not applied to persons who are at present receiving protection or assistance fromorgans or agencies of the UN other than UNHCR; persons who have committed acrime against peace, a war crime or a crime against humanity; persons who havecommitted a serious crime (excluding a political crime) outside the country of theirresidence prior to their admission to that country; and persons who have acted
contrary to the purposes and principles of the UN, etc.
Elements other than those of statelessness determination should not be taken into
account for the determination of status. For example, conflict of nationality laws,
transfer of territory and discrimination have all been observed as causes of persons
becoming stateless. While this is an analysis of the phenomenon, the 1954 Convention
does not legally limit the causes or places whereby persons become stateless.
Therefore, the reasons and places by which persons become stateless are not relevantto the elements of the definition. In addition, the personal characteristics of an
applicant are not elements of the statelessness determination. Even if a person has acriminal record or some personality problem, these are not relevant to the definition ofstateless persons unless they come under an exclusion clause.
In contrast with the definition of stateless persons under the 1954 Convention,
persons who have nationality legally but cannot receive effective protection from thestate of nationality are sometimes called de facto stateless persons. De facto statelesspersons were mentioned in A Study of Statelessness completed by the UN in 1948, but
it was excluded from the Convention. There are several reasons. First, drafters of theConvention wrongly assumed that de facto stateless persons would be protected by the
Refugee Convention. Thus, an insertion of de facto statelessness into the 1954
Convention was considered redundant for them. Furthermore, they wanted a clear
definition. In addition, drafters of the Convention feared a situation in which
introducing de facto statelessness into the Convention would stimulate persons who
recognised themselves as stateless persons, which would result in an acquisition ofseveral nationalities.64 Recently, there have been critical views on the classification ofde jure and de facto statelessness. For example, persons who cannot prove nationality
tend to be recognised as de facto stateless persons. However, if their stateless status is
unknown even after due effort is put into proving it, it may be appropriate to regard
them as stateless persons under the 1954 Convention, in other words, de jure statelesspersons. If these people are labelled as de facto stateless persons, not de jure statelesspersons, their rights under the 1954 Convention may not be protected. This situation
64

David Weissbrodt, The Human Rights of Non-citizens, (Oxford University Press, 2008), pp. 85-86.
Batchelor, supra note 20, p. 172.

37

needs to be avoided. Effort should be devoted to a clarification and a realisation of thedefinition of stateless persons under the 1954 Convention, not that of de facto statelesspersons. The quest for the latter may stimulate an intellectual curiosity, but it is notvery significant concerning determinations in practice.

2.3. Determination of the Status of Stateless Persons
2.3.1. Purpose
The 1954 Convention requires contracting states to protect various rights. Also,stateless persons are to be identified through a determination system of contracting
states. The determination system is significant since it specifies who to protect. The
main purpose of the determination system for statelessness is to identify the subject ofprotection under the 1954 Convention. A set standard is necessary to protect statelesspersons properly. In addition, the legal identification of stateless persons by thedetermination also contributes to a prevention and reduction of statelessness, as wellas to measuring the number of stateless persons. Nevertheless, contracting states do
not share views on implementation systems and methods. One reason is that the 1954
Convention does not provide any determination system or procedure. As a result,determination system or procedure were entrusted to the laws and discretion of eachcontracting state. As is the case with the Refugee Convention, an accumulation ofpractice by contracting states may form a unified standard for determinations andoperationalisation that direct discretion in the future. However, such a standard has not
yet been found, or is very limited. On the other hand, research on determinations is
progressing as international interest in statelessness has increased recently.
Some contracting states of the 1954 Convention have organised a determination
system for statelessness based on laws, including Spain, Hungary, the Philippines, andothers. There are some similarities between the statelessness determination and therefugee status determination. As already mentioned, the Refugee Convention and the1954 Convention were historically united. Thus, it may be natural for the latter tofollow the former. In particular, for stateless persons entering the state as immigrants,
experience with the refugee status determination should be helpful. However, adifferent subject of protection would require the preparation of a different system.
While refugees must be outside their state of nationality, statelessness may take placein situ. In other words, statelessness can occur within a state without immigration.
Thus, it may be appropriate to prepare a determination procedure within the agency
concerning nationality.
2.3.2. Agents38

Who should determine stateless persons? Each state equips various agencies todetermine statelessness. One method is to integrate a determination system forstatelessness into the refugee status determination system. This requires amodification of the structure of administration and quasi-judicial agencies such as
tribunals. Another option is to establish an agency to determine statelessness
administratively. However, it does not have to be established in the agency that is
mandated to address immigration control. It may be appropriate to establish it in theagency that deals with a nationality concerns in order to deal with in situ statelesspersons. It is also appropriate when the analysis and judgment capabilities are
considered to be significant.
In either case, the deciding agents need to be the appropriate ones to achieve thepurpose of the 1954 Convention, the protection of stateless persons. In order to do so,other elements aside from the strict determination need to be blocked in order to create
an environment of fair determinations. In addition, officers for determinations need tobe legal specialists and have a high analytical ability.
2.3.3. Procedures
2.3.3.1. Access to Determination Procedures
How should the statelessness determination progress? This procedural matter canbe separated into four pillars based on the trend and view of states whose
determination system and procedures are already established, namely, “access todetermination procedures”, “proof”, “evidence” and “due process.”
The first pillar is access to determination procedures. 65 Even if an excellent
protection system for stateless persons is organised, its value may be seriously
impaired if stateless persons do not have any access to the procedures. If theapplication form is prepared only in the language of the contracting state and theprocedure only accepts that language, it may lead to a blanket denial of protection forstateless persons. Likewise, when the counters accepting application forms are limited
to particular agencies in big cities, even the start of an application procedure isdifficult.
Other practices to limit access include limitations on the period of applicationand on the applicants. The Spanish determination system limits the period of
application,66 and such a rule makes it difficult for applicants to access the protection
system.67 Furthermore, the determination system for stateless persons in Hungary
permits access to the procedure only for persons with resident status. Thus, at least by
65
66

UNHCR, supra note 59, p. 28.
Basically, the period of application is within a month from an entrance to Spain. Gábor Gyulai “TheDetermination of Statelessness,” in Alice Edwards and Laura van Waas (eds.), Nationality and Statelessness
under International Law (Cambridge University Press, 2014), p. 130.
67 Ibid.

39

the provisions, the application of persons without resident status is not accepted. Such
implementation of the Convention is possibly incompatible with Article 38(1) of the1954 Convention which prohibits a reservation of Article 1. 68
2.3.3.2. Proof(1) Burden of Proof
Who has a responsibility to prove the statelessness of an applicant? According to
the UNHCR Handbook, which advocates a shared burden of proof,69 the applicant is
responsible to cooperate with the determination agency. When a stateless person
attempts to prove his or her statelessness, he or she faces various obstacles. Statelesspersons cannot be protected if there is not enough care taken to the circumstances they
live in. For example, some applicants may not be able to access information on
national law such as nationality law. Even if they have access, an analysis of the gap
between provisions and their operation requires specialised knowledge.
Furthermore, there are various responses of government agencies when thedetermination agency enquires into the nationality of an applicant. Some governments
respond only when nationality is enquired by applicants themselves, coming from theperspective of a protection of personal information. On the other hand, somegovernments do not respond to requests for information by individuals, but respond to
official enquiries by a foreign government. In addition, some governments take aposition on a case by case basis.70 In extreme cases, different persons at a countermay deal with applications differently. The burden of proof in the statelessness
determination must be set considering the various circumstances concerning proof.
Some contracting states have a light burden of proof. In France and Spain, theagency that determines stateless persons is responsible for proving an applicant’s
statelessness. On the other hand, applicants have a responsibility only to cooperate
during the procedure. In the Philippines, the burden of proof is shared by an applicant
and Protection Officer (the agent making the determination), but the applicant has the
responsibility to provide an accurate, full and credible account or evidence, etc.71 In
Hungary, an applicant has the primary responsibility to prove his or her statelessness.
Nevertheless, the burden of proof of the applicant is practically coordinated by the
involvement of others in the determination of the facts. The determination agency
collects nationality laws and information from other states. The Office of the UNHCR
also cooperates in the collection of information. The purpose of this system is to
68
69
70
71

Arakaki, supra note 3, p. 12.
UNHCR, supra note 59, p. 34.
Gyulai, supra note 66, p. 138.
Ayane Odagawa, “Firipinno Nanmin, Mukokuseki Nintei Tetsuduki [Refugees and the Stateless Status
Determination Procedure in the Philippines],” Nanmin Kenkyu Jyanaru [Refugee Studies Journal], No. 4(December, 2014), p. 39.

40

lighten the applicant’s burden of proof. 72(2) Standard of ProofAs refugee law has similarly developed the standard of proof, the standard of
proof in the statelessness determination is different from that of the procedure incriminal cases.73 The standard of proof must consider the possibility of rejecting anapplication incorrectly. The application of a high standard of proof would thus
undermine the object and purpose of the Convention.
The standard of proof in the determination procedure in the Philippines is a“reasonable degree.”74 In Hungary, the term “substantiate” is also used in the wording
establishing the standard of proof.75 It borrows this terminology from refugee law,and it demonstrates a lower standard of proof compared to “prove.”76(3) Examined States in Proving Statelessness
Determining which states to examine in proving statelessness is a principal
agenda concerning proof. Proof of an absence of nationality is a difficult task, and it is
not reasonable to require proof of statelessness vis-a-vis all states in the world.
Therefore, the number of states needed to prove statelessness is limited in contracting
states’ practice.
In the determination procedure of Hungary, it is enough for the applicant to proveor substantiate statelessness with regards to relevant states. Relevant states here mean
the state of birth, states of residence or settlement in the past and the state ofnationality of family and parents. 77 The Philippines does not explicitly limit whichstates are needed to prove statelessness, but Filipino law provides that it “involves theexamination of the nationality laws of the country with which the Applicant has a
relevant link (by birth, descent, marriage or habitual residence).” 78 This implies thatthe states needed to prove statelessness are limited.
2.3.3.3. Evidence
The following are types of evidence for the statelessness determination.79
・ Responses from foreign authorities to enquiries — This is one of the most
72
73
74
75
76
77
78
79

Arakaki, supra note 3, p. 11.
UNHCR, supra note 59, pp. 34-35.
Odagawa, supra note 71, p. 39.
Arakaki, supra note 3, p. 11.
Gyulai, supra note 66, pp. 138-139.
Arakaki, supra note 3, p. 11.
Section 9 of the Department Circular No. 058, Department of Justice.
For instance, see the following. Gyulai, supra note 66, pp. 139-140. UNHCR, supra note 59, p. 33.

41

common types of evidence to be used in the statelessness determination.
・ Information on relevant states — Credible, accurate and the latest information on
relevant states is essential. Within this category, evidence of not only the law of
relevant states but also its operation is significant. Information needs to becollected from not only governments and NGOs, but various other sources as well.
The testimony of experts may be utilised.
・ Information provided by the Office of the UNHCR — In case a government does
not respond to an enquiry, the Office of the UNHCR may help.
・ Documents — Applicants may submit a certification of renunciation of nationality
and/or travel documents (which sometimes notify that the applicant is stateless).
Certificates of naturalisation, marriage certificates and military service certificatesare also pieces of evidence to consider statelessness. However, an examination of apassport acquired for applicants’ convenience, an unlawfully acquired travel
document, and the relationship with the state must all be carefully evaluated.
・ Testimony of the applicant verbally and in written form — The consistency of thecontents of an applicant’s application form and his or her testimony is a significant
component to assessing credibility.
2.3.3.4. Due Process
The following are some points concerning due proesss and not a comprehensive
list.

80

・ The right to an interview — Applicants have a right to make assertions through aninterview. The applicant can provide necessary information to the determination
agency. He or she can explain any assertion to clarify ambiguities.
・ Providing legal aid — Legal aid is important when an economically vulnerable
applicant attempts to prove his or her statelessness. Assistance with interpretationand translation is vital.
・ Involvement of the Office of the UNHCR — Access to information on an
application and involvement in the interview by the Office of the UNHCR securesa fair procedure. Information and expert knowledge which the Office of the
UNHCR shares are beneficial to a determination agency.
・ Opportunity for judicial review — A method to appeal a denial of an
administrative procedure should be prepared.
・ Attention to the status of refugees — Where there is an opportunity for an
applicant to apply for refugee status, it must be notified to him or her. When both
applications for a refugee status determination and a statelessness determination
proceed in parallel, each claim is assessed and a decision is made separately. For
persons who are determined under both statuses, it is important to be aware that80

For instance, see the following. UNHCR, supra note 59, pp. 28-30.

42

even after refugee status ceases, statelessness persists. In addition, the identity of
the applicant must not be disclosed to the government of the state of origin until
there is a denial of the refugee status.

2.4. Issues
2.4.1. Japanese Law and the Judiciary
Within Japanese laws and regulations, there are uses of the phrase “without
nationality,”81 and there is a provision that mentions “stateless persons.”82 However,there is no definition of stateless persons. Given the absence of a definition of statelesspersons in the laws and regulations and non-accession to the Statelessness
Conventions, there are few cases that consider the definition of stateless persons in the
judiciary. One of them is Judgment of the Deportation Order Issuance Revocation
Lawsuit in 2010.83 In that case, the plaintiff insisted that he was a stateless person.
Then, he claimed that the issuance of a deportation order was illegal because it
decided to deport him to the state of the nationality which he was considered topossess. However, this judgment does not provide a sufficient indication ofunderstanding the concept of stateless persons.
Recently, there have been considerable judgments demonstrating how theJapanese judiciary understands the concept of stateless persons. They are judgments
concerning the revocation and the declaration of nullity of denials of refugee status in2010 84 and 2013, 85 respectively. Both judgments determined that Myanmar
nationality is not granted to most Rohingya people as a general statement in theprocess to consider the refugee status of the plaintiffs. Furthermore, the former
81

Article 26(2) of the ICRRA, Article 2(iii) of the Nationality Act, and Article 38(2) of the Act on General
Rules for Application of Laws. See Odagawa and Fu, supra note 51, p. 47.
82 Article 9 of the Act on Special Provisions of the Copyright Act, Required as Consequence of the
Enforcement of the Universal Copyright Convention. See section 3.2.1(2).
83 Tokyo District Court, Judgment, 19 February 2010 (Heisei 22 Nen). H.T. No. 1356, p. 146. The plaintiff inthis case is a child of Vietnamese refugees. He was born and has lived in Thailand. According to the plaintiff,
Thai nationality was not granted to children of Vietnamese refugees in Thailand. Although Vietnamese
refugees were able to acquire Thai nationality later, it was not possible for him since he had left Thailandusing a forged passport. Also, the plaintiff claimed that he does not possess Vientamese nationality because
he does not have an official document that is issued by the Vietnamese government. Plaintiff defines
nationality as “a social fact of bond, namely a legal bond based on the authentic link of the existence,
interests and sentiment that is linked to a reciprocity of rights and duties,” then claimed that he is statelessbecause he does not have such a relationship with either Vietnam or Thailand. Defendant (Japanese
government) stated that the plaintiff himself testified that his nationality was Vientamese during theprocedure of deportation, and the Vietnamese nationality was written in the plaintiff’s Thai house bookissued by the Thai government. Thus, defendant claimed that it was legal to determine his nationality as
Vietnamese. The court concluded that Vietnamese nationality was not evident from the evidence such asThai house book.
84 Tokyo District Court, Judgment, 29 October 2010 (Heisei 19 Nen (Gyou-u) No. 472, etc.). This judgment
was kindly shared by Ms. Ayane Odagawa, attoney-at-law.
85 Tokyo District Court, Judgment, 19 November 2013 (Heisei 25 Nen). Westlaw Reference Number:
2013WLJPCA11198001.

43

judgment determined that two among the several plaintiffs did not possess Myanmar
nationality, and that they are stateless refugees. Both judgments focused on elements
such as laws and regulations, perception of the government, operation, direct effectand discriminatory treatment within the consideration of the general situation ofstateless Rohingya in Myanmar. The following is a summary of the points ofdiscussion.
Laws and Regulations
・ The 1982 Nationality Act established by the Myanmar parliament classifies thestatus of citizens into 1) “full citizenship”, 2) “associate citizenship” and 3)“naturalized citizenship”, and Rohingya are not included as an ethnic group thatcomposes any of these citizenships.
・ Thus, Myanmar nationality is not granted to most Rohingya people.
Perception of the Government
・ Since the Myanmar government takes the position that Rohingya people are aliens
who illegally entered into Arakan state relatively recently, they are not recognised
as citizens.
Operation
・ The Myanmar government has the competence to decide the rights of associate
citizens and naturalized citizens. The government also has the competence todeprive the status of associate citizenship and naturalized citizenship for reasonsof disloyalty to the state or unethical acts.
・ Technically, Rohingya people can be associate citizens or naturalized citizens, butthere is no chance for them to acquire the nationality even if they apply for it inreality.
Direct Effect・ While an identity document that classified persons by the three citizenship statuses
was introduced in 1989, most Rohingya people are not recognised as citizens ofMyanmar. Therefore, no identity document was issued.
Discriminatory Treatment
Rohingya people are discriminated by the authorities of Myanmar. The following
are examples.

44

・ Rohingya people are subject to expulsion.
・ Their movement is heavily limited.
・ Their land is confiscated in order to build model villages.
・ They are impressed into forced labour discriminatorily.
・ They are forced to give up property.
・ They are treated discriminatorily and face extremely broad limitations to living insociety, such as vis-a-vis marriage, religious activity, the assumption of official
duties and in cases of education and medical treatment, etc.
Both judgments consider not only the provisions of the nationality law, but also
the perception of the government and the operation of its law. Even its effects andresults are considered to some extent to determine the general facts concerningstatelessness. Therefore, the fact is not determined only by the form of law. Thisapproach taken by these judgments is similar to that of the UNHCR Handbook.86
On the other hand, it cannot be claimed that these judgments demonstrate that theJapanese judiciary is approaching the understanding of the Statelessness Conventions,to which Japan has not acceded. First, at the time of the writing of this report, theauthor is not aware of any other precedents that contribute to a clarification of theconcept of statelessness. This is a restriction in a quantitative sense. Secondly, therelationship with the definition of stateless persons in the 1954 Convention that isrecognised as a part of customary law is not clear in these judgments. At least, thecourt does not state that the term “stateless persons”, as used in its judgments, is thesame as used in international law. Furthermore, while statelessness and the situation of
Rohingya people are generally explained, the court neither explains the generalelements of stateless persons, nor analyses the structure of the elements of thedefinition. In addition, in both cases the plaintiffs requested the court to either confirm
their refugee status or revoke the denial of it. Thus, the focus of the judgments was not
an identification of statelessness.87
2.4.2. Japanese Administration
Japanese administrative practice does not appear to approach the elements of the1954 Convention’s definition from the available documents. For example, a person“without nationality” in Article 2(iii) of the Nationality Act includes “statelesspersons.” Furthermore, according to an explanation by an official of the Ministry of86

Although the court stated that many Rohingya people are generally stateless, it did not determine that thedefeated plaintiffs of the judgment in 2010 (see footnote 87) nor the plaintiff of the judgment in 2013 werestateless.
87 Among twenty plaintiffs, two of them were granted refugee status in the judgment in 2010, and one
additional plaintiff’s refugee status was granted in the judgment of the high court. The refugee status of theplaintiff of the judgment in 2013 was denied. See section 5.2.2 (2).

45Justice, a “stateless person” is “the person who does not have nationality of any state,”and “whether he or she possesses nationality is determined by the nationality law ofeach state.” Thus, “conceptually, whether a person is stateless or not needs to be
judged by the nationality law of each state.”88 This explanation does not make clear towhat extent there are convergences with the issues of the definition of the 1954
Convention, such as the restriction of “State” or an interpretation of “under theoperation of its law.”
As in cases of applying Article 2(iii) of the Nationality Act, there arecircumstances where statelessness needs to be assessed in an administrative procedure.
However, it is not done within a unified process like the refugee status determination.
According to an article written by Ayane Odagawa, an attorney-at-law, and Yue Fu, alegal scholar, each agency of the government assesses statelessness depending on the
purpose of the laws and regulations being applied, such as the ICRRA, the Nationality
Act and private international law. 89 In other words, there is no unified method or
criteria to judge the status of stateless persons across agencies. Some claim that thedevelopment of unified criteria and a consistent “determination” of stateless persons
are essential to solve the problem of statelessness. On this point, the Japanese
government has explained that unified criteria are not necessary because the nature of
the purposes is different in an immigration control of aliens and an acquisition ofJapanese nationality.90
The above argument seems to be related to how stateless persons are determined,that is, a “procedural” matter. However, the real issue is not the “procedure” but its
precondition. In other words, the purpose of “why stateless persons are being
determined” is at the core of the argument. As has been mentioned already, thepurpose of a determination under the 1954 Convention is the protection of statelesspersons. For this purpose, stateless persons need to be identified and protected basedon their legal status, and their rights need to be secured. In the words of the 1954
Convention, its purpose and object are “to assure stateless persons the widest possible
exercise of these fundamental rights and freedoms.”91 However in Japan, there is nolegal structure that has been constructed to achieve this purpose. Without a purpose toprotect stateless persons, there cannot be a statelessness determination. Furthermore,
there is no room to argue for a procedure to determine stateless persons such as
unified criteria.
In the spheres of the Japanese ICRRA, the Nationality Act and privateinternational law, statelessness is assessed in the context of the relevant laws andregulations of each for their own respective purposes. These acts are fundamentally
88

Shozo Sawada, Mukokusekishawo Chichitosuru Chakushutsushitouno Shusshoutodokewo
Jyurisurubaaino Toriatsukaiwo Megutte [The Management of a Case to Accept a Birth Report of Children
Born in Wedlock whose Father is a Stateless Person]. Koseki, No. 454 (1982), pp. 20-21.
89 Odagawa and Fu, supra note 51, pp. 47-52.
90 Supra note 50.
91 Preamble of the 1954 Convention.

46

different in terms of their purposes. Since the purpose of protecting stateless persons isabsent, the gap with the 1954 Convention may not be filled even if the Japanese
government organised a unified method and criteria.

2.5. Conclusion
In contrast to the refugee status determination that has developed throughpractice and accumulated research, there is limited experience in the statelessness
determination. On the other hand, discussions concerning the issue have beenrevitalising recently, and the quest for the appropriate subject and procedure to
determine statelessness is ongoing.
Japan does not have a system to protect stateless persons on the grounds that they
are stateless persons, and there is no definition of stateless persons within Japaneselaw. Thus, Japan does not have a “determination” mechanism for stateless persons that
identifies them and confirms their legal status. This demonstrates a large gap with the1954 Convention. On the other hand, there are some precedents that seem to beapproaching the way of understanding of the definition of stateless persons under theConvention. However, one should be careful in their evaluation, given the limiedcases and the nature of the precedents.
The following chapter explores the convergences and divergences between the1954 Convention and Japanese laws concerning rights and protection. Althoughcurrent Japanese laws lack a definition and a determination mechanism forstatelessness, researching the aspect of rights and protection under the 1954
Convention is not meaningless. First, while a determination mechanism that focusesparticularly on the protection of stateless persons is absent, the rights of statelesspersons who have entered or reside in Japan under the 1954 Convention may bedirectly or indirectly guaranteed. Furthermore, if Japan plans to provide a definition
clause and/or a determination mechanism by an amendment of Japanese laws, it isbeneficial to know how many clauses on protection and rights are provided underJapanese laws in order to find the space that requires legislation.

47

Chapter 3: Rights and Protection
3.1. Introduction
The purpose of this chapter is to consider the compatibility of the main
substantial provisions of the 1954 Convention and the contents of Japanese laws. The
conclusion is that there are not many Japanese laws and regulations that are clearly
incompatible with the rights listed in the 1954 Convention. The main reasons are as
follows. First, the Constitution is at the top of the Japanese legal system. The
Constitution is descended from modern constitutions that recognise human rights as
one pillar. This is why the basic rights in the 1954 Convention harmonise with theprovisions of the Constitution to some extent.
Furthermore, Japanese laws are compatible with much of the content of the 1954
Convention since Japan has ratified and acceded to many human rights conventions.
In particular, the effects of Japanese legislation adopting the Refugee Convention
through accession cannot be ignored. The 1954 Convention shares many provisions
with the Refugee Convention,92 so accession to the Refugee Convention and adopting
its rules have led to a revision of laws and regulations that could conflict with the1954 Convention.93
Although the same rights are provided, the rights of stateless persons cannot be
automatically protected. It is true that many provisions in Chapter 3 of theConstitution, “Fundamental Human Rights”, are consistent with the 1954 Convention.
It is commonly accepted that the protection of human rights in the Constitution also
applies to aliens (persons who do not possess Japanese nationality) as a general rule. 94
However, whether stateless persons can enjoy the rights guaranteed by theConstitution depends on their resident status. In reality, it is difficult for persons
without resident status to be protected by the rights guaranteed by the Constitution.95
Without laws and regulations and a system corresponding to Article 1(1) of the 1954
92
93
94

See section 1.1.
See section 1.4.2.
Today, the so-called wording doctrine (the doctrine that identifies aliens’ rights under the Constitution
focusing on the wording of “kokumin [national]” and “nampitomo [every person]”) is denied, and there is aconsensus on a nature doctrine which builds on the universality of human rights and a principle ofinternational cooperation in the Constitution. For instance, see the following. Yasuhiro Okudaira, Kempou
III: Kempouga Hoshousuru Kenri [Constitution III: The Rights Guaranteed by the Constitution]. (Yuhikaku,1993), pp. 49-53. The Judgment on the McLean case also takes this position, stating that “it should beinterpreted that fundamental human rights guaranteed by Chapter 3 of the Constitution is also applied toaliens residing in Japan equally unless the rights’ scope is recognised to be limited to the Japanese nationals
by its nature” (The Supreme Court (Full Bench), Judgment, 4 October 1978 (Shouwa 53 Nen). Minshu Vol.
32, No. 7, p. 1223). The contents of the rights whose “scope is recognised to be limited to the Japanesenationals by its nature” need to be carefully examined. Suffrage, social rights and freedom to enter the state
have been recognised as rights that aliens cannot enjoy or rights that are largely restricted. Among them,social rights and freedom to enter the state are relevant to the provisions of the 1954 Convention. Social
rights are discussed in sections 3.2.1. (4) and 3.2.2. (2).
95 See section 3.2.2. (1).

48

Convention (the definition of stateless persons),96 there is no factor which connects
stateless persons and the rights and protection system. In other words, even if rights
are established in some provisions, stateless persons without resident status facedifficulty in being protected as long as the framework of immigration control is aprecondition.
This chapter first attempts to find convergences between provisions in the 1954
Convention and Japanese laws. Then, the scope of consideration expands to the effects
of resident status and the rights of persons seeking a statelessness determination infinding the gap between the 1954 Convention and Japanese laws. This chapter does
not examine all provisions but those which are particularly important.

3.2. Issues
3.2.1. Convergences(1) General Provisions
Firstly, this part examines convergences between the general provisions in
Chapter 1 of the 1954 Convention and Japanese laws. Article 3 of the 1954
Convention provides a non-discrimination principle prohibiting discrimination basedon race, religion or country of origin in the application of the Convention. During thedrafting process of the Refugee Convention, which used to be united with the 1954
Convention, persecution caused by discrimination based on these grounds was
expected. Thus, discrimination in the application of the Convention based on thesethree reasons was prohibited, and it was stated that discriminatory treatment for otherreasons should be left to contracting states. 97 Given this drafting process, it isappropriate to interpret the prohibition of discrimination under Article 3 as limited tosituations of an application of the Convention. The Japanese law that corresponds to
Article 3 of the 1954 Convention is Article 14 of the Constitution (equality under thelaw and the prohibition of discrimination). Strictly speaking, “country of origin”, one
reason listed in Article 3 of the 1954 Convention, is not listed in Article 14(1) of theConstitution explicitly. However, concerning “race”, the reason of discrimination
listed in the Constitution, there is an interpretation that it is not limited to biologicalrace but includes “country of origin.” 98 Also, among precedents, the “example”
doctrine has been dominant, i.e., the doctrine that the reasons listed in Article 14(1)are not exhaustive, but they are examples.99 Thus, Article 14 of the Constitution does
not prevent a realisation of Article 3 of the 1954 Convention. In this way, Article 3 of
96
97
98
99

See section 2.4.
Robinson, supra note 12, pp. 16-17.
Hideki Shibutani, Kempou [Constitution]. (Yuhikaku, 2007), p. 195.
Okudaira, supra note 94, pp. 128-129.

49

the 1954 Convention and Article 14 of the Constitution are basically harmonised.
However, in the case of an application of a facilitation of naturalisation (Article 32 of
the 1954 Convention), the provision on a simplified naturalisation (Article 8(iv) of the
Nationality Act) may conflict with this non-discrimination principle of theConvention.100
Article 4 of the 1954 Convention guarantees freedom of religion to statelesspersons within the territory at least as favourable as that accorded to nationals, 101 andit includes religious acts. 102 Under Japanese law, Article 20 of the Constitution(freedom of religion) is equivalent. Since this article includes freedom of religion andreligious acts,103 they are consistent.
(2) Juridical Status
Chapter 2 of the 1954 Convention covers provisions concerning juridical status.
First, Article 12(1) provides that “[t]he personal status of a stateless person shall begoverned by the law of the country of his domicile or, if he has no domicile, by thelaw of the country of his residence.”104 Under Japanese law, Chapter 3 (Articles 4 to43) of the General Rules Act corresponds to it. Article 4 of the Act provides that aperson’s capacity to act is determined by his or her national law. However, Article
38(2) provides that “[i]n cases where the national law of a party concerned shallgovern, if the party has no nationality, the law of his/her habitual residence shallgovern.” In other words, in cases of stateless persons who do not have a national law,
the “law of his/her habitual residence” is applied. 105
Article 13 of the 1954 Convention provides that stateless persons be treated as
favourable as possible, and not less favourable than that accorded to aliens generally
concerning movable and immovable property. The scope of this article includes not
only movable and immovable property but also other subsidiary rights. The concept ofproperty in the article is broad, and it includes rights concerning securities, cash andbank accounts. 106 The Alien Land Act under Japanese law seems to be directly
relevant to the article. Article 1 of the Act allows the establishment of laws andregulations which limit aliens’ right to possess land, to the same extent as the state towhich the alien belongs limits the rights of Japanese nationals to possess land under its
100 See section 3.2.2.(2).
101 This provision is the same as the Refugee Convention, but it was not included in the draft of the 1954
Convention. It was added later. Robinson, supra note 12, p. 18.
102 Ibid, p. 18.
103 Shibutani, supra note 98, pp. 378-380.
104 The 1954 Convention does not explicitly state whether stateless persons possess a legal status. However,this article shows that they possess a legal status. Laura van Waas, Nationality Matters: Statelessness underInternational Law. (Intersentia, 2008), p. 264.
105 In the 1954 Convention, determination of address is left to each state. In Japan, some assume that“habitual residence” is the same as “address.” Ryoichi Yamada, Kokusai Shihou [Shinban] [Private
International Law [New Edition]]. (Yuhikaku, 2003), p. 126.
106 Robinson, supra note 12, p. 33.

50

national law. Whether or not stateless persons have a state to which they belong is
disputable, and if there is no such state, then the rights of stateless persons will not belimited by the Act.
Article 14 of the 1954 Convention requires contracting states to protect statelesspersons the same as nationals of the state concerning artistic rights and industrial
property. The article is calling on contracting states to recognise stateless persons who
have a habitual residence as nationals of the state. According to this idea, in the state
where the stateless person has a habitual residence, he or she should be protected as
the same as its nationals. In other contracting states, he or she should be protected thesame as a national of the state in which he or she has a habitual residence. Article 9 of
the Act on Special Provisions of the Copyright Act, Required as Consequence of the
Enforcement of the Universal Copyright Convention (adopted in 1952, entered into
force in 1955) in Japanese law is partly related to the article. The Act was legislated
on 28 April 1956 to enable the Universal Copyright Convention to enter into force inJapan,107 and Article 9 reflects a provision of Protocol 1 Annexed to the Universal
Copyright Convention.108 According to it, in cases where Articles 3 (exception to theduration of protection of a work) to 5 (exception to the right of translation) are applied
to stateless persons who have a habitual residence in a contracting state of Protocol 1,stateless persons are recognised to be “[nationals] of that state.” Thus, a part of theprotection of artistic rights is covered by this Act.
Article 15 of the 1954 Convention is devoted to non-political andnon-profit-making associations and trade unions. It prohibits treating stateless persons
lawfully staying in the territory less favourable than that accorded to aliens
generally.109 Article 21 of the Constitution (freedom of association) corresponds tothis article. Article 21(1) of the constitutional guarantee for freedom of association
includes freedom of religious association. 110 Although it is unclear whether Article 15of the 1954 Convention includes freedom of religious association or not, the scope of
107 Explanation of Dr. Ichiro Kiyose, Minister of Education in the Committee on Education and Culture,
House of Councillors on 28 February 1956. 1956 (Shouwa 31) Nen 2 Gatsu 28 Nichi, Dai 24 Kai Kokkai
Sangiin Bunkyouiinkai Kaigiroku, Dai 5 Gou [Minutes of the Committee on Education and Culture, Houseof Councillors, the 24th Session of the Diet. Vol. 5. 28 February, 1956], p. 2.
108 Explanation of Mr. Takasaburo Naito, a government delegate in the Committee on Education and Culture,
House of Councillors on 28 February 1956. Ibid, p. 3.
109 During the drafting process of the 1954 Convention, there was a dispute whether a political association
should be added to this article or not. During the drafting process of the Refugee Convention, each state
was not positive to include freedom of political association. However, the Secretary-General included therefugees’ right to join a non-profit-making association including a trade union into the draft of the Refugee
Convention. Nevertheless, delegates of each state did not support it because of fears that it would be athreat to political stability. Under such circumstances, freedom of political association was eliminated fromthe draft. James C. Hathaway, The Rights of Refugees under International Law. (Cambridge University
Press, 2005), pp. 881-884. Robinson believes that even if Article 15 does not include the right of a politicalassociation, it is guaranteed pursuant to Article 7(1). Robinson, supra note 12, p. 36. However, it is notclear whether drafters had such an intention.
110 Shibutani, supra note 98, pp. 378-380. In order to hold religious events, people demanded freedom ofassembly. Because of this background, freedom of religious association is dealt separately from freedom ofgeneral association (p. 404).

51

the Constitution covers that of the 1954 Convention in any event.
Free access to the courts is guaranteed by Article 16(1) of the 1954 Convention.
Although it is presumed that Article 7(1) of the Convention111 guarantees statelesspersons’ access to the courts, this article was drafted to guarantee the right of freeaccess to the courts without facing difficulties. Article 16(1) also provides thatstateless person shall have free access to the courts on the territory of all contracting
states. This takes into consideration stateless persons without habitual residence. 112
Article 32 of the Constitution provides that “[n]o person shall be denied the right ofaccess to the courts.” “[T]he right of access to the courts” in the article includes not
only that for civil and criminal trials but also for administrative litigation.113
When aliens stand trial, the costs of the suit often become the problem. 114 The
purpose of Article 16(2) of the 1954 Convention is to mitigate the burden with legal
aid. Article 16(2) requires contracting states to treat stateless person with a habitualresidence the same as nationals. The Comprehensive Legal Support Act is relevant. It
aims to enforce the legal service. This Act is applied to stateless persons who haveresident status and an address (Article 30(1)(ii) of Comprehensive Legal Support Act).
(3) Gainful Employment
Chapter 3 of the 1954 Convention lists the rights concerning employment andlabour. Article 17(1) of Chapter 3 guarantees treatment not less favourable than that
accorded to aliens to stateless persons lawfully staying in the territory regarding
wage-earning employment. Although the 1954 Convention does not define“wage-earning employment,” Nehemiah Robinson claims that it should be interpreted
in a broader sense.115 The relevant Japanese law is Article 27(1) of the Constitution(right to work) which guarantees the assurance of a human-like life by working
people’s own labour.
Article 18 of the 1954 Convention provides the right of self-employment. It
requires contracting states to treat stateless persons lawfully in the territory of the state
in a way not less favourable than that accorded to aliens regarding the right to engage
in work on their own account or to establish companies. It is guaranteed to statelesspersons lawfully staying in the territory regardless of their will to stay in the territory
for a long period of time. 116 In Japan, freedom of business is not explicitly mentioned
in the Constitution. However, it is generally understood that freedom of business isguaranteed by Article 22(1) of the Constitution, which ensures freedom to choose

111 The article provides that “[e]xcept where this Convention contains more favourable provisions, aContracting State shall accord to stateless persons the same treatment as is accorded to aliens generally.”
112 Robinson, supra note 12, p. 37.
113 Okudaira, supra note 94, pp. 383-385.
114 Robinson, supra note 12, p. 37.
115 Ibid, p. 39.
116 Ibid, p. 40.

52

occupation, and Article 29, which ensures the inviolability of property rights.
Article 19 of the 1954 Convention guarantees the right to practice a liberal
profession. It is similar to Article 17 (wage-earning employment) and 18(self-employment) of the Convention, but it is different since it requires possession ofa recognised diploma. While the Convention does not specify what liberal professions
include, Robinson considers that physicians, dentists, lawyers, teachers and artists areincluded. However, the difference between self-employment and a liberal profession is
not clear. It is left to the view of the contracting states.117 This right is also covered by
Articles 22(1) and 29 of the Constitution.
(4) Welfare
Chapter 4 of the 1954 Convention lists provisions concerning welfare. Article 21
provides the right of stateless persons lawfully staying in the territory to housing.
Since the article was inherited from the Refugee Convention without particular
discussion,118 it is valuable to refer to the drafting history of the Refugee Convention.
Article 13 of the Refugee Convention provides the right to immovable property, so thead hoc committee that drafted the Refugee Convention was originally sceptical about
the necessity of adding a right concerning housing over again. However, since many
refugees had been forced to experience severe conditions in refugee camps, Article 21
was drafted, which would be passed to the 1954 Convention. 119 Even if the
background is different, there should not be a considerable gap between this article
and Article 22(1) of the Constitution (freedom of residence). In fact, some state thatthe freedom of residence in the Constitution is not limited to economic freedom, but“it is a part of fundamental freedom of humans [...] [, and] it has a close relationshipwith human dignity.” 120 Thus, freedom of residence in the Constitution is notinconsistent with Article 21 of the 1954 Convention, which takes the plight of refugee
camps into account.121
Article 22 of the 1954 Convention guarantees the right of stateless persons to a
public elementary education with the same treatment as is accorded to nationals. The
article guarantees the right to public elementary education and not the right to private
school. A primary education is defined by each state. 122 Article 22 of the 1954
Convention is covered by Article 26 of the Constitution (right to education). In

117 Ibid, pp. 40-41.
118 Ibid, p. 41.
119 Hathaway, supra note 109, pp. 820-824. The boundary between this article and Article 23 which provides
public relief is not clear. In reality, both of them would be applied.
120 Kiminobu Hashimoto, Nihonkoku Kempou [Japanese Constitution]. (Rev. ed., Yuhikaku, 1988), p. 349.
121 Freedom of residence in the Constitution is restricted by Article 12 of the Constitution (public welfare),as are other rights. For instance, see Toshiyoshi Miyazawa, Kempou II [Constitution II]. (Yuhikaku, 1971), p.
387. Even so, according to Article 21 of the 1954 Convention, treatment of stateless persons shall not beless favourable than that accorded to aliens generally.
122 Robinson, supra note 12, pp. 42-43.

53

addition, Article 4(1) of the Basic Act on Education provides that opportunities of
education are given to “[a]ll nationals.” By provision, opportunities of education may
not be guaranteed to aliens. However, due to the impacts of the ICESCR and so on,
Japanese public elementary and junior high schools accept aliens free of charge. A
report of the Ministry of Education, Culture, Sports, Science and Technology titled the“Plan to Enrich the Education of Alien Students” (2008), states that aliens’ right toeducation is guaranteed.123 Thus, a rejection of stateless persons’ entrance to school
may be a violation of the right provided in the Basic Act on Education.
Article 23 of the 1954 Convention provides public relief to stateless persons
lawfully staying in the territory, and Article 24 provides labour legislation and social
security. “[P]ublic relief and assistance” are not defined in the Convention, and it
depends on the situation of each state’s welfare system. Both of these provisions
require treating stateless persons the same as accorded to nationals, so the conceptual
distinction between public relief in Article 23 and labour legislation and social
security in Article 24 is not a problem. 124 Since Article 24 was inherited from theRefugee Convention, it is possible to analogise from the Refugee Convention. ILO’s
Migration for Employment Convention (adopted in 1949, entered into force in 1952)
was considered during the drafting process of Article 24 of the Refugee Convention.
Social security here includes the whole scope of guarantees when workers are not able
to work.125 The purpose of Article 24 of the Refugee Convention was to make therights to social security of refugees lawfully staying the same as that of nationals,126
and the 1954 Convention shares this purpose.
The Japanese law relevant to Article 23 of the 1954 Convention (public relief)and Article 24 (labour legislation and social security) is Article 25 of the Constitution(right to life). Some explanation is necessary for this provision. As mentioned earlier,
it is commonly understood that aliens’ human rights are also guaranteed by theConstitution. However, there are human rights whose “scope is recognised to belimited to Japanese nationals by its nature.”127 Social rights (particularly the right tolife) are one of them. This understanding places social rights as rights that require theinvolvement of the state, and as a result, Article 25 of the Constitution is interpreted to
not apply to aliens. 128 According to the general understanding, “under the
123 Ministry of Education, Culture, Sports, Science and Technology, “Gaikokujinno Kodomoni Taisuru
Shuugaku Shiennitsuite [Assistance of Alien Children to Attend School],” at
http://www.mext.go.jp/b_menu/shingi/chousa/shotou/042/houkoku/08070301/004.htm.
However, Sakuma points out that it is a non-binding goal of boards of education since it is a report, neither acircular (tsuutatsu) nor a notice (tsuuchi). Kosei Sakuma, “Mombukagakushouno Gaikokujin Jidou Seito
Ukeire Sisakuno Henka [Change of the Ministry of Education, Culture, Sports, Science and Technology’s
Policy to Receive Alien Students]”. Senshu Ningen Kagaku Ronshuu, Vol. 4 No. 2 (March 2014), p. 37.
124 Robinson, supra note 12, p. 44.
125 Hathaway, supra note 109, pp. 774-775.
126 Ibid, p. 785.
127 Judgment on the McLean case, the Supreme Court (Full Bench), Judgment, 4 October 1978. Supra note
94.
128 For example, Toshiyoshi Miyazawa states that protection of social rights is “a responsibility of the stateeach person belongs to. Japan is built on the principle of a welfare state, and it means that Japan first and54

Constitution, there is not a problem to guarantee aliens’ social rights by law.”129 Since
the Constitution does not deny the discretion of legislative body concerning theguarantee of aliens’ social rights, it does not prevent the passage of new laws
corresponding to Articles 23 (public relief) and 24 (labour legislation and social
security) of the 1954 Convention.
Article 25(2) of the Constitution (promotion of social welfare) is not the only
provision that corresponds to Article 24 of the 1954 Convention (labour legislationand social security). Laws related to social security and labour laws are interesting,including the Child Rearing Allowance Act, the Health Insurance Act, the National
Pension Act and the Employment Insurance Act. Although there was a nationality
requirement in the National Pension Act, the Act was made applicable to aliens bylegislation when Japan acceded to the Refugee Convention. In contrast, a nationality
clause remains in the Public Assistance Act. It is not compatible with the 1954
Convention.130(5) Administrative Measures
Chapter 5 of the 1954 Convention deals with administrative measures. Article 26of the 1954 Convention provides freedom of movement for stateless persons lawfully
staying in the territory the same as aliens generally. It is covered by Article 22 of theConstitution (freedom of movement). However, Article 24 of the ICRRA states thataliens generally, including persons seeking the statelessness determination, aresubjects of deportation. Thus, here is a concern that Japanese law conflicts with the1954 Convention.131
Article 28 of the 1954 Convention provides for the issuance of travel documents
to stateless persons lawfully staying in the territory. It is recognised as a substitute fora passport,132 and its purpose is to permit re-entry.133 According to the article, theissuance of travel documents cannot be rejected except for compelling reasons ofnational security and public order. However, the issuance of travel documents tostateless persons who are not legally staying in the territory is not obliged, and thiscan be determined at the discretion of the contracting states.134 Under Japanese law,re-entry permits are issued pursuant to Article 26(2) of the ICRRA. It provides for theissuance of a re-entry permit if an alien with valid resident status does not possess aforemost has a responsibility to guarantee social rights of Japanese nationals. Aliens, of course, possess
social rights as fundamental human rights, but the state he belongs to is responsible for possessing therights.” Miyazawa, supra note 121, p. 241.
129 Nobuyoshi Ashibe (revised by Kazuyuki Takahashi), Kempou [Constitution]. (5th ed., Iwanami Shoten,2011), p. 241.
130 See section 3.2.2.(2).
131 See section 3.2.2.(3).
132 Robinson, supra note 12, p. 56.
133 van Waas, supra note 104, p. 252.
134 Robinson, supra note 12, pp. 51-52.

55

passport.
3.2.2. Divergences(1) Resident Status and Stateless Persons
As we have seen, there does not seem to be many divergences between the rights
in the 1954 Convention and relevant provisions under current Japanese laws. Whenstateless persons legally stay in Japan, the same or similar rights to the 1954
Convention are granted by Japanese law.135 In other words, although there is no
particular resident status for stateless persons in Japan currently, rights in the 1954
Convention are protected by an existing resident status. In the particular case of theConstitution, this circumstance reflects the reality that aliens’ human rights areprotected within the limits of the aliens’ residency system. 136
There are 28 categories of resident status in Japan pursuant to Article 19 of the
ICRRA and provisions of the Special Act on Immigration Control. Business activities
within the granted period of stay and the scope of activities are permitted for somealiens who enter to Japan with any status among 23 categories listed in the Appended
Table I of the ICRRA. On the other hand, the statuses of Permanent Resident,137
Spouse or Child of Japanese National, 138 Spouse or Child of Permanent Resident andLong-Term Resident139 do not have any limitation on activities. For these people,
135

The right concerning courts (Article 16(2) of the 1954 Convention) clearly shows that the rights in the1954 Convention can be guaranteed through a legal resident status in Japan. Article 30(1)(ii) of theComprehensive Legal Support Act explicitly states that the subjects of an application of the act are persons“lawfully residing in this country.” See section 3.3.3.
136 The Judgment on the McLean case, to which has already been referred, states that the “[g]uarantee ofalien’s fundamental human rights under the Constitution is provided within the limits of aliens’ residency
system as mentioned above.” Some point out and criticise that it prioritises immigration control systems
over aliens’ fundamental human rights. For instance, see the following. Jyunji Annen, “‘Gaikokujinno
Jinkenron’ Saikou [Rethinking ‘Aliens’ Human Rights’]” in Ashibe koki, Gendai Rikkenshugino Tenkai(Jyou) [Development of the Current Constitutionalism (Vol. 1)] (Yuhikaku, 1993), pp. 165-181. Atsushi
Kondo, “Gaikokujinno ‘Jinken’ Hoshou [Guarantee of Aliens’ ‘Human Rights’]” in Japan Civil Liberties
Union (ed.), Kempouno Genzai [Current Constitutional Law] (Shinzansha, 2005), p. 325.
137 This is classified to general permanent residents and special permanent residents. General permanent
residents refer to aliens who do not possess Japanese nationality and are allowed to reside in Japan
indefinitely because their application for permanent resident is permitted by the Minister of Justice. On theother hand, special permanent residents are persons with resident status provided in the Special Act on
Immigration Control. Their residence is allowed indefinitely. Particularly, persons who were born in Korea
or Taiwan, residing in Japan before 2 September 1945, the day Japan has signed the Instrument of Surrender,and had renounced their Japanese nationality when the Peace Treaty entered into force are special
permanent residents. Their descendants who were born and reside in Japan are also special permanent
residents. See the Appended Table II of the ICRRA. Ryoichi Yamada and Tadamasa Kuroki, Yokuwakaru
Nyuukanhou [Easy ICRRA]. (Yuhikaku, 2010), pp. 160-163.
138 Appended Table II of the ICRRA. Ibid, pp. 90-91.
139 “Long-Term Resident[s]” are authorised to reside within the designated period of stay considering their
special circumstances. For instance, resettled refugees, the third generation of Japanese descendants, andJapanese orphans in China are included. On the other hand, refugees determined by the Minister of Justiceand ex-spouses of Japanese, long-term residents or special permanent residents who seek to reside in Japanafter a divorce or loss of their ex-spouses, can become long-term residents with the fixed condition. In such56

most of the rights in the 1954 Convention are protected.
There is no mechanism that grants resident status because of statelessness underJapanese laws and regulations. Article 50(1) of the ICRRA, which lists elements of theSpecial Permission to Stay, does not include the status of statelessness, and the“Guidelines on Special Permission to Stay in Japan” 140 also does not explicitly
mention statelessness as a positive factor. Thus, the rights of stateless persons without
resident status under the 1954 Convention are protected only when the Special
Permission to Stay is granted. If stateless persons do not possess resident status, therights in the 1954 Convention cannot be protected. 141(2) Divergences by Provision
Regardless of resident status, there are provisions within Japanese law that arequestionably compatible with the provisions of the 1954 Convention. First is the gap
between the nationality clause of the Japanese Public Assistance Act and Article 24 of
the 1954 Convention (labour legislation and social security). The previous version of
the Public Assistance Act, enacted in 1946, did not have a nationality clause, and thenthe Ministry of Health and Welfare recognised that the Act did not discriminate
persons protected by the Act by their nationality. However, in the current Public
Assistance Act, enacted in 1950, a nationality clause is included. According to theunderstanding of the Ministry of Health, Labour and Welfare, the subject of public
assistance is limited to “nationals.” Aliens legally staying Japan with the status of
permanent residents or long-term residents whose activities are not restricted and who
are recognised as refugees can receive public assistance under the Act “from theinternational morality and humanitarian perspectives.” However, other people cannot
receive public assistance even if they are legally staying in Japan.142 Such benefits
a case, the status of long-term resident is granted after an approval of an application for change of theresident status.
140 Immigration Bureau, Ministry of Justice, “Zairyuu Tokubetsu Kyokani Kakakwaru Gaidorain[Guidelines on Special Permission to Stay in Japan],” at http://www.moj.go.jp/content/000007321.pdf.
141 Some Japanese laws and regulations explicitly exclude the status of alien including those without
resident status. Relevant laws and regulations to the rights of movable and immovable property (Article 13of the 1954 Convention) and access to courts (Article 16 of the 1954 Convention) are examples of it.
Concerning the rights of movable and immovable property (Article 13 of the 1954 Convention), aliens who
do not possess resident status for a medium to long term under Article 19-3 of the ICRRA (“persons granted
to stay in Japan for less than three months, persons granted the status of Temporary Visitor, persons granted
the status of Diplomat or Official and persons equivalent to Diplomat or Official provided by an ordinanceof the Ministry of Justice”) cannot acquire a certificate of registered seal (inkan) that is necessary for an
application for registration of immovable property. Also, ownership of movable properties such as vessels,
aircrafts and automobiles is restricted for the above reason. Related to access to courts (Article 16(2) of the1954 Convention), the subjects of comprehensive legal support are persons “lawfully residing” in Japan asprovided in Article 30(1)(ii) of the Comprehensive Legal Support Act.
142 Ministry of Health, Labour and Welfare, “Shakai Hoshou Shingikai Fukushi Bukai: Seikatsu Hogo
Seidono Arikatani Kansuru Senmon Iinkai Dai 12 Kai (Heisei 16 Nen 6 Gatsu 8 Nichi) Shiryou 1 Sonota[Appendix 1 Others, the 12th Meeting (8 June 2004), Advisory Committee on the Public Assistance System,
Sectional Meeting on Welfare, Social Security Council],” at
http://www.mhlw.go.jp/shingi/2004/06/s0608-6a2.html.

57

pursuant to the Public Assitance Act are at the mercy of the state, so there is no legal
basis to sue the government if aliens cannot receive public assistance. According to
the Judgment of the Lawsuit to Request a Decision to Obligate the Start of Paying
Public Assistance of July 2014, “‘nationals’”, the subject of the Public Assistance Act,means “the Japanese nationals, and aliens are not included.” Furthermore, thejudgment stated that “aliens remain to be a de facto subject of protection based on
administrative measures pursuant to administrative circulars.”143 The Public Assitance
Act cannot be a legal basis for even stateless persons lawfully residing in Japan toclaim their rights. Thus, there is a gap between Japanese law and Article 24 of the1954 Convention.
Facilitation of naturalisation provided in Article 32 of the 1954 Convention isanother divergence by a provision. The article does not recognise naturalisation as aright of stateless persons, but it merely provides for a facilitation of naturalisation. 144
Articles 4 to 10 of the Nationality Act concern naturalisation, and they correspond to
Article 32 of the 1954 Convention. Particularly, Article 5(v) concerns thenaturalisation of stateless persons, and some stateless persons’ conditions of
naturalisation is eased by the article. The procedure of a simplified naturalisation in
Article 8(1)(iv) is applicable to stateless persons born in Japan and continuously
having a domicile in Japan for three or more years from the time they were born. One
scholar claims that naturalisation of stateless persons should be easier than that ofaliens who have another nationality. 145 Since Article 8 of the Nationality Act
corresponds to this understanding, some see the value in this provision. However, it isapplicable only to stateless persons “born in Japan”, as Article 8(1)(iv) mandates. The
procedure of a simplified naturalisation is not applicable to all stateless persons, but
only for “chosen stateless persons.” This provision gives preferential treatment tostateless persons born in Japan, and stateless persons born abroad are treatedcomparatively worse. Therefore, this can be discrimination by “country of origin” asprovided by Article 3 of the 1954 Convention, the non-discrimination principle.
Furthermore, there seems to be a gap between provisions in Japanese law and theissuance of identity papers provided in Article 27 of the 1954 Convention. Identity
papers are used within the contracting state to certify the identity of stateless persons,and they are issued to all stateless persons within the territory. 146 It is true that there
143 The Supreme Court (Petty Bench II), Judgment, 18 July 2014 (Heisei 26 nen). Hanrei Chihou Jichi No.
386, p. 78.
144 van Waas, supra note 104, p. 365. Although the article uses the phrase “assimilation”, it does not intend
to erase an identity according to Robinson. It means to integrate with society in terms of economic, socialand cultural perspective. Robinson, supra note 12, p. 64.
145 Sam Walker, Can Refugees Become Citizens of Uganda? Refugee Law Project, Briefing Paper July 2008,at http://www.refugeelawproject.org/files/briefing_papers/RLP.BP0803.pdf, p. 5. Refugees are easier tonaturalise compared to aliens generally in the Republic of Austria, Kingdom of Denmark, Federal Republicof Germany and Kingdom of the Netherlands. Ibid. p. 5.
146 However, an issuance of identity papers does not influence the rights of contracting states to control theborder. Thus, it does not oblige contracting states to keep stateless persons within the border. Robinson,supra note 12, p. 50.

58

are residence cards pursuant to Article 19-3 of the ICRRA and special permanent
resident certificates pursuant to Article 7 of the Special Act on Immigration Control inJapan. However, they are only issued to aliens with resident status for a medium tolong term. Therefore, they are not issued to stateless persons with Temporary Visitor
status or stateless persons without resident status. So there is no Japanese law that
corresponds to Article 27 of the 1954 Convention.
(3) Rights and Protections of Applicants to the Statelessness Determination
The treatment of applicants to the statelessness determination is different inJapanese law to some of the practices of contracting states to the 1954 Convention andthe view of the Office of the UNHCR. Even in the laws of contracting states of the1954 Convention which establish the procedure for statelessness determination, thelegal status of applicants for the statelessness determination is not clearly provided for,and a unified state practice is not established. Yet, some states permit applicants to thestatelessness determination to reside during the period of the determination procedure
at the government’s discretion. In addition to this, the national laws of some states
explicitly provide the right to reside during the period of the determination
procedure. 147 UNHCR “Guidelines on Statelessness No. 3” 148 also states that
individuals awaiting a statelessness determination are “entitled, at a minimum, to allrights based on jurisdiction or presence in the territory as well as ‘lawfully in’rights.”149 State practice and the view of the Office of the UNHCR which recognise
some rights to applicants to the statelessness determination are reasonable because of
the declaratory effects of the statelessness determination and the responsibility ofcontracting states to identify stateless persons. Stateless persons do not become
stateless persons by a determination process. This idea entails that since applicants canbe stateless persons even before a determination, some of their rights as statelesspersons should be protected during the procedure. Such protection of applicants helps
to determine stateless persons appropriately.
UNHCR “Guidelines on Statelessness No. 3” lists some of the rights that need to
be protected for applicants to the statelessness determination. It is necessary to see thegap between the 1954 Convention and Japanese laws concerning freedom of
movement (Article 26 of the 1954 Convention) and protection from expulsion (Article

147 Concerning the state practice, see the following. Gyulai, supra note 66, pp. 131-132.
148 UNHCR “Guidelines on Statelessness No. 1” (definition of a stateless person), “Guidelines onStatelessness No. 2” (determination procedure for stateless persons), “Guidelines on Statelessness No.3”(status of stateless persons residing in the state) and “Guidelines on Statelessness No. 4” (every child’s
acquisition of nationality through Articles 1-4 of the 1961 Convention) were issued in 2012 based onsummary conclusions of the UNHCR Expert Meeting. They are “interpretative legal guidance” concerningstatelessness. UNHCR, “Guidelines on Statelessness No. 1: The Definition of ‘Stateless Person’ in Article
1(1) of the 1954 Convention relating to the Status of Stateless Persons” (2012), preamble, at
http://www.refworld.org/docid/4f4371b82.html.
149 UNHCR, supra note 16, para. 26.

59

31 of the 1954 Convention). Particularly Article 31, which provides that contracting
states “shall not expel a stateless person lawfully in their territory”, is a basis toprotect stateless persons’ fundamental freedoms comprehensively. Since an expulsionof aliens is permitted under general international law, the article was introduced to the1954 Convention to control it for stateless persons.150 According to a Moldovan law,applicants to the statelessness determination possess the right to reside in the territoryof the state, and expulsion is allowed only on the grounds of national security or
public order.151 Similarly, concerning the suspension of the procedure of deportation
and release from detention, a Filipino law explicitly states the following:152[The agency to determine stateless persons] shall notify theCommissioner of the receipt of the application. Following receiptof the notice, any proceeding for the deportation or exclusion of the
Applicant and/or his or her dependents shall be suspended.
If the Applicant and/or his or her dependents is/are in detention, theSecretary, subject to the conditions that he or she may impose, may
direct the Commissioner to order his or her and/or their release.
As has been noted repeatedly, Japan does not have a determination system toidentify stateless persons aiming at a protection of stateless persons. Thus, there are noconcepts such as applicants to the statelessness determination and persons seeking thestatelessness determination. As a result, there is no precondition to establish
procedures or practices to treat them as people who are “lawfully in” the territory.
Even if there were aliens without resident status who seek to be protected as statelesspersons, they would have no chance to possess resident status due to theirstatelessness under Japanese law. Article 24 of the ICRRA concerning deportation and
Articles 27 to 53 providing a procedure for deportation can be legally applied topotential stateless persons. The target of Article 24 of the ICRRA, which lists grounds
for deportation, is a general alien, and aliens who seek to be protected as statelesspersons are not an exception. Once a deportation order is issued, indefinite detention
is possible, and freedom of movement is restricted. 153
Recently, there have been judicial and administrative practices that attempt toshorten the legal distance between the 1954 Convention and Japanese law. First, twoaliens, who had been detained at East Japan Immigration Detention Center, brought a
lawsuit seeking to revoke issued deportation orders which recognised Vietnam as their
150 Robinson, supra note 12, p. 60.
151 Gyulai, supra note 66, p. 132.
152 Odagawa, supra note 71, p. 39.
153 As a reference to general aliens, see the following. Koichi Kodama, Sosuke Seki and Mitsuru Namba(eds.), Konmentaru Shutsunyuukoku Kanrioyobi Nanmin Nintei Hou 2012 [Commentary: Immigration
Control and Refugee Recognition Act 2012]. (Gendai Jimbunsha, 2012), p. 250.

60

nationality and a deportation destination. 154 The plaintiffs were born in Thailand toVietnamese refugees who arrived in Thailand through Laos during the First Indochina
War. Around 1990, they arrived in Japan with the forged passports acquired from abroker, and they were issued deportation orders as illegal stayers in 2008 which statedVietnam as the deportation destination. Since they believed that their deportation
destination should be Thailand, not Vietnam, they agreed to pretermit the procedure toseek a special permission to stay and renounced the right to request a hearing.
However, they were not deported to Vietnam even after deportation orders were issued,
and their detention continued. The court stated that they renounced the right to request
a hearing because they wrongly assumed that Thailand is the deportation destination.
It concluded that the plaintiffs’ Vietnamese nationality is not evident, so an issuance ofdeportation orders which show Vietnam as the deportation destination is illegal. Later,
Special Permission to Stay and a resident status were granted to them. This is a casewhere the involvement of the judiciary prevented a continuation of the detention of
possible stateless persons as the result even without a system and procedure to
determine stateless persons.
This judgment seems to have influenced administrative practices to some extent.
From her experience as a representative since 2008 for procedures to acquire Special
Permission to Stay, Fumie Azukizawa, attorney-at-law, has found 26 children of
Vietnamese refugees born in Thailand in Japan. Since the finalisation of the plaintiffs’
victory in August 2010, their long-term detention has not been reported.155 This
practice is supported by the words of the official of Immigration Bureau, Ministry ofJustice:156
If a deportation is not possible in the case that nationality is notverified, an administration can do nothing but to end the detention
realistically. If the state which seems to be his or her native state
does not accept him or her, the special circumstances of each case areconsidered from a humanitarian perspective. So we are not aware ofdisadvantages such as a long-term detention.
Nevertheless, it is too early to judge whether this practice will be continuous andcertain.

3.3. Conclusion
Japanese laws already establish provisions that conrrespond to many rights and
154 Tokyo District Court, Judgment, 19 February 2010 (Heisei 22 Nen). H.T. No. 1356, p. 146.
155 Presentation made by Ms. Fumie Azukizawa, attorney-at-law, at Study Group on Statelessness in Japan(Mukokuseki Kenkyuukai) on 25 July 2014.
156 Interview with the official of Immigration Bureau, Ministry of Justice (21 January, 2015).

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protections listed in the 1954 Convention. When stateless persons possess certain
resident statuses, most of the rights in the 1954 Convention are guaranteed by
Japanese laws. In contrast, many rights in the 1954 Convention are not guaranteed tostateless persons without resident status. A guarantee of the rights in the 1954
Convention for stateless persons mostly depends on the resident status.
There are several points for discussion. First, the subject of the Public Assistance
Act is limited to Japanese nationals. Thus, even if stateless persons with resident
status receive a benefit in practice, there is no legal basis to sue the government if it
becomes unavailable later. Therefore, the Public Assistance Act is not compatible withthe labour legislation and social security mandates (Article 24 of the 1954
Convention).
Second, regardless of resident status, there are provisions which are incompatible
with the 1954 Convention. Concerning the facilitation of naturalisation (Article 32 of
the 1954 Convention), the requirements for simplified naturalisation are different
between stateless persons born in Japan and other stateless persons. This may not becompatible with the principle of non-discrimination (Article 3 of the 1954
Convention; it is particularly a discrimination by “country of origin” as provided in
Article 3). Furthermore, although identity papers should be issued to any statelessperson in the territory of the contracting state (Article 27 of the 1954 Convention),they are not issued to stateless persons in Japan with the status of Temporary Visitor orstateless persons without resident status. Here is a divergence between the 1954
Convention and Japanese law.
Third, Japan does not have a system which grants resident status on the grounds
only of statelessness. Also, there is no factor which connects stateless persons andprotection pursuant to Japanese laws. Furthermore, there is no such concept of persons
awaiting the statelessness determination or applicants to the statelessness
determination given the situation in which Article 1 of the 1954 Convention (thedefinition of stateless persons) is not incorporated into Japanese laws, and there is anabsence of a procedure to determine stateless persons. Therefore, freedom of
movement (Article 26 of the 1954 Convention) and a prohibition of expulsion (Article
31 of the 1954 Convention) for persons awaiting the statelessness determination orapplicants to the statelessness determination are not even discussed. The absence of adefinition and a procedure for the statelessness determination are linked here. The
practice of some contracting states and the view of the Office of the UNHCR imply
that some rights should be guaranteed to applicants to the statelessness determination.
Specifically, they are treated the same as persons lawfully in the territory, and theirfreedom of movement is recognised. Some governments refrain from expelling
applicants to the statelessness determination. Current Japanese laws and regulations
do not accord with these state practices or the view of the Office of the UNHCR.
Although there is a new practice in the judiciary and administration, its certainty
cannot be judged at this moment.

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Chapter 4: Prevention and Reduction
4.1. Introduction
As we have examined in Chapter 1, a movement to prevent statelessness ininternational law became evident by the 1930 Convention, and after World War II the
1961 Convention was adopted after deliberations in the International Law
Commission and an international conference of plenipotentiaries. The 1961
Convention attempts to reduce statelessness by preventing future statelessness.
The Nationality Act is the most relevant Japanese law to the 1961 Convention.
Even before 1899, the year in which the Nationality Act was first enacted in Japan,
there was legislation concerning nationality. The first piece of legislation was the“Provisions Permitting Marriage with an Alien Person” (Proclamation No. 103 of theGreat Council of State) in 1873. Although it does not concern the acquisition or loss ofnationality generally, it provided for women married to Japanese men and alienhusbands of Japanese women to acquire Japanese nationality, and Japanese women
who marry aliens lose their Japanese nationality. It also stipulated that nationality canbe restored when Japanese nationality is lost by marriage.157
After the Constitution of the Empire of Japan (Meiji Constitution) was enacted in
1889, the Nationality Act (the former Nationality Act) was enacted pursuant to Article
18 of the Meiji Constitution, which provided that “[t]he conditions necessary for beinga Japanese subject shall be determined by law.” The Act stipulates that Japanesenationality can be acquired if the father is a Japanese national at the time of birth(Article 1); if the father is unknown or stateless, and the mother is a Japanese national(Article 3); or if a child is born in Japan and both of his or her parents are unknown orstateless (Article 4). Based on jus sanguinis through the paternal line, the former
Nationality Act prevented statelessness by being applied together with jus sanguinis
through the maternal line and jus soli.158
Article 10 of the Constitution, enacted in 1946, states that “[t]he conditions
necessary for being a Japanese national shall be determined by law.” The Nationality
Act enacted in 1950 (the present Nationality Act) is supported by Article 10 of theConstitution. Although the existing jus sanguinis through the paternal line wascontroversial in relation to gender equality during the drafting process, a fundamental
change did not take place since jus sanguinis through the paternal line was recognised
to be beneficial in preventing multiple nationalities.159 Thus, although children born
to Japanese men and foreign women could acquire Japanese nationality, children born
157 Shoichi Kidana, Chikujyou Chuukai Kokuseki Hou [Commentary on the Nationality Act]. (Nihon Kajo
Shuppan, 2003), pp. 26-27. In the proclamation, the wording “Japanese nationality” is not used but
expressed as “status for being Japanese.” Ibid, p. 27.
158 Ibid, p. 32.
159 Ibid, pp. 37-38.

63

to foreign men and Japanese women could not.
However, jus sanguinis through the paternal line became the subject of alegislative review, and the Nationality Act was drastically amended in 1984 (coming
into effect in 1985). The amendment was triggered by the Japanese signature to
CEDAW in 1980.160 The international trend on gender equality impacted on Japan,
and the amendment of laws in other states which took jus sanguinis through thepaternal line assisted in the amendment of a part of the Nationality Act in 1984. As aresult, Japan has shifted to jus sanguinis through both paternal and maternal lines. 161
It is also notable that a court judgment became a trigger to amend the Nationality
Act to prevent statelessness. Article 3 of the Nationality Act had provided that whenchildren are born to Japanese men and foreign women out of wedlock, areacknowledged after their birth, and acquire the status of children born in wedlock as aresult of their parents’ marriage (Article 3(1)), they can acquire Japanese nationality ifthey notify the authorities before reaching twenty years of age (Article 3(2)). In otherwords, children acknowledged by Japanese fathers before their birth could acquire
Japanese nationality from the time they were born, but if childrens’ parents were notmarried, they could not acquire Japanese nationality even if they were acknowledged
after their birth. Regarding this, the Supreme Court stated that it is unreasonablediscrimination when a child cannot acquire Japanese nationality because of the“parents’ status about which the child cannot do anything,” even if he or she builds aparent-child relationship with the Japanese man. The Court then judged Article 3(1) of
the Nationality Act unconstitutional in 2008.162 Based on this, the Nationality Act wasamended in 2008 (came into effect in 2009), making children acknowledged after theirbirth able to acquire Japanese nationality even if their parents are not married.163
The judiciary has also provided an interpretation of the Nationality Act that isrelevant to the prevention of statelessness. Article 2(iii) of the Nationality Act
provides that a child acquires Japanese nationality by birth “[i]f [the child is] born inJapan and both of the parents are unknown or are without nationality” to prevent
statelessness following Article 4 of the former Nationality Act. In a trial which
disputed the meaning of “the parents are unknown” (the so-called Andrew Case), thejudgment stated that “merely proving the existence of a situation that implies somepersons are very likely to be a child’s father or mother” is not enough to establish achild’s parents, but it is necessary to “identify that a person is the child’s father or

160 Article 9(1) of the CEDAW provides that “[s]tates Parties shall grant women equal rights with men toacquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien
nor change of nationality by the husband during marriage shall automatically change the nationality of thewife, render her stateless or force upon her the nationality of the husband.” Also, Article 9(2) states that“[s]tates Parties shall grant women equal rights with men with respect to the nationality of their children.”
161 Kidana, supra note 157, pp. 40-42.
162 The Supreme Court (Full Bench), Judgment, 4 June 2008 (Heisei 20 Nen). Shumin No. 228, p. 101, at
http://www.courts.go.jp/app/files/hanrei_jp/416/036416_hanrei.pdf.
163 Abe, supra note 7, p. 35.

64mother.”164 This implies that a child can acquire Japanese nationality unless thechild’s father or mother is identified, since both of the child’s parents are unknown.
The main rules of the current Nationality Act are Articles 1 to 20. Articles 2 to 9
and 17 provide the grounds for the acquisition of nationality; Articles 11 to 13 address
the loss of nationality; and Articles 14 to 16 address a selection of nationality. The
following sections cover convergences and divergences between the main substantial
provisions of the 1961 Convention and Japanese law (particularly the Nationality Act).

4.2. Issues
4.2.1. Convergences(1) Birth and Children
Article 1 of the 1961 Convention is a general provision of conferment of
nationality. Article 1(3) of the 1961 Convention provides for a child’s acquisition of
the mother’s nationality when the child is born in wedlock in the territory of thecontracting state. This provision attempts to prevent statelessness by a conferment of
the mother’s nationality. In the era when jus sanguinis through the paternal line wasdominant worldwide, a stateless child would be born, for instance, when the father did
not possess any nationality.
Article 2(i) of the Nationality Act is a relevant Japanese law to Article 1(3) of the1961 Convention. It provides that Japanese nationality is granted to a child wheneither the father or mother is a Japanese national. 165 Since the article allows a child toacquire the mother’s nationality, the provision of Article 1(3) of the 1961 Convention
is satisfied. Furthermore, Article 3(1) of the Nationality Act allows an acquisition ofnationality by notification of a child acknowledged by the Japanese father or mother.
This provision of acquisition of nationality by acknowledement presupposes persons
who cannot be covered by Article 2 of the Nationality Act, and as a result, it expands
the scope of the conferment of Japanese nationality. In addition, concerning
acknowledgement by the mother, since a mother-child relationship is acknowledgedby the fact of childbirth, the child can acquire nationality. 166 Thus, opportunities to
164 The Supreme Court (Petty Bench II), Judgment, 27 January 1995 (Heisei 7 Nen). Shumin Vol. 49 No. 1,
p. 56.
165 As has been noted earlier, ratification to CEDAW became the turning point by which Article 9(2) of
CEDAW (gender equality concerning a child’s nationality) and the Nationality Act were made compatible.
Specifically, Article 2(i) of the current Nationality Act reflects jus sanguinis through both the paternal andmaternal lines, not only the paternal line. Also, since it is commonly understood that “parents” is used here
in its legal sense (Abe, supra note 7, p. 34.), it corresponds to the provision in the 1961 Convention whichstates that nationality is granted to children in wedlock.
166 The mother-child relationship between a mother and a child out of wedlock is acknowledged, in principle,
by the fact of childbirth even without acknowledgement by the mother. The Supreme Court (Petty Bench II),65

acquire nationality are broadened, and the Nationality Act fully covers Article 1(3) of
the 1961 Convention.
Article 1(4) of the 1961 Convention provides that either of the parents’nationality should be granted to a child if the child has passed the age to lodge anapplication of nationality or if the child has not fulfilled the required residence
condition. According to UNHCR “Guidelines on Statelessness No. 4,” this was createdas a subsidiary rule within Article 1.167 The Japanese Nationality Act does not set
conditions on the age or residency to lodge an application to nationality or residency
in the procedure to acquire nationality by birth. Therefore, such conditions are notnecessary to be considered in an application of Article 2(i), so there is no Japanese lawthat contradicts Article 1(4) of the 1961 Convention.
Article 4 of the 1961 Convention states that, concerning a child born outside of
the contracting state who would otherwise be stateless, the nationality that either ofthe parents possesses is granted to the child by birth automatically, or by a procedureprovided by national law. Article 2(i) of the Nationality Act is not restricted to birth
within Japan and is applied to children born outside of Japan. Thus, Article 4 of the1961 Convention is also covered by Article 2(i) of the Nationality Act.
(2) Loss of Nationality
Articles 5 and 6 of the 1961 Convention concern loss of nationality. Loss ofnationality is an automatic withdrawal of nationality by operation of law. 168 Article 5
provides that a loss of nationality resulting from a change of personal status isconditional upon the acquisition of another nationality. Accordingly, when nationality
is lost as a result of a change of personal status, including marriage and termination of
marriage and recognition and adoption of a child, such loss needs to be conditional
upon the acquisition of another nationality. 169 Articles 11 and 12 of the Nationality
Act, which address loss of nationality, are relevant to Article 5 of the 1961 Convention.
Article 11 of the Nationality Act concerns the loss of Japanese nationality when aJapanese citizen voluntarily acquires another nationality, and Article 12 of the Act isdevoted to a loss of Japanese nationality by a person born abroad to reserve Japanesenationality without an indication of the person’s intent. However, there is a gap

Judgment, 27 April 1962 (Shouwa 37 Nen). Minshu Vol. 16 No. 7, p. 1247, at
http://www.courts.go.jp/app/files/hanrei_jp/715/057715_hanrei.pdf.
167 In particular, the provision concerns the acquisition of nationality of a child born in the contracting state
to nationals of other contracting states, who has passed the age to lodge an application to nationality orcannot fulfil the required residence condition of the state in which he or she was born. UNHCR, supra note
18, para. 50.
168 UNHCR, Expert Meeting: Interpreting the 1961 Statelessness Convention and Avoiding Statelessness
resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”). (UNHCR, 2014), para. 9, at
http://www.refworld.org/pdfid/533a754b4.pdf.
169 This is supplemented by Article 9(1) of CEDAW which prohibits marriage from having an influence on
the nationality of women. Ibid, para. 34.

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between Article 5(1) of the 1961 Convention and Japanese practice. 170
Article 6 of the 1961 Convention states that if the national law provides for lossof nationality by a person’s spouse or children as a consequence of that person losing
or being deprived of that nationality, such a loss needs to be conditional upon his or
her acquisition of another nationality. 171 In Japanese law, no provision vitiates thenationality of a person’s spouse or child when that person loses or is deprived of his or
her nationality. The Nationality Act is only applied to the person himself or herself,
and the nationality of a spouse or children is not affected. Thus, there is not a gap
between the provisions of Article 6 of the 1961 Convention and Japanese law.
(3) Renunciation of Nationality
Article 7(1)(a) of the 1961 Convention provides that even if the state permits
renunciation of nationality, such renunciation is conditional upon a person’s
acquisition of another nationality. However, according to Article 7(1)(b), Article
7(1)(a) is not applied when it conflicts with freedom of movement, Article 13 of the
Universal Declaration of Human Rights (1948), or the right to seek asylum frompersecution, Article 14 of the Universal Declaration of Human Rights. This aims at
preventing the risk of freedom of movement or a right to seek asylum frompersecution being threatened because a person’s nationality cannot be renounced. The
relevant Japanese law is Article 22(2) of the Constitution, which grants freedom todivest nationality. According to the common understanding, the purpose of Article
22(2) is not to allow the freedom to be stateless. Yasuhiro Okudaira, a scholar on
constitutional law, points out two reasons. First, stateless persons would facedifficulties. Second, he states that “allowing [statelessness] […] costs a lot, and it
causes trouble for the whole society.” 172 This is embodied in Article 13 of the
Nationality Act which allows a renunciation of Japanese nationality to Japanesenationals having foreign nationality. Accordingly, Japanese nationality is lost only
when a person acquires another nationality, so Japanese nationality is not renounced if
it causes a person to be stateless. 173 In this way, Article 13 of the Nationality Act andArticle 7 of the 1961 Convention are consistent because possession of anothernationality is a precondition to renouncing nationality in both articles.
Some Japanese judgments strictly require that the necessary condition be met torenounce nationality. Judgment of the Lawsuit to Confirm Nationality 174 in 1992 heldthat even if an acceptance of an application to renounce Japanese nationality isformally valid, the renounciation of Japanese nationality is not effective when the
170 See section 4.2.2.(2).
171 This is also supplemented by Article 9 of CEDAW which provides that a child cannot become statelesswhen a parent loses his or her nationality.
172 Okudaira, supra note 94, p. 219.
173 Kidana, supra note 157, p. 382.
174 Tokyo High Court, Judgment, 15 April 1992 (Heisei 4 Nen). H.T. No. 802, p. 118.

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applicant does not concretely possess another nationality.
Article 7(2) of the 1961 Convention requires of states that the nationality of aperson who seeks to naturalise in a foreign state not be lost unless he or she acquiresor has been accorded assurance of acquiring its nationality. When a woman is married
to a man with another nationality, she may renounce her original nationality tonaturalise to the man’s nationality, in which case Article 7 is also important to preventthe woman’s statelessness.175 Article 11(1) of the Nationality Act corresponds to thisarticle. This article states that Japanese nationality is lost when a Japanese national
voluntarily acquires another nationality. It aims at a realisation of the single
nationality principle, and an automatic loss of Japanese nationality is allowed only
“when a Japanese national acquires another nationality by a naturalisation in anotherstate at his or her choice.” 176(4) Deprivation of Nationality
Deprivation of nationality refers to the withdrawal of nationality initiated by theauthority of the state.177 In other words, deprivation is a withdrawal of nationality
without due process. Article 8 of the 1961 Convention concerns the prohibition andallowance of this manner of deprivation of nationality. The principle of the article isthat nationality cannot be deprived if it would render a person stateless. Based on thisprinciple, deprivation of nationality is allowed if the nationality has been obtained bymisrepresentation or fraud or if the person has violated a vital interest of the state,such as involvement in the services of another state. However, deprivation ofnationality is exceptional, and it must be narrowly construed.178 When a deprivationof a child’s nationality acquired by misrepresentation or fraud is examined, Articles 1
to 4 of the 1961 Convention, Articles 7 and 8 of the Convention on the Rights of theChild and the best interest of the child need to be considered. 179
In Japanese law, there is no provision that prohibits a deprivation of nationality
explicitly. Yet, Articles 11 and 13 of the Nationality Act concern loss and renunciationof nationality, and a denial of nationality which contravenes these articles are illegal.
Therefore, it can be understood that Japanese law implicitly ensures that nationality is
not arbitrarily deprived by the authority of the state.
Article 9 of the 1961 Convention prohibits a deprivation of nationality of any
person or group of persons on the grounds of racial, ethnic, religious or political
discrimination. It is applied regardless of whether the person would be stateless or notby a deprivation of nationality. This provision was inserted to realise Article 15 of the
Universal Declaration of Human Rights. Today, it is supplemented by the International
175
176
177
178
179

UNHCR, supra note 168, paras. 42-43.
Kidana, supra note 157, p. 338.
UNHCR, supra note 168, para. 9.
Ibid, para. 53.
Ibid, para. 62.

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Convention on the Elimination of All Forms of Racial Discrimination (adopted in1965 and entered into force in 1969), CEDAW and the Convention on the Rights of
Persons with Disabilities (adopted in 2006 and entered into force in 2008). Article 9 of
the 1961 Convention prohibits a deprivation of nationality on a political or
discriminatory basis. 180 Article 14 of the Constitution, 181 which establishes theequality principle, corresponds to this article of the 1961 Convention, and a denial ofnationality without satisfying the criteria or procedures concerning loss of nationality
under the Nationality Act is illegal.
4.2.2. Divergences(1) Birth and Children
Article 1(1) of the 1961 Convention decrees that a contracting state shall grantnationality to an individual born in its territory who would otherwise be stateless. First,
the interpretation of “would otherwise be stateless” is an issue. Although there seems
to be no fixed definition, according to the UNHCR “Guidelines on Statelessness No.
4,” “the child would be stateless unless a Contracting State with which he or she has alink through birth in the territory or birth to a national of that State grants that child its
nationality.”182 Japanese law adopts the jus sanguinis principle, and a child born toeither a father or mother with Japanese nationality acquires Japanese nationality. On
the other hand, if a child is born to parents whose nationality is granted based on thejus soli principle in Japan, the child cannot acquire Japanese nationality. In this regard,
the child can be stateless, and there is no provision in Japanese law which prevents
such a situation. Thus, there is a gap between Article 1(1) of the 1961 Convention,
which prevents a child born in the territory to be stateless if he or she would otherwise
be stateless, and the Japanese Nationality Act, which lacks such a provision.
In fact, a child can be born stateless in Japan depending on the situation andprocedures of states which apply jus soli. Brazil in the past is an example. Brazil did
not automatically grant nationality to a child born to parents with Brazilian nationality
outside Brazil. In order to acquire nationality, he or she was required to visit Brazil tosatisfy the necessary procedure. 183 It is said that there are people who were influenced
by this Brazilian provision.
180 Ibid, paras. 70-71.
181 Article 14(1) of the Constitution provides that “[a]ll nationals are equal under the law and there shall be
no discrimination in political, economic or social relations because of race, creed, sex social status or family
origin.” (Translator’s note: The translator has modified a part of the translation of the Constitution as foundin the Japanese Law Translation Database System.)
182 UNHCR, supra note 18, para. 18. There is also no standard of proof to determine whether the child“would otherwise be stateless.” So if statelessness is proved to a reasonable degree, Article 1(1) is applied.
UNHCR, Ibid, para. 21.
183 However, as a result of an amendment to the law in 2007, a child does not need to visit Brazil to acquire
Brazilian nationality. Mark Manley, “UNHCR’s Mandate and Activities to Address Statelessness” in Alice69

It is true that Article 8(iv) establishes a simplified naturalisation to “[a] person
born in Japan, not having any nationality since the time of birth, and continuously
having a domicile in Japan for three years or more since that time,” 184 and acomplement to its subsidiary function may be expected. However, this is not aprevention measure at birth. Also, permission to be naturalised is at the discretion of
the Minister of Justice.185 Furthermore, he or she needs to be stateless for at least
three years. Thus, its compatibility with the principle of Article 1(1) of the 1961
Convention needs to be carefully examined.
Article 2 of the 1961 Convention provides that a foundling found in a contracting
state’s territory should be considered to have been born within that territory by parents
possessing the nationality of the state as long as there is no proof to the contrary. The
article itself does not grant nationality, but it establishes the basis for contracting statesin which foundlings are discovered to confer nationality to them. The article follows
the contents of the 1930 Convention, 186 and it aims at requesting contracting states togrant nationality to foundlings unless their status to possess another nationality isproved.187 The standard of proof to the contrary is not mentioned in the Convention,and it is left to contracting states. 188
No Japanese laws or regulations which accurately correspond to this article may
be observed. It is true that Article 2(iii) of the Nationality Act —which provides that achild born in Japan, both of whose parents are unknown, is Japanese national— is themost relevant provision for foundlings to acquire nationality. Although jus sanguinis isa principle in Japan, a compromise with the jus soli principle has been adopted eversince the provision on nationality in the former Civil Code to prevent statelessness as
an exception, as can be seen in Article 2(iii).189 Nevertheless, there is a gap between
Article 2(iii) of the Nationality Act and Article 2 of the 1961 Convention.
There is no definition of a foundling in the 1961 Convention, but according to
UNHCR “Guidelines on Statelessness No. 4,” foundlings are “children foundabandoned in the territory.”190 The 1961 Convention further provides that a child isconsidered to have been born within the territory of parents possessing the nationality

Edwards and Laura van Waas (eds.), Nationality and Statelessness under International Law (Cambridge
University Press, 2014), p. 6.
184 This article attempts to mitigate the conditions of naturalisation for persons born in Japan who would
otherwise be stateless and who have not acquired Japanese nationality by the jus soli principle, Article 2(iii)of the Nationality Act from the perspective of a reduction of statelessness. Kidana, supra note 157, pp.
323-324.
185 Ibid, p. 234.
186 Article 14 of the 1930 Convention provides that nationality is granted to a child born in the territory
whose parents are unknown.
187 Weis, supra note 17, p. 1082.
188 van Waas, supra note 104, p. 70.
189 Kidana, supra note 157, p. 108. Article 7(4) of the former Civil Code stated that when both of a child’s
parents are unknown, Japanese nationality is conferred to a child born in Japan, and if the place of birth isunknown, persons found in Japan are recognised to be Japanese. Ibid, p. 29.
190 UNHCR, supra note 18, para. 57. A child born in the territory without a legally recognised parent isincluded in the concept of a foundling. Ibid, para. 61.

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of the state in the absence of proof to the contrary. In contrast, wording such as“abandoned child” or “foundling” are not found in the Japanese Nationality Act.191
According to Article 2(iii) of the Nationality Act, when a child is born in Japan and hisor her parents are not known, he or she is a Japanese national, so most foundlings in
the 1961 Convention can acquire Japanese nationality in practice.
However, the subjects of the two articles, by their provisions, are divergent.
While the subject of the 1961 Convention is a foundling “found in the territory,” thesubject of Article 2(iii) of the Nationality Act is a child “born in Japan.” “[B]orn inJapan” means a fact of childbirth took place in Japan. According to the ordinary
meaning of the words, the scope of persons “found in the territory” and persons “bornin Japan” are different, and Article 2(iii) of the Nationality Act cannot be applied topersons born outside of Japan. Yet, a general interpretation of the article assumes achild both of whose parents are unknown to be born in Japan, even if the child cannot
have proven his or her birth in Japan or the place of birth unless evidence to thecontrary is found.192 In other words, while there is no provision which assumes that afoundling found in Japan is born in Japan, according to the view of a majority ofscholars, foundings found in Japan are considered to be born in Japan in the absenceof proof to the contrary because of the geographical circumstances of Japan. 193
Nevertheless, its purpose is not to consider persons born outside of Japan to be born inJapan. Thus, if it is obvious that a foundling was born outside of Japan, was brought toJapan after birth, and was found in Japan, viz., if his or her birth outside of Japan isproved, Japanese nationality is not granted. This is a gap in provisions between the1961 Convention and Japanese law. In the current situation in which humantrafficking is becoming more apparent under globalisation, this gap in provisions canbe a gap in reality.
According to Article 3 of the 1961 Convention, a child born on a ship or in anaircraft is consider to have been born in in the territory of the state to which the ship or
aircraft is registered. In case of birth on the high seas or in international airspace, thechild is likely to become stateless since he or she has a heavy burden of proof. The
purpose of the article is to prevent such a circumstance. 194 The article is applied whena ship or an aircraft is within the territory or on the high seas. Furthermore, it isapplied to the case when a ship or an aircraft is within the territorial waters or aharbour of another state or at an airport of another state. 195 In such cases, pursuant to
Article 1 of the 1961 Convention, if the child would otherwise be stateless, thenationality of a contracting flag state is to be granted.

191 Article 57 of Household Registration Act (also called Family Register Act) provides for the treatment ofan “abandoned child,” but it is a technical provision dealing with “abandoned child,” so it is not relevant
here.
192 Kidana, supra note 157, p. 201.
193 Ibid, pp. 201-202.
194 Ibid, p. 201.
195 UNHCR, supra note 18, para. 63.

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In Japanese law, there is no a clear provision on a grant of nationality in cases ofbirth on a ship or in an aircraft. There is no dispute that the cases in which persons
born not only in Japanese territory but also in its territorial waters and territorial air
are included in the meaning of “born in Japan” in Article 2(iii) of the Nationality
Act.196 The issue is birth on a Japanse ship or in a Japanese aircraft that is on the highseas or in international airspace, or within the territorial waters or a harbour of anotherstate or at an airport of another state. No laws or regulations explicitly mention
Japanese ships or Japanese aircraft as a part of Japanese territory, so there is a gap inprovisions between Article 3 of the 1961 Convention and Article 2(iii) of the
Nationality Act. The academic view is also diversified on this point. According to thegeneral understanding, birth on a Japanese ship or Japanese aircraft is considered to be“born in Japan,” and Article 2(iii) of the Nationality Act is applied, even if the birth
took place on the high seas or in international airspace.197 On the other hand, anotherview denies it based on the principle of jus sanguinis.198(2) Loss of Nationality
The UNHCR Expert Meeting 199 regards that the reasons of personal status(marriage, termination of marriage, recognition and adoption) listed in Article 5(1) 200of the 1961 Convention are not exhaustive but are examples. Thus, according to thisunderstanding, this article can be applied to a change in personal status such as adenial of paternity or maternity, annulment or revocation of a recognition or of an
adoption.201 It can also be applied when the family relationship which constituted thebasis of a child’s acquisition of nationality was registered erroneously. 202 Therefore,
even when an erroneous registration is revealed, the acquisition of another nationality
is conditional on whether the individual loses the nationality which he or she hadpossessed.
Some understand that, under the Japanese Nationality Act, persons who should
not be listed in the household registration (koseki) should be deleted from it. That is, if
196 Kidana, supra note 157, p. 201.
197 Ibid, pp. 200-201. When a child is born in a Japanese aircraft which is flying in international airspace, heor she is not recognised to be born “abroad” in the sense of Article 12 of the Nationality Act. Japaneseaircraft are recognised as “Japan.” Staff of the Civil Affairs First Division, Civil Affairs Bureau, Ministry ofJustice, “Koukuukinaide Shusshousita Kono Kokusekinitsuite [Nationality of Children Born in Aircraft],”
Koseki Jihou, No. 536 (2001), pp. 66-67.
198 Aritsugu Tashiro, Kokusekihou Chikujyou Kaisetsu [Commentary on the Nationality Act]. (Nihon Kajo
Shuppan, 1974), pp. 215-219.
199 Since there is no unified practice among contracting states to the Statelessness Conventions, and states
establish a determination procedure for statelessness, UNHCR organised a meeting from 2010 to 2013 tosolve the problem. Officers addressing statelessness in each government, NGOs, lawyers, scholars and UN
staff participated in the Expert Meeting. The views shared by many of the participants were written insummary conclusions. Kaneko, supra note 59, p. 46.
200 This provides that an acquisition of another nationality is a condition for losing nationality as a result of achange in personal status.
201 UNHCR, supra note 168, para. 37.
202 Ibid, para. 38.

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a person who should never have acquired Japanese nationality in the first place has
been recognised to possess it, he or she should be deleted from the household
registration, which has the function of officially proving Japanese nationality.203
The following case is an example that demonstrates the Japanese understanding.
“A” (a male child), born in the 1970s in Japan as a child in wedlock to “X” (aJapanese male that is not the biological father) and “Y” (a Korean female) was
acknowledged by “Z” (a Japanese male that is the biological father) in the 2010s toestablish a legal father-child relationship corresponding to reality soon after the
Judgment to Confirm an Absence of the Parent-Child Relationship with X. However,since the father-child relationship with X which was the basis of A’s acquisition ofJapanese nationality by birth was denied, A’s Japanese nationality was denied
retroactively from his birth, and he was deleted from the household registration. In
addition, acknowledgement does not have a retroactive effect (in relation tonationality), so his Japanese nationality was not recognised despite Z’s
acknowledgement. As a result, he was considered to be a “Korean illegal stayer” by
the ward office and Immigration Bureau in Japan. 204 Nevertheless, the Korean
government did not recognise A’s Korean nationality in reality, so he was renderedeffectively stateless.205 When A applied for a registration as an unregistered person,
the high court acknowledged that a loss of Japanese nationality would result in
considerable disadvantages because he has lived as a Japanese national for 30 years.
Yet, it stated that since there is no parent-child relationship with X, “there is no choice
but to say the basis of an acquisition of Japanese nationality is lost.”206(3) Territory
According to Article 10 of the 1961 Convention, if a territory is transferred, the203 Tetsuya Chino, “Nihon Kokusekito Kosekinitsuite [Japanese Nationality and Household Registration],”Houmu Tsuushin, No. 716 (2011), p. 8. See also the supplementary chapter concerning persons who are notregistered by household registration (mukosekisha).
204 “A” was later permitted to naturalise in Japan. When he applied for naturalisation, submission of acertificate of renunciation of Korean nationality was not required. This implies the possibility that theJapanese authority did not assume A acquired Korean nationality effectively.
205 Concerning the registration of unregistered persons, Tokyo Family Court, Decision, 30 August 2012
(Heisei 24 Nen (Ka) Shuuseki Kyoka Moushitate Jiken [Case to Request Permission for the Registration of
an Unregistered Person], No. 9809). Its appealed hearing, Tokyo High Court, Decision, 18 November 2013
(Heisei 25 Nen (Ra) Shuuseki Kyoka Moushitate Kyakka Shimpannitaisuru Moushitate Jiken [Case on
Appeal from the Decision to Reject the Request of Permission for the Registration of an Unregistered
Person], No. 1969). Its appealed hearing by permission, Tokyo High Court, Decision, 20 December 2013
(Heisei 25 Nen). Its hearing for a special complaint, The Supreme Court (Petty Bench I), Decision, 31
March 2014 (Heisei 26 Nen (Ku) Tokubetsu Koukoku Moushitate Jiken [Case on Special Complaint] No.
97). Also, a request to confirm nationality was taken to the court as a Case to Request to Confirm
Nationality No. 439, (Gyou-u) 2011 (Heisei 23 nen) to Tokyo District Court, but the judgment was not madebecause the case was retracted on 15 January 2013. Sources of this case were shared by Mr. Sosuke Seki,
attorney-at-law. “A” contested the existence of his Japanese nationality in the above case to request for theregistration of an unregistered person, but it was not recognised. He was later permitted to naturalise, thenhe re-acquired Japanese nationality after he was granted a Special Permission to Stay.
206 Tokyo High Court, Decision, 18 November 2013, supra note 205, p. 4.

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treaty provides that the transfer needs to include a provision which determines that no
person becomes stateless as a result of the transfer. Changes of territory have been themain reason for statelessness occuring, and the article aims to prevent it. 207 It requires
states to insert the provision into a treaty concerning the transfer of territory, andwhether or not this request needs to be included in national law depends on theconstitution and the system for implementing treaties of each contracting states of the1961 Convention. Thus, the absence of such a rule in national law does not directly
mean that there is a gap with the 1961 Convention.
Japan in the past had a case which could be recognised as a gap with theprovision of the 1961 Convention if one supposes that the Convention had existed
then. The Peace Treaty with Japan (San Francisco Peace Treaty, which entered into
force on 28 April 1952) did not mention changes of nationality by the transfer ofterritory, and no specific measure to prevent statelessness was taken. A Circular of the
Director-General of the Civil Affairs Bureau of the Attorney-General’s Office titled“Concerning Treatment of Nationality and Affairs of Household Registraion of
Koreans and Taiwaneses Following the Entry into Force of the Peace Treaty” (Minji
Kou No. 438) on 19 April 1952 stated that Korean and Taiwanese people lose their
Japanese nationality. 208 In the deliberation of the Diet, Mr. Kumao Nishimura,
Director-General of Treaties Bureau, Ministry of Foreign Affairs, noted that a choiceof nationality was not provided in the Treaty because Koreans in Japan had an optionof naturalisation if they desired to acquire Japanese nationality. 209 The
Attorney-General’s Office then also stated that the Japanese nationality of Korean andTaiwanese people would not be lost until the entry into force of the Peace Treaty, butthey were registered as aliens, and their rights to vote and rights to be elected weresuspended. On this issue, some point out that the Japanese nationality had been voided
even before the issuance of the circular.210
In the Lawsuit to Request Confirmation of Nationality in 2010,211 there was adebate on changes of nationality involving the attribution of sovereignty over persons
following a change of territory for political reasons. The plaintiff, a Japanese nationalborn in Kobe to “Koreans” who were residing in Japan with Japanese nationality,
claimed that his Japanese nationality was deprived by the “Circular on Treatment of
Nationality and Affairs of Household Registration of Koreans and Taiwaneses”
following the entry into force of the Peace Treaty. The circular addressed the treatment
207 Weis, supra note 17, p. 1084.
208 Masataka Endo, Kosekito Kokusekino Kingendaishi: Minzoku, Kettou, Nihonjin [Modern History ofHousehold Registration and Nationality: Ethnicity, Blood and the Japanese]. (Akashi Shoten, 2013), pp.
246-247.
209 1951 (Shouwa 26) Nen 11 Gatsu 5 Nichi, Dai 12 Kai Kokkai Sangiin Heiwa Jyouyakuoyobi Nichibei
Anzenhoshou Jyouyaku Tokubetsu Iinkai Kaigiroku, Dai 10 Gou [Minutes of the Special Committee on
Peace Treaty and Japan-US Security Treaty, House of Councillors, the 12th Session of the Diet. Vol. 10. 5
November, 1951], pp. 19-20.
210 Endo, supra note 208, pp. 231-239.
211 The judgment is the following. Tokyo District Court, Judgment, 20 July 2011 (Heisei 23 Nen). Westlaw
Reference Number: 2011WLJPCA07208004.

74

of the Japanese nationality of persons who should belong to Korea after therecognition of the independence of Korea. The court judged that the deprivation was
not against the Constitution because the plaintiff should be registered as a Korean, as achild of Koreans.212
Concerning the persisting state’s recognition of the independence of a partof the state, and the method to renounce sovereignty in such cases [,] […]it is difficult to recognise a fixed principle in international law, butconcerning the attribution of sovereignty over persons related to the
independence of Korea and persons relevant to it [,] […] by Article 2(a)of the Peace Treaty, as an international legal action, Japan made clear its
recognition of the independence of Korea, and at the same time, Japan
chose a method to renounce rights including sovereignty over Korea andKorean people […]According to this judgment, as a result of the recognition of the independence ofa part of the state, for instance in a case like this one where a recognition of the
independence of Korea and a renunciation of all rights over Korea are obvious fromthe wording of the Treaty, a deprivation or loss of nationality is recognised to be
inevitable. As emphasised already, the entry into force of the Peace Treaty with Japan
took place before the adoption of the 1961 Convention. However, it is a gap that
history teaches us. The situation resulted from a lack of consideration for statelessness
regarding the transfer of territory.

4.3. Conclusion
The general principle of prevention of statelessness that was realised in the 1930
Convention is incorporated into laws and regulations on the nationality of many states
including Japan. In fact, the Japanese Nationality Act pays attention to deprivation,and there is no gap in provisions with the 1961 Convention concerning it.
On the other hand, there is a distance between Japanese law and the 1961
Convention. Concerning provisions of the Convention on birth and children (Articles
1 to 4) and loss of nationality (Article 5), there are Japanese laws that are notcompletely compatible with the Convention. First, if a child is born in Japan to parents
whose nationality is passed through the jus soli principle, there is no Japanese law
which prevents the child from being stateless. Second, Japanese law does notaccurately meet the requirement to prevent foundlings “found in the territory” frombeing stateless. Third, Japanese law does not provide any specific provision which
212

Ibid. Also, see section 2.1. of the supplementary chapter.

75

grants nationality to a child born on a ship or in an aircraft. Fourth, Japanese law may
not be compatible with an interpretation such that an acquisition of another nationality
is conditional on whether or not the family relationship constituting the basis of achild’s acquisition of nationality was registered erroneously. 213

213 Chapter 3 of the report confirmed that resident status decisively affects the rights and protections ofstateless persons. How is resident status relevant to the 1961 Convention? Article 1(3) of the 1961
Convention, which decrees that a child in wedlock whose mother possesses the nationality of thecontracting state acquires the mother’s nationality, and Article 1(4) of the Convention, which lists theconditions by which a child is granted either of the parents’ nationality, both assume that a parent of thechild is Japanese. Thus, a particular relationship with the resident status is not found. Also, as stated
repeatedly, the 1961 Convention pays heavier attention to the prevention of future statelessness than to a
reduction of currently stateless persons (particularly Articles 4 to 9). Concerning foundlings in Article 2,since the parents are not known, the resident status is also not known in many cases. Furthermore, Article 3
requires states to consider children born in ships or aircraft to be born in the flag-state’s territory, and Article
10 is related to a conferment of a new nationality by a change of territory. So the cases in which an elementof resident status intervene seems to be limited.

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Chapter 5: Refugees and Human Trafficking
5.1. Introduction
Chapters 2 and 3 of this report sketched the gap between the 1954 Convention
and Japanese law. Is this gap narrowed by international instruments which are relevant
to Japan or Japanese law influenced by the international instruments? Namely, dointernational instruments supplement the insufficient protection of stateless persons
under current Japanese law? This chapter takes up legislation and judicial decisions
concerning refugees and human trafficking to consider this possibility.

5.2. Refugees
5.2.1. Stateless Persons in the Refugee Convention
There are people who have been deprived of their nationality by a state whichattempts to form and to exclude a lower class and people who cannot be granted anationality by the state for reasons of their ethnicity or religion. These people, who arestateless persons and refugees at the same time, may be protected by the Refugee
Convention. However, the protection of stateless persons under the Refugee
Convention is limited in the practice of its contracting states. The determination of thestatus of refugee in each state tends to exclude stateless persons from international
protection. One reason is the history of the legal separation between stateless persons
and refugees as observed in Chapter 1, and the political and humanitarian priority of
refugees. Practices in the UK, the US, Canada, Australia and New Zealand show thatstateless persons are excluded from protection by international human rights law andrefugee law as a result of a strict interpretation of Convention refugees. According toKate Darling, the Refugee Convention places a heavier burden on stateless persons
than on persons with nationality in proving refugee status. 214
A tendency to exclude stateless persons from the process of refugee statusdetermination in the above-mentioned states is observable in the context of states ofconsideration, of the possibility of return to the state of origin and of acause-and-effect relationship.215 One point this section discusses is the relationshipbetween discrimination which does not amount to persecution and stateless persons.
First, this chapter introduces the case of New Zealand, and then Japanese precedents
will be observed.
214 Kate Darling, “Protection of Stateless Persons in International Asylum and Refugee Law,” International
Journal of Refugee Law, Vol. 21, No. 4 (2009).
215 Arakaki, supra note 9.

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There are several comments to make before stepping into a main part of thischapter. First, as far as the author is aware of as of the writing of this report, there area limited number of cases in Japan which consider refugee status and statelessness.
Among judgments concerning the revocation and the declaration of nullity of denials
of refugee status, only two judgments introduced in Chapter 2 stepped into a
determination of the question of statelessness to some extent. 216 Second, the two
judgments in Japan show that stateless persons can be protected under the Refugee
Convention if they are refugees, but they are not automatically protected for thereason of being stateless. Third, the state which was being examined in the refugee
status determination was the state of habitual residence of those who were determined
to be stateless.
5.2.2. Discrimination which does not Amount to Persecution(1) The Case of New Zealand
The RSAA was an agency established in 1991 which dealt with appeals
concerning the refugee status determination.217 Although the Refugee Convention andother international conventions do not define “persecution” in the definition ofConvention refugees, the RSAA formulated the concept of persecution as “persecution= serious harm + the failure of state protection.”218 Also, as a method to visualise“serious harm,” it adopted an international human rights approach. At the very earlydays of the RSAA, human rights were classified into four categories. Rights enshrinedin the ICCPR, particularly, rights which need to be protected even in an emergency
situation (non-derogable rights), tend to be recognised as “core human rights.”
This international human rights approach was the basis for discouraging theprotection of stateless persons by the Refugee Convention. Since civil and politicalrights were emphasised in the concept of persecution, violations of social andeconomic rights were often recognised as “discrimination but not persecution.”
Stateless persons are on many occasions subjected to inequalities in opportunities foreducation, work, or social welfare benefits; procedural inconveniences such as being
denied the issuance of identity papers; and daily harassment of neighbours. These arecases of “low-level” discrimination which are relevant to social and economic
rights.219 When civil and political rights are emphasised, the plight which statelesspersons are facing can be entirely dismissed as discrimination which does not amountto persecution. For instance, a decision of the RSAA in 2004 implied thisunderstanding. In that case, the RSAA did not accept the claim of a stateless person
216 See section 2.4.1.
217 The RSAA finished its mission on November 2010, and its mandate was succeeded to the newly
established Immigration and Protection Tribunal. The RSAA dealt with more than 9,000 claims.
218 Refugee Appeal No.71427/99 [2000] NZAR 545.
219 Darling, supra note 214, pp.760-761.

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from Latvia.220
While it is certainly the case that the appellant has suffereddiscrimination, arbitrary interference with his home and privacy andsporadic low level assaults and harassment, the Authority concluded
that his past experiences do not meet this standard [of persecution].
While his experiences have plainly affected his life in significant
way (the enforced dissolusion of his marriage), he simply has not
suffered serious harm in the past to a level required to be categirised
as persecution.
[T]he appellant will no doubt encounter this on his return [to Latvia].
However mere discrimination, while unjustified does not amount topersecution.
(2) The Case of Japan
Regarding the interpretation of persecution, Japanese precedent on refugee statusdeterminations recognise only violations of freedoms relating to activities which
impact on life or body as persecution, and it hesitates to include violations of othertypes of freedom as persecution, such as economic freedoms. This implies that thescope of stateless persons to be protected as refugees is limited. It is true that a
judgment of the Tokyo District Court in 2010 determined that two of twenty plaintiffs(Rohingya people from Myanmar) are stateless and refugees. 221 One ground for thedetermination of their refugee status was a correspondence between their claim andthe concept of persecution. Persecution according to precedents is limited as follows.
“Persecution” is aggression or oppression which causes intolerable
pain, in general, and it is appropriate to recognise persecution as
representing a violation or oppression of freedom to life or physicalintegrity.
Regarding an understanding of “freedom” as a subject of a violation, the judgment
noted as follows:[According to Article 1A(2) of the Refugee Convention,] it isreasonable to consider this “freedom” to be freedom concerning
activities relevant to life, namely, freedom of physical activities.
[…] It is appropriate not to include freedom of economic activities
220
221

Refugee Appeal No. 73575 (30 June 2004), paras. 45, 48.
Tokyo District Court, Judgment, 29 October 2010 (Heisei 22 Nen), supra note 84.

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in the “freedom” above.
Likewise, the types of persecution are limited to violations of freedom of physicalactivities. As a result, the majority of stateless persons who suffer from violations of
economic and social rights and discrimination are excluded from the scope of the
Refugee Convention. The judgment provides the following general argument as to therelationship between the discrimination stateless persons face and their persecution.
Even if a majority of Rohingya people are not considered as
Myanmar nationals, or if discrimination and disadvantaged treatment
against Rohingya people exist, it is difficult to identify a fear of
being “persecuted” as [this judgment] interprets it by all Rohingya
people because they are Rohingya.
As can be seen, according to the understanding of the Japanese precedents,
refugee status is denied even if discrimination against stateless persons is a violationof human rights unless it amounts to persecution in the above meaning.
5.2.3. Cumulative Effects of Discrimination
The interpretation of persecution is different between New Zealand and Japan.
However, they are similar in the sense that both construct an argument by which
discriminatory treatment and violations of social and economic rights are not forms ofpersecution. All forms of discrimination are not equivalent to persecution, and“low-level” discrimination related to social and economic rights tends not to berecognised as persecution. To the extent this is a general tendency of the contracting
states of the Refugee Convention, an exclusion of stateless persons from the refugeeprotection system may not be a unique feature of Japanese practice.
On the other hand, there has been a parallel movement to challenge the tendency
to hesitate protecting stateless persons in the RSAA. This was an attempt to connect
persecution and discrimination. It is true that persecution and discrimination are
different, and a finding of discrimination itself is not enough to be recognised as a
refugee. However, by an assessment using a “cumulative effects of discrimination”
standard, discrimination can be considered to amount to persecution. According to this,situations considered to be persecution are not limited to a discrete loss of asignificant interests protected by law. A violation of rights which is considered a lossof a relatively minor interests or a slight suppression can be recognised as persecution
if there is an accumulation of assaults or a sum or collection of disadvantages
significantly affecting the individual.222
222 Osamu Arakaki, “Nyujirandoniokeru ‘Hakugai’ Gainenno Saikouchiku: Kokusai Jinken Kijyunno
Dounyu [Reconstruction of the Concept of ‘Persecution’ in New Zealand: An Introduction to the80The RSAA has utilised this interpretation to determine the refugee status ofstateless persons. Concerning the Bidoon appellant who left Kuwait,223 the RSAA’s
decision in 2004 stated the following, and the appellant was determined to be a
refugee.224
He [the appellant] was denied access to free education, health careand other social benefits, barred from employment, denied basic
official documentation, including a driver’s licence […]. [Thecurtailment of the right of bidoons to take up employment] further
renders remote any prospect of the appellant being able to lead anormal life in Kuwait, in the sense of marrying and independently
supporting a family of his own.
[…] The cumulative harm of the past discriminatory measuresagainst him – which effectively rendered him a non-person in his
own country – reached such a serious degree as to amount topersecution.
The international human rights approach that refugee law adopted tended tounderestimate the value of social and economic rights, and a higher standard was
required for a violation because it emphasised civil and political rights. 225 As a result,the predicament of stateless persons was not seriously considered in the field of
refugee protection. At the time, although the RSAA was not enthusiastic to include
stateless persons, there was also a challenge ocurring in the same period whichattempted to resist this tendency. Thus, there was not a unified practice. Japaneseprecedent on the relationship between refugee status and statelessness does not use
any standard similar to the cumulative effects of discrimination.

International Human Rights Standard],” in Nanmin Mondai Kenkyuu Foramu [Refugee Issues Research
Forum] (ed.), Nanminto Jinken: Shin Seikino Shiza [Refugees and Human Rights: New Century’s
Viewpoints]. (Gendai Jimbun Sha, 2001), pp. 101-102.
223 Bidoon or bidun means “without” in Arabic, and it is used to refer to stateless residents in Kuwait. There
are 100,000 Bidoons in Kuwait. According to reports of international NGOs, they are discriminated andface difficulties regarding legal status, issuance of identity papers, work, health care, marriage and travel.
See the following. Human Rights Watch “Prisoners of the Past: Kuwaiti Bidun and Burden of Statelessness”(June 2011), at http://www.unhcr.org/refworld/country,,,,KWT,,4df7191b2,0.html. Refugee International“Kuwait: Gender Discrimination Creates Statelessness and Endangers Families” (October 2011), at
http://www.refintl.org/policy/field-report/kuwait-gender-discrimination-creates-statelessness-and-endangers-families.
224 Refugee Appeal No. 74467 (1 September 2004), paras.75, 103.
225 Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation(Cambridge University Press, 2007), pp. 123-132.

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5.3. Human Trafficking
5.3.1. The Relationship between Statelessness and Human Trafficking
It is not difficult to imagine that there is a relationship between humantrafficking226 and statelessness. People without a link to any state who are drifting
between states are not protected and tend to be targets of human trafficking. At thesame time, human trafficking can cause statelessness. In states that possess anationality law discriminatory to women, if a woman becomes the victim of humantrafficking after she is married in the state, she loses her nationality. If she has a child,the child also loses its nationality.227 Particularly, if a victim of human trafficking isfrom a state which adopts the jus sanguinis principle, the possibility increases that
his or her child cannot acquire nationality from that parent victim of humantrafficking.228 Moreover, victims of human trafficking who were taken from otherstates will not possess or be deprived of official identity papers. Thus, proof ofnationality can be difficult.
5.3.2. Human Trafficking Protocol and Japan
International cooperation to deal with human trafficking began as part of a way todeal with organised crime. The World Ministerial Conference on OrganizedTransnational Crime held in Naples in 1994 became the trigger for a proposal toconclude an international treaty, and the intergovernmental ad hoc committee to drafta treaty and an annex protocol was established by the UN General Assembly in 1998.
In 2000, the UNTOC and the annex Human Trafficking Protocol were adopted.
As it is evident from the fact that the Human Trafficking Protocol is an annex
protocol of the UNTOC, the origin of the concern was that human trafficking is asource of funds for organised criminal groups which are covertly active across borders.
Thus, it is an international instrument which has its roots in international criminal law
rather than international human rights law. However, its purpose includes theprevention and combating of human trafficking, especially cases of women andchildren, and the protection and support of victims of human trafficking, respecting
their human rights. As a result, the Human Trafficking Protocol was made to include
226 According to Article 3(a) of the Human Trafficking Protocol, trafficking in persons refers to “therecruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position ofvulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, theexploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services,slavery or practices similar to slavery, servitude or the removal of organs.”
227 Anne T. Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010), pp.
158-159.
228 van Waas, supra note 104, pp. 180-181.

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provisions for human rights protection.
Japan signed the UNTOC in 2000 and the Human Trafficking Protocol in
2002.229 Facing international criticism, the Japanese government acknowledged that
there are many victims of human trafficking in Japan, and it began to consider theestablishment of relevant national laws from around 2003 aiming at a ratification of
the Human Trafficking Protocol. At first, emphasis was put on the punishment of
perpetrators of human trafficking, and not much attention was paid to the protection of
victims. Nevertheless, the “Inter-Ministerial Liaison Committee regarding Measures
to Combat Trafficking in Persons” was established to prevent human trafficking andprotect victims in April 2004. After that, “Japan’s Action Plan of Measures to Combat
Trafficking in Persons” was approved in the Ministerial Meeting concerning Measuresagainst Crime in December 2004. This plan recognises victims of human trafficking as
subjects of protection. In addition, it requires each ministry to consider victims’situations both psychologically and physically. Around the time of the action plan’s
approval, relevant ministries began to modify laws, ministerial ordinances andcirculars, and the government became involved in solving the human trafficking issue.
During this process, the Penal Code, Code of Criminal Procedure and Act against
Organised Crimes were amended in June 2005. An ordinance of the Ministry ofJustice was also amended to prevent the abuse of the “Entertainer” resident status. The
Act on Control and Improvement of Amusement Business, etc. was amended aswell.230
Although efforts were made, including changes in the law, as can be seen fromthe above, Japan is still recognised as a destination, source and transit state for victim
men and women, including children, of forced labour and sex trafficking. 231 The
reality of human trafficking in Japan is not easily observable, but according to the
Safety Division of the National Police Agency, there were 657 victims of humantrafficking from 2001 to 2013. 232 Their nationality includes Thailand, the Philippines,
Republic of Indonesia, Republic of Colombia and Japan,233 but stateless persons are
not reflected in the statistics.

229 However, Japan has not yet concluded the UNTOC since a national law to conclude it has not beenenacted in the Diet. Because of this, Japan has yet to conclude the Human Trafficking Protocol as well.
230 For the Japanese efforts concerning the Human Trafficking Protocol, see the following. Shiro Okubo(ed.), Ningenno Anzenhoshouto Hyuman Torafikkingu [Human Security and Human Trafficking] (Nippon
Hyoron Sha, 2007), pp. 195-196.
231 The US Department of State, “Trafficking in Persons Report” (June 2014), p. 220, at
http://www.state.gov/documents/organization/226847.pdf.
232 Safety Division, National Police Agency, “Heisei 25 Nenchuuniokeru Jinshin Torihiki Jihanno Kenkyo
Jyoukyoutounitsuite [Arrest of Human Traffickers in 2013]”, at
https://www.npa.go.jp/safetylife/hoan/h25_zinshin.pdf.
However, human trafficking takes place under-the-table, so the numbers in the statistics show merely a partof the reality.
233 Ibid.

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5.3.3. Immigration Control
Although 62 states prosecute perpetrators of human trafficking by developing
national laws which match the Human Trafficking Protocol, laws and policies toprevent the deportation of victims are lacking in 104 states.234 In Japan’s case, as has
been mentioned above, the ICRRA was considered to be a subject of amendment in2005. As a result, there is convergence between human trafficking and a protection ofstateless persons within the immigration control phase. Special Permission to Stay inJapan is granted to the victims of human trafficking. The Minister of Justice, under
Article 50(1)(iii), can grant permission to stay to a person without resident status if“[h]e or she resides in Japan under the control of another due to trafficking inpersons.” Under Article 12 (1)(ii) of the ICRRA, the Minister of Justice can grant
special permission for them to land. Article 7 of the Human Trafficking Protocol
requires contracting parties to “give appropriate consideration to humanitarian andcompassionate factors,” and to “consider adopting legislative or other appropriate
measures that permit victims of trafficking in persons to remain in its territory,
temporarily or permanently, in appropriate cases.” The amendment of the Japanese
ICRRA attempts to correspond to this.
Many rights and protections listed in the 1954 Convention are automaticallyrealised when resident status is granted to a stateless person; however, statelessness is
not considered to be a positive factor in granting resident status according to the“Guidelines on Special Permission to Stay in Japan.”235 On the other hand, Article 50(1)(iii) of the amended ICRRA demonstrates the possibility for a stateless person who
is a victim of human trafficking to be granted Special Permission to Stay in Japan.
The following points require particular consideration. First, it is the Minister ofJustice who can grant resident status, and the ICRRA allows the space for that
discretion to him or her. Thus, a victim of human trafficking who is a stateless person
can be subject to deportation by the provision. This framework of national law reflects
the framework of the Human Trafficking Protocol. Namely, the Protocol’s provision
reserves discretion on deportation to contracting states. The Japanese ICRRA is in linewith this. The second point concerns the operation of the provision. Usually, ashort-term resident status for “Designated Activities” (one month, three months or six
months) is granted to victims of human trafficking as a result of Special Permission to
Stay in Japan.236 This seems to be an operation which presupposes victims returning
234 The US Department of State, supra note 231, p. 7.
235 See section 3.3.2.(3).
236 Yoko Yoshida, “Jinshin Torihiki Higaishano Hogo Shiento Higai Boushi [Protection Assistance forVictims of Human Trafficking and Prevention of Harm]” in Shiro Okubo (ed.), Ningenno Anzenhoshouto
Hyuman Torafikkingu [Human Security and Human Trafficking] (Nippon Hyoron Sha, 2007), p. 243. “Hito,
Tokuni Jyoseito Kodomono Jinshin Baibainikansuru Tokubetsu Houkokusha Jyoi Nugoji Ezeiro Teishutsuno
Houkokusho [Report submitted by the Special Rapporteur on Trafficking in Persons, especially Women andChildren, Joy Ngozi Ezeilo] (A/HRC/14/32/Add.4)” p. 13, at
http://imadr.net/wordpress/wp-content/uploads/2012/09/T4-2-X7.pdf.

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to the state of their nationality. From the perspective of the protection of statelesspersons, if they are not allowed to stay longer than temporary period, the realisation of
the rights in the 1954 Convention will be limited.237 Third, even if stateless victims ofhuman trafficking could be protected as victims of human trafficking with Special
Permission to Stay for a medium to long term, they could not fully enjoy the rights in
the 1954 Convention.238
Immigration control is merely one perspective on human trafficking. As a state
which is criticised as a destination, source and transit state, Japan needs to strengthen
its prevention of human trafficking generally to break the link between statelessness
and the harm of human trafficking.

5.4. Conclusion
The first point of discussion was the possibility that stateless persons may belegally protected as refugees. There are few judgments in Japan which connect refugee
status and statelessness, and the sphere of stateless persons who may be protectedunder the Refugee Convention is limited. Japanese courts acknowledge that a majorityof Rohingya are stateless persons in Myanmar; they face limitations in their social
lives; and they are discriminated as a general statement. However, the Japanese courts’position is that discrimination does not amount to persecution, even though it is asignificant violation of human rights. Thus, refugee status is not granted to statelesspersons unless their claim matches the definition of persecution, which means aviolation or oppression of freedom to life or physical integrity. This definition ofpersecution rarely matches with the situation of stateless persons who tends to facediscrimination in an economic or social dimension.
The next point of discussion was the possibility that stateless persons may belegally protected as victims of human trafficking. Japan signed the UNTOC in 2000
and the Human Trafficking Protocol in 2002. In this context, relevant national laws
were established, and the ICRRA was also amended. As a result, for instance, thepossibility for stateless victims of human trafficking to be granted Special Permission
to Stay was explicitly mentioned in Article 50(1)(iii) of the ICRRA. Nevertheless, it is
the Minister of Justice who can grant Special Permission to Stay, and there is plenty ofspace for discretion. Thus, stateless victims of human trafficking can be subject todeportation according to the law. If they are only granted a short-term resident statusunder the operation of law, they will enjoy limited rights under the 1954 Convention.
Furthermore, even if they are granted Special Permission to Stay for a medium to longterm, they cannot fully enjoy the rights under the 1954 Convention.

237
238

See section 3.2.2.(1).
See Chapter 3.

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Conclusion
1. Recommendations
1.1. Examination and Development of Japanese Law
The findings of this report are written in Chapter 1. Since a summary of eachchapter is also found in each chapter’s conclusion, they will not be repeated here.
Concerning the divergences discussed from Chapter 2 to Chapter 5, what needs to bedone to fill the gap? This concluding chapter makes the following suggestions toJapanese government officials facing the issue of statelessness, the Office of the
UNHCR and civil society. The following suggestions are rough and unsophisticated,but the author would appreciate if they become a basis for discussions in the future.
What needs to be done if there is a willingness to protect the rights of statelesspersons and to eliminate statelessness in the first place? The following table lists
points to examine and develop Japanese law based on the conclusions of this report.
Table 2: Points to Examine and Develop Japanese Law relevant to the Statelessness
Conventions
1954 Convention
Provision of theConvention
Article 1(Definition ofStatelessPersons)

Japanese Laws
and Regulations
No Laws orRegulations

Article 24(LabourLegislation andSocial Security)
Article 27(Issuance of
Identity Papers)

Public AssistanceAct

No Laws orRegulations

Points to Examine and Develop Japanese
Law- Stipulate the definition of stateless persons inlaws and regulations (e.g., the ICRRA or
Nationality Act).
- Incorporate the definition of stateless persons
which is recognised as a part of customary law(Article 98(2) of the Constitution), and use it asa reference point in guiding protection in allareas in the judiciary and administration
relevant to statelessness.
- Amend the Public Assistance Act and enact
relevant laws so that stateless persons withresident status are subjects of the Public
Assistance Act.
- Amend the ICRRA and enact relevant laws to
issue identity papers to stateless persons withshort-term resident status (temporary visitor)

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Article 3(NonDiscrimination)
and Article 32(Facilitation of
Naturalisation)

and without resident status.
- Eliminate the condition of “born in Japan” andtake measures to open the procedure of
simplified naturalisation to all stateless persons
equally.

Article 8(iv) of
the Nationality
Act

1961 Convention
Provision of theConvention
Article 1(1)(Children Bornin the Territory)
Article 2(Foundling)

Japanese Laws
and Regulations
No Laws orRegulations

Article 3(Children Born
on a Ship or in an
Aircraft)

No Laws orRegulations(Article 2(iii) of
the Nationality
Act is relevant)No Laws orRegulations

Article 5(Loss of
Nationality by aChange of the
Personal Status)

Article 2(iii) of
the Nationality
Act

Points to Examine and Develop JapaneseLaw- Amend the Nationality Act to grant Japanesenationality to persons born in Japan who would
otherwise be stateless.
- Amend the Nationality Act to determine
foundlings “found in the territory” of Japan to
be born from Japanese nationals in the absenceof proof to the contrary.
- Amend the Nationality Act to consider birth on
a Japanese ship or in a Japanese aircraft as abirth in Japanese territory.

- According to an interpretation of Article 5,
loss of nationality needs to be conditional toacquisition of another nationality, even if thefamily relationship constituting the basis of achild’s acquisition of nationality was registerederroneously. Examine the possibility thatJapanese law is not compatible with thisinterpretation.

Concerning the examination and development of laws and regulations suggested
here, in connection with the 1954 Convention, in particular, the Immigration Bureauof the Ministry of Justice is the governmental agent which will play a significant role.
It is the main implementing agent of the Refugee Convention and the Refugee
Protocol. It is well informed about Japanese laws which are relevant to the 1954
Convention, and it has accumulated experience and knowledge. The Immigration
Bureau’s involvement in the discussion is indispensable to further investigate thecompatibility of the 1954 Convention and Japanese laws.

87Regarding further verification of convergences and divergences between theStatelessness Conventions (particularly the 1961 Convention) and Japanese law, andfor a discussion on the examination and development of laws and regulations, it isdesirable to have the involvement of the Civil Affairs Bureau of the Ministry ofJustice. The Civil Affairs Bureau of the Ministry of Justice concerns itself withnationality issues on a daily basis, and the Legal Affairs Bureaus and District Legal
Affairs Bureaus which deal with nationality issues are a part of the Civil Affairs
Bureau. The Civil Affairs Bureau is in a position where it can comprehend thepractical link between the Statelessness Conventions and the Nationality Act the mostaccurately. Among the eight items listed in Table 2, at least five of them (Article 32 of
the 1954 Convention and all the provisions of the 1961 Convention listed above) seemto be relevant to the Nationality Act. In order to consider an agenda on statelessness, it
is evident that the involvement of the agency which is working on nationality issues isnecessary, not only the agencies which are working on immigration control andrefugee status determinations.
This report particularly emphasised the gap between the Statelessness
Conventions and Japanese laws by their language. This was the first step to measure
the distance between the 1961 Convention and Japanese law, but it did not include
practice, such as the laws’ operation. Thus, the effects of laws and regulations which
are not compatible with the Statelessness Conventions in practice need to be examinedfrom the perspectives of expertise and practicality. Concerning this point, theImmigration Bureau and the Civil Affairs Bureau of the Ministry of Justice and the
Office of the UNHCR should exchange their views further. Joint research by Japaneseand non-Japanese scholars is also desireable.
1.2. Conferment of Resident Status
Concerning a majority of stateless persons in Japan, almost all rights andprotections under the 1954 Convention are guaranteed to persons with legal resident
status. However, without resident status, stateless persons cannot enjoy most of rights
and protections listed in the 1954 Convention. Thus, in practice, in order to realise therights and protection of a person who is determined to be stateless, resident status
should be granted to them, and a conferment of resident status equivalent to apermanent or long-term resident needs to be considered.
First, the ICRRA should be amended to guarantee a grant of Special Permission
to Stay to stateless persons without resident status at the phase of immigration control,
as well as guaranteed special permission for landing to stateless persons. This
amendment can bring the rights system of Japanese law to stateless persons. This
proposal is not completely unrealistic. For instance, statelessness is already a point toconsider for Special Permission to Stay as is illustrated by an official of the88Immigration Bureau of the Ministry of Justice:239
Statelessness itself is not a positive element in the “Guidelines on
Special Permission to Stay in Japan.” However, in a case where aperson lost a definite mother country as a result of statelessness,and if it is difficult to determine a base for the person’s life except
Japan, a renewal of resident status may be considered as a result of
humanitarian considerations referring to other positive and negative
elements. If the person intentionally does not acquire a nationality[despite the fact that the person can acquire it by a certain
procedure] and claims statelessness or the status of unknown
nationality scheming to live in Japan for a long term, the person is
not a subject of consideration.
With this trend in mind, a connection with the refugee status determination
system may be one way for the protection of stateless persons to be realised to someextent within the existing legal framework. One approach is that even if refugee status
is not granted to the person because the criteria are not satisfied, Special Permission to
Stay may be granted to stateless persons for humanitarian considerations. As is wellknown, persons who are not determined to be refugees can be granted resident status
for humanitarian reasons under the current system. 240 This seems to be mainly applied
to persons suffering from violent conflict in the current situation. 241 However, if
stateless persons are considered to be able to receive Special Permission to Stay basedon humanitarian considerations, persons who apply to the refugee status determination
can be protected to some extent.
A conferment of Special Permission to Stay to stateless persons through an
operation of the refugee status determination seems to be a realistic option in thecurrent Japanese situation. However, this remains a temporary or supplementary
option. Stateless persons who claim refugee status may be relieved by the operation of
the refugee status determination proposed above. On the other hand, stateless persons
who do not apply to the refugee status determination cannot receive any benefit from
it. A determination and protection of stateless persons should be open to all statelesspersons regardless of refugee status. Therefore, a complete picture of protection ofstateless persons needs to be designed before organising a system within the refugee
status determination. An appropriate procedure to determine stateless persons 242
239 Interview with an official of the Immigration Bureau of the Ministry of Justice (21 January 2015).
240 Also, the Minister of Justice can grant a change of status of residence or Special Permission to Stay even
if the person possessed resident status but cannot renew it, or if the person has not acquired resident status.
241 The Sixth Immigration Policy Discussion Panel and the Expert Meeting on the Refugee Recognition
System, “Nanmin Nintei Seidono Minaoshini Houkouseini Kansuru Kentou Kekka (Houkoku) [Results of
the Study on the Direction of the Revision of the Refugee Recognition System (Report)]” (2014), p. 8, at
http://www.moj.go.jp/content/001130133.pdf.
242 See section 2.3.

89

needs to be incorporated into the refugee status determination system, even if it is atemporary or a complementary measure.
1.3. Conducting a Mapping Study
One pressing agenda is to grasp the round numbers of persons who may beequivalent to meeting the concept of stateless persons under international law. The
Office of the UNHCR has already published a guidance document 243 on measuring
the round number, and this is useful to conduct such research.
Since the situation of statelessness in Japan and the reality of occurences ofstatelessness in Japan (as a result of an inability to prevent statelessness) are unknown,
an overall picture of the situation through concrete case studies is necessary. From a
mapping study, not only may divergences between the Statelessness Conventions andJapanese law be observed, but also divergences between the law and reality in Japan
special to statelessness. The conclusion of such a mapping study would provide thebasis for considering a concrete way to deal with statelessness in Japan. The author isconcerned about a situation where “invisible” stateless persons are left alone in thedark as if “they do not exist” without the implementation of such research.
1.4. Filling the Gap in Consciousness
Finally, the author would like to make additional remarks on what he has learnt
during the research of this report. What is the biggest gap between the Statelessness
Conventions and Japanese law? This is not found in substantial provisions, but in thepreambles of the Statelessness Conventions.
The High Contracting Parties, […] [c]onsidering that the United
Nations has, on various occasions, manifested its profound concern
for stateless persons and endeavoured to assure stateless persons thewidest possible exercise of these fundamental rights and freedoms,[…][c]onsidering that it is desirable to regulate and improve the status ofstateless persons by an international agreement, [h]ave agreed
follows:(Preamble of the 1954 Convention, emphasis added)
The Contracting States, […] [c]osidering it desirable to reduce
243 UNHCR, “Guidance Document on Measuring Stateless Populations” (UNHCR Geneva, 2011), at
http://www.refworld.org/docid/4f6887672.html.

90

statelessness […], [h]ave agreed as follows:(Preamble of the 1961 Convention, emphasis added)
What is found in the Statelessness Conventions but not in Japanese law? That is
an awareness and willingness to protect stateless persons and to prevent statelessness.
As a precondition to filling the gap between the Statelessness Conventions andJapanese law, and to assure the compatibility of each provision with laws andregulations, this awareness and willingness are significant. Without them, a substantial
gap between the Statelessness Conventions and Japanese law will not be filled. Also,
even if laws and regulations establish systems and procedures, their aim can becompletely different from the protection of stateless persons or prevention ofstatelessness.
Japan is too indifferent to statelessness. Although there is no doubt that the roleof the Japanese government is central with regards to paying attention to statelessness,at the same time, it is also vital to have the active involvement of civil society and the
Office of the UNHCR, which has expressed its willingness to end statelessness. In
particular, people’s minds can be changed if civil society and the Office of the
UNHCR expand the space in which various individuals can participate. The actors
able to play in the legal sphere on statelessness are not limited to states and publicauthorities. Even if it is only a particular civil society group or individual that has
unique ideas in its mind, these ideas may have an influence on the process ofdecision-making of the government through mutual social interactions. If such an
ideal is shared and perceived as a norm, the value is infiltrated into society and isinternalised. One of the best ways to overcome indifference to statelessness is tocreate a place to discuss each ideal with various actors and to persuade others.

2. Conclusion
This report concludes by sharing what the author realised personally. This begins
with a kind of sense of loss a person has who meets the criteria of “stateless persons,”
a legally constructed concept. One stateless person residing in Japan (who wasdetermined to be a refugee) said the following in a dialogue with the author. 244
I have lost my country twice. The first time was when I was betrayedand rebuked by the government of my country, and I escaped from it
as a refugee. I would not return to the country, and I lost my country
physically. The second loss of my country is a relatively recent one.
That is when I am told that I am a stateless person repeatedly, and I
244

Interview by the author (22 January 2015).

91myself finally accept it. There was no home country of mine in thefirst place. That was the moment that I have lost my country
psychologically. I feel a deep loneliness since then.
Law placed him in the category of stateless persons and imbued a particularmeaning to statelessness. This took the “home country of his imagination” away fromhim. What does the law give him from now? Even if a legal system to protect statelesspersons is established, a legal system itself cannot compensate a sense of loss andloneliness. The author asked him what he wanted. His answer was rather simple, “aconnection with the Japanese people.” Before discussing institutions and legal
structure, we need to think about how to face the pain of stateless persons who haveno home country. Without this sensitivity in our minds, the gap between statelesspersons and people in society will not be narrowed, even if Japanese law is legislated
which is compatible with the Statelessness Conventions.
Are we ready to share stateless persons’ pain, where we notice their pain as if wewere ourselves hurt? Do members of states share the pain of other communities?
Finally, can we share the pain of people suffering regardless of the state to which they
belong, or even if they do not belong to any state? Discussing statelessness seriously
will inevitably draw us to challenge our minds.

92Supplementary Chapter
The Unregistered: Focusing on Mukosekisha
1. Introduction
It is difficult to estimate the number of unregistered persons by the nature of the
problem, but according to UNICEF, 51 million children born in the world in 2007
were not registered.245 Birth registration is a condition to guaranteeing rights. Article
7(1) of the Convention on the Rights of the Child provides that “[t]he child shall be
registered immediately after birth.” Article 24(2) of the ICCPR also provides that“[e]very child shall be registered immediately after birth and shall have a name.”
Although the concreteness of a right to “be registered” is questionable, it is apparent
that unregistered persons face disadvantages throughout their lives. For example, abirth certificate is issued as a result of registration, and it proves that a child is legally
recognised by the government. If a child were not registered, that person would not beable to acquire a passport, open a bank account or be protected by the state.246
Generally speaking, recording the name of a child and parents, date of birth and theplace of birth form the basis for the protection of rights. 247
There are similarities between the situations that unregistered and statelesspersons face. Stateless persons are metaphorically considered as “invisible people,”and unregistered persons are also legally invisible. One group of people in Japan, themukosekisha, are persons who are not registered in a household registration. Bothstateless persons and mukosekisha face similar situations because they do not legallyexist due to their birth not being registered, and their situations are unstable. 248
Mukosekisha face disadvantages such as facing difficulties in acquiring a resident
record, an inability to open a bank account, difficulty taking out insurance, an absenceof a driver’s licence and an inability to exercise the right to vote. This chapter touches
upon unregistered persons, particularly mukosekisha, to supplement the main parts ofthis report.

2. Mukosekisha

245 UNICEF, Kodomotachino Tameno Zenshin Dai 8 Gou Kodomono Hogoni Kansuru Houkoku [Progress
for Children: A Report Card on Child Protection (No. 8)]. (UNICEF, 2009), p. 5.
246 UNICEF, “The Right to a Formal Identity,” at http://www.unicef.org/sowc06/profiles/unregistered.php.
247 Jonathan Todres, “Birth Registration: An Essential First Step toward Ensuring the Rights of All
Children,” Human Rights Brief, Vol. 10, No. 3 (2003), p. 32.
248 Tien-shi Chen (Lara), “Officially Invisible: The Stateless (Mukokusekisha) and the Unregistered(Mukosekisha),” trans. by David Chapman, in David Chapman and Karl Jakob Krogness (eds.), Japan'sHousehold Registration System and Citizenship. (Routledge, 2014), p. 224.

93

2.1. The History of Household Registration
Household registration (koseki) is an official document which registers the
personal status and its changes of Japanese nationals from birth to death. Household
registration was created for the purpose of calculating the population of Japanesenationals by registering personal status. The jinshin household registration of 1872 is
the foundation of the current system. Given that Western states developed aregistration system of personal status, the jinshin household registration was createdas a part of the Japanese modernisation process to calculate Japanese nationals. The
survey subject of jinshin household registration was a “house (ko)” led by ahouseholder. When people were registered by household registration, they wereconsidered as nationals. On the other hand, persons who were not registered in thehousehold registration were not considered nationals, and they could not be protectedby the Japanese state. When nationals were registered by household registration, they
were also considered as subjects of the emperor. Furthermore, it emphasised subjects’consideration as equals according to the idea of the equality of four social classes(samurai worriors, farmers, artisans and merchants). 249 However, it has been said thatthe aim of the household registration of that time was to calculate the number ofnationals rather than register the personal status of Japanese people per se.250 There
were many erroneous registrations in the jinshin household registration, so it wasdifficult to measure the actual number of nationals accurately. 251 The household
registration system was reformed in 1886, when characteristics of the current personal
status registration system began to be observed.252 The Household Registration Act
was enacted in 1898, the same year as the enactment of the former Civil Code (theMeiji Civil Code), and it has characteristics of both individual and household
registration, with emphasis on the “house (ie).” However, the element of individual
registration was abolished from the Household Registration Act in 1914, since theprocedure was redundant. 253 In the colonies, a similar system to household
registration was introduced. 254
In 1947, after WWII, a new Civil Code and Household Registration Act (alsocalled Family Register Act) was enacted. The major amendment was the omission of aline for class as a result of the abolition of the nobility system, and household
registrations began to be composed of a husband, wife and unmarried children, given
the dominance of the “principle to prohibit household registration for three

249 Endo, supra note 208, pp. 119-123.
250 Shozo Sawada, Gaidansu Kosekihou [Koseki Jyouhou Kanri Hen] [Guidance on Household Registration
Act [Information Control of Household Registration]]. (Teihan, 2002), pp. 46-47.
251 Endo, supra note 208, p. 129.
252 Sawada, supra note 250, p. 47.
253 Endo, supra note 208, p. 145.
254 Ibid, pp. 189-195.

94

generations.” 255 The current Household Registration Act was finalised after anamendment in 1976. The history introduced above shows how the household
registration system was operated in line with the maintenance of the “house” system.
In addition, the history of the colonial period shows a close relationship between
household registration and nationality. After the First Sino-Japanese War ended in
1895, the Qing Dynasty ceded Taiwan to Japan. Japan stated that if residents of
Taiwan did not leave from Taiwan within two years, Japan could consider the
Taiwanese residents to be subjects of Japan. Concerning Korea, which was annexed toJapan in 1910, its territory and nationals were considered to be transferred to Japan;
thus, residents in Korea were recognised to possess Japanese nationality.256 At thetime, systems similar to household registration were introduced to the colonies.
However, they operated under a different legal regime than the Household
Registration Act, and residents were considered as “foreign nationals.”257
From the end of WWII to the conclusion of the peace treaty with the Allied states,
the Japanese government regarded people from the former colonies to be Japanesenationals. However, the Act for a Middle Amendment of the Election Act of the Houseof Representatives promulgated on 17 December 1945 suspended the suffrage of
persons who were not subject to the Househould Registration Act, and foreign
nationals began to be registered as aliens. 258 This means that although foreign
nationals were still considered as Japanese nationals, the suffrage depended on theexistence of household registration. Household registration functioned to limit theirrights.
2.2. The Current Situation and Causes
History shows that household registration is not a mere procedure or a system ofregistration, but it has played a certain role in realising the protection of rights. Even
today, there are people who are not guaranteed their freedom and rights because they
are not registered in the household registration. Mukosekisha are one group of them.
Although there is no definition of mukosekisha in laws or regulations,“mukosekiji (mukosekisha who are children) issues” are defined as “issues wherechildren are not registered in the household registration because the people who
needed to notify the birth of their child […] did not notify it for some reason”
according to the Ministry of Justice. 259 In Japan, there is no document to prove
255 Bunmei Sato, Puroburemu Q&A Kosekitte Nanda [Sabetsuwo Tsukuridasu Mono] [Problem Q&A: Whatis Household Registration? [It Creates Discrimination]] (Supplementary and Revised Edition). (Ryokufu
Shuppan, 2010), p. 120.
256 Endo, supra note 208, pp. 161-164.
257 Ibid, p. 188.
258 Ibid, pp. 232-233.
259 Ministry of Justice, “Mimpou 772 Jyou (Chakushutsu Suitei Seido) Oyobi Mukokusekijiwo Kosekini
Kisaisurutameno Tetsudukitounitsuite [Article 772 of the Civil Code (System to Presume a Child was Born
in Wedlock) and a Procedure for Unregistered Children to Register in Household Registration],” at95

Japanese nationality officially except for household registration. That is to say,household registration “registers and notarises kinship from a person’s birth to death.
It is compiled for Japanese nationals, and it is also the sole system to notarise Japanesenationality.”260 Mukosekisha generally refers to persons who are not registered in thehousehold registration although they should be registered. According to a survey
conducted by the Ministry of Justice in 2014 for the first time, at least 279
mukosekisha were identified.261 However, at the time of the writing of this report,
only 187 local authorities, one-tenth of them, reported it.262 So the real number should
be greater than this.
The whole picture and pattern of occurences of mukosekisha are not apparent.
However, the “problem of the 300 days after divorce” which is rooted in Article 772
of the Civil Code, has drawn attention recently. According to Article 772(1) of the
Civil Code, a child conceived by a wife during marriage is presumed to be the child ofher husband. Article 772(2) also provides that “[a] child born after 200 days from theformation of marriage or within 300 days of the day of the dissolution or rescission of
marriage shall be presumed to have been conceived during marriage.” Therefore, achild born within 300 days of the day of the divorce is recognised as a child of theex-husband, and the notification of the birth is received based on that presumption. In
other words, the child is registered in the household registration of the ex-husband.263
In order to prevent this, mothers do not submit the notification of the birth. As a result,a mukoseki situation takes place.264
Recently, the administration has begun to take action relevant to the prevention ofmukoseki. For instance, if the notification of a birth is submitted along with the
document of a doctor certifying that a pregnancy was after a divorce, the presumptionof Article 772 is not applied pursuant to the 7 May 2007 Circular of the
Director-General of the Civil Affairs Bureau of the Ministry of Justice. In other words,
such a child will not be considered as the child of the ex-husband.265 The “problem of
the 300 days after divorce” became apparent due to the advancement of technology.
http://www.moj.go.jp/MINJI/minji175.html.
260 Ministry of Justice, “Koseki [Household Registration]”, at
http://www.moj.go.jp/MINJI/koseki.html.
261 The Sankei Shimbun, “Kosekino naihito, Zenkokude 279 Nin Miseinenshaga 9 Wari Jyaku [279 Persons
without Household Registration throughout Japan. Minors are around 90%],” at
http://www.iza.ne.jp/kiji/events/news/141024/evt14102421250045-n1.html.
262 Ibid.
263 When an ex-husband, who was presumed to be the father of a child, denies the parent-child relationshipwith the child, the child will not be registered with the ex-husband. If an actual parent-child relationship is
recognised by judges or conciliation, the child may be registered with the household registration of an actual
parent. Yoko Sakamoto, Houni Shirizokerareru Kodomotachi Iwanami Bukkureto No. 742 [Children
Dismissed by Law: Iwanami Booklet No. 742] (Iwanami Shoten, 2008), p. 9.
264 Ministry of Justice, supra note 259. In particular, if domestic violence is the reason for a divorce, theex-husband tends not to cooperate with the ex-wife and the child. In such cases, the parent-childrelationship with the ex-husband is not denied. As a result, in many cases, a notification of birth will not be
submitted. Sakamoto, supra note 263, p. 18.
265 However, if a certificate is not attached or a pregnancy commences before the divorce, the child ispresumed to be the child of the ex-husband.

96

The parent-child relationship can today be assessed based on genetic and medical
grounds. As a result, reality and law began to disagree. In order to deal with thechanges of such fundamental circumstances, there have been discussions for a flexible
operation of law and amendments to the law.

3. Other Unregistered Persons
Unregistered persons in Japan are not limited to mukosekisha. One category of
unregistered persons is those born to alien parents or for whom either of the parents
cannot confirm Japanese nationality. In principle, the household registration is notcompiled for children born in Japan to alien parents. However, pursuant to Article 25of the Household Registration Act, a notification of birth needs to be submitted to the
local authority. Furthermore, if the child is to stay in Japan for more than 60 days after
the date of birth, the child needs to submit an application for permission to acquire
resident status to a regional immigration bureau of the Ministry of Justice within 30
days after the date of birth (Article 22-2(2) of the ICRRA). Children can be legally
recognised by the Japanese state through these multiple registrations and applications
following their birth.
However, in the absence of such registrations and applications, there are people(particularly children) who do not legally exist and are not visible to the local
community. For instance, there are cases where alien parents without resident status
are missing, and their children are abandoned. Sometimes alien parents without
resident status do not submit a notification of birth fearing the risk that they and theirchildren may be deported. Moreover, the existence of an unregistered child hidden
within a family can become apparent by the communication of neighbours or by aclaim of abuse.266
Child guidance offices contact these children. Child guidance offices, locatedthroughout Japan, are notified of children requiring protection and protect thempursuant to Article 25 of the Child Welfare Act. When unregistered children are found,child guidance offices will become involved in the case based on this legal basis. So
child guidance offices themselves do not actively research household registration tofind unregistered children. However, child guidance offices actively intervene in casesof unregistered children if the case is within their mandate. For instance, if the parents
are identified, the child guidance offices encourage the parents to take the procedures
to register the child to the parent’s household registration, although the child guidance
offices cannot enforce parents to do so. 267 The author was impressed by the words of266

Cases of unregistered children born to parents who do not possess Japanese nationality were shared ininterviews with officers of several child guidance offices.
267 Interview with officers of several child guidance offices.

97one officer of a child guidance office.268
The core principle of our action is the best interest of the child.
Alien parents who did not register the birth of a child violated
Japanese law, and they neglected a necessary procedure. However,that is a circumstance of the parents, and their action took place for
their convenience. Children are innocent; so the parents’ penalty
should not be put on the children’s backs.

4. Conclusion
As mentioned at the beginning of this chapter, registration after birth is required
by Article 7(1) of the Convention on the Rights of the Child and Article 24(2) of the
ICCPR. It is remarkable that the provisions on registration after birth in both
Conventions are followed by “the right to acquire a nationality.” These provisions
imply a close relationship between registration after birth and nationality. In fact,
non-registration is relevant to statelessness, and it cannot be ignored from theperspective of the prevention of statelessness. Registration can be the first step toacquiring a nationality procedurally or in reality. Even if registration after birth is notdirectly related to acquisition of a nationality, it may certify that the person possesses
the necessary conditions to acquire a nationality. 269 Besides, many unregisteredchildren are poor and marginalised. If they become stateless as a result of
non-registration, it is rather difficult for them to break out of a vicious circle.270
It is not the aim of this report to consider whether mukosekisha are statelesspersons under international law. 271 However, the relationship between
non-registration and statelessness discussed above needs to be paid attention, and it issignificant from the perspective of the requirement of registration after birth ininternational law.

268 Interview with an officer of a local child guidance office (15 January 2015).
269 UNHCR Executive Committee of the High Commissioner’s Programme, Birth Registration: A topic
protected for an Executive Committee. EC/61/SC/CRP.5. 9 February 2010. para. 3. Jonathan Todres, supranote 243, p. 33.
270 Michael Miller, “Nationality and the Child,” (2004), p.3, at
http://www.coe.int/t/dghl/standardsetting/nationality/3_WEB%20E%20Rep.%2012.pdf.
271 As was observed in Chapter 2, Japanese law does not have a definition of stateless persons, so it is
impossible to conclude definitively whether mukosekisha is a stateless person or not under Japanese law.
However, a situation of mukoseki in Japan may have implications in considering the definition of statelesspersons under international law. For instance, it is worth considering, in a situation of attempting to provestatelessness, the meaning of the fact that it is difficult for people to acquire a passport proving theirnationality without household registration.

98

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Mukokusekijiwo Kosekini Kisaisurutameno Tetsudukitounitsuite [Article 772 of
the Civil Code (System to Presume a Child was Born in Wedlock) and a
Procedure for Unregistered Children to Register in Household Registration],” at
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http://www.moj.go.jp/MINJI/toukei_t_minj03.html.
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Gaidorain [Guidelines on Special Permission to Stay in Japan],” at
http://www.moj.go.jp/content/000007321.pdf.
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Jihanno Kenkyo Jyoukyoutounitsuite [Arrest of Human Traffickers in 2013]”, at
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Refugee Recognition System, “Nanmin Nintei Seidono Minaoshini Houkouseini
Kansuru Kentou Kekka (Houkoku) [Results of the Study on the Direction of the
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5607, Kan Jyou, Ministry of Justice].)

Documents of the UN and the League of Nations

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League of Nations, “Convention on Certain Questions Relating to the Conflict of
Nationality Law,” (1930), at http://www.refworld.org/docid/3ae6b3b00.html.
UN Doc. A/CN.4/50, Report on Nationality, Including Statelessness, 1952.
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National Level” (2012), at http://www.refworld.org/docid/5005520f2.html.
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Relating to the Status of Stateless Persons (UNHCR, 2014), at
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Avoiding Statelessness resulting from Loss and Deprivation of Nationality(“Tunis Conclusions”). (UNHCR, 2014), at
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hapter=5&lang=en.
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Minutes of the Diet
1951 (Shouwa 26) Nen 11 Gatsu 5 Nichi, Dai 12 Kai Kokkai Sangiin Heiwa
Jyouyakuoyobi Nichibei Anzenhoshou Jyouyaku Tokubetsu Iinkai Kaigiroku, Dai
10 Gou [Minutes of the Special Committee on Peace Treaty and Japan-US
Security Treaty, House of Councillors, the 12th Session of the Diet. Vol. 10. 5
November, 1951].
1956 (Shouwa 31) Nen 2 Gatsu 28 Nichi, Dai 24 Kai Kokkai Sangiin Bunkyouiinkai
Kaigiroku, Dai 5 Gou [Minutes of the Committee on Education and Culture,
House of Councillors, the 24th Session of the Diet. Vol. 5. 28 February, 1956].
1979 (Shouwa 54) Nen 6 Gatsu 5 Nichi, Dai 87 Kai Kokkai Sangiin Gaimuiinkai
Kaigiroku, Dai 15 Gou [Minutes of the Committee on Foreign Affairs, House ofCouncillors, the 87th Session of the Diet. Vol. 15. 5 June, 1979].
1981 (Shouwa 56) Nen 4 Gatsu 17 Nichi, Dai 94 Kai Kokkai Shuugiin Gaimuiinkai
Kaigiroku, Dai 10 Gou [Minutes of the Committee on Foreign Affairs, House ofRepresentatives, the 94th Session of the Diet. Vol. 10. 17 April, 1981].
1984 (Shouwa 59) Nen 5 Gatsu 10 Nichi, Dai 101 Kai Kokkai Sangiin Houmuiinkai
Kaigiroku, Dai 6 Gou [Minutes of the Committee on Judicial Affairs, House ofCouncillors, the 101st Session of the Diet. Vol. 6. 10 May, 1984].

Memorandum on Questions in the Diet (Shitsumon Shuisho)
Fukushima Mizuho Sangiin Giin “Mukokusekimondainikansuru Shitsumon Shuisho”
Nitaisuru, 2014 (Heisei 26) Nen 6 Gatsu 20 Nichiduke Seifu Toubensho (Naikaku
San Shitsu 186 Dai 127 Gou) [The Governmental Reply on 20 June, 2014 to the“Memorandum on Questions in the Diet concerning Statelessness Issues”
Submitted by Ms. Mizuho Fukushima, Member of the House of Councillors (No.
127, Questions in the House of Councillors, Cabinet)], at
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Japanese Precedents
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The Supreme Court (Full Bench), Judgment, 4 October 1978 (Shouwa 53 Nen).
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Tokyo High Court, Judgment, 15 April 1992 (Heisei 4 Nen). H.T. No. 802, p. 118.
The Supreme Court (Petty Bench II), Judgment, 27 January 1995 (Heisei 7 Nen).
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The Supreme Court (Full Bench), Judgment, 4 June 2008 (Heisei 20 Nen). Shumin No.
228, p. 101, at
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Tokyo District Court, Judgment, 19 February 2010 (Heisei 22 Nen). H.T. No. 1356, p.
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Tokyo District Court, Judgment, 29 October 2010 (Heisei 19 Nen (Gyou-u) No. 472,
etc.).
Tokyo District Court, Judgment, 20 July 2011 (Heisei 23 Nen). Westlaw Reference
Number: 2011WLJPCA07208004.
Tokyo Family Court, Decision, 30 August 2012 (Heisei 24 Nen (Ka) Shuuseki Kyoka
Moushitate Jiken [Case to Request Permission for the Registration of an
Unregistered Person], No. 9809).
Tokyo High Court, Decision, 18 November 2013 (Heisei 25 Nen (Ra) Shuuseki Kyoka
Moushitate Kyakka Shimpannitaisuru Moushitate Jiken [Case on Appeal from theDecision to Reject the Request of Permission for the Registration of an
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Tokyo District Court, Judgment, 19 November 2013 (Heisei 25 Nen). Westlaw
Reference Number: 2013WLJPCA11198001.
Tokyo High Court, Decision, 20 December 2013 (Heisei 25 Nen).
The Supreme Court (Petty Bench I), Decision, 31 March 2014 (Heisei 26 Nen (Ku)Tokubetsu Koukoku Moushitate Jiken [Case on Special Complaint] No. 97).
The Supreme Court (Petty Bench II), Judgment, 18 July 2014 (Heisei 26 nen). Hanrei
Chihou Jichi No. 386, p. 78.

107

Appendix I:
Convention Relating to the Status of Stateless Persons
Adopted at New York on 28 September 1954
Entry into force: 6 June 1960, in accordance with Article 39

PREAMBLE
The High Contracting Parties,
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights
approved on 10 December 1948 by the General Assembly of the United Nations have affirmed theprinciple that human beings shall enjoy fundamental rights and freedoms without discrimination,
Considering that the United Nations has, on various occasions, manifested its profound concern forstateless persons and endeavoured to assure stateless persons the widest possible exercise of thesefundamental rights and freedoms,
Considering that only those stateless persons who are also refugees are covered by the Convention
relating to the Status of Refugees of 28 July 1951, and that there are many stateless persons who are notcovered by that Convention,
Considering that it is desirable to regulate and improve the status of stateless persons by aninternational agreement,
Have agreed as follows:

CHAPTER I
GENERAL PROVISIONS
Article 1: Definition of the Term “Stateless Person”
For the purpose of this Convention, the term “stateless person” means a person who is not considered1

as a national by any State under the operation of its law.
2

This Convention shall not apply:(i)

To persons who are at present receiving from organs or agencies of the United Nations otherthan the United Nations High Commissioner for Refugees protection or assistance so long as they
are receiving such protection or assistance;(ii)

To persons who are recognized by the competent authorities of the country in which they havetaken residence as having the rights and obligations which are attached to the possession of the108

nationality of that country;(iii)

To persons with respect to whom there are serious reasons for considering that:(a)

They have committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provisions in respect of such crimes;(b)

They have committed a serious non-political crime outside the country of their residence
prior to their admission to that country;(c)

They have been guilty of acts contrary to the purposes and principles of the United Nations.

Article 2: General Obligations
Every stateless person has duties to the country in which he finds himself, which require in particularthat he conform to its laws and regulations as well as to measures taken for the maintenance of publicorder.

Article 3: Non-discrimination
The Contracting States shall apply the provisions of this Convention to stateless persons without
discrimination as to race, religion or country of origin.

Article 4: Religion
The Contracting States shall accord to stateless persons within their territories treatment at least as
favourable as that accorded to their nationals with respect to freedom to practise their religion andfreedom as regards the religious education of their children.

Article 5: Rights granted apart from this Convention
Nothing in this Convention shall be deemed to impair any rights and benefits granted by aContracting State to stateless persons apart from this Convention.

Article 6: The term “in the same circumstances”
For the purpose of this Convention, the term “in the same circumstances” implies that any
requirements (including requirements as to length and conditions of sojourn or residence) which theparticular individual would have to fulfil for the enjoyment of the right in question, if he were not astateless person, must be fulfilled by him, with the exception of requirements which by their nature astateless person is incapable of fulfilling.

109

Article 7: Exemption from reciprocity
1 Except where this Convention contains more favourable provisions, a Contracting State shall accord tostateless persons the same treatment as is accorded to aliens generally.
2 After a period of three years’ residence, all stateless persons shall enjoy exemption from legislative
reciprocity in the territory of the Contracting States.
3 Each Contracting State shall continue to accord to stateless persons the rights and benefits to which
they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention
for that State.
4 The Contracting States shall consider favourably the possibility of according to stateless persons, inthe absence of reciprocity, rights and benefits beyond those to which they are entitled according toparagraphs 2 and 3, and to extending exemption from reciprocity to stateless persons who do not fulfil
the conditions provided for in paragraphs 2 and 3.

Article 8: Exemption from exceptional measures
With regard to exceptional measures which may be taken against the person, property or interests ofnationals or former nationals of a foreign State, the Contracting States shall not apply such measures to astateless person solely on account of his having previously possessed the nationality of the foreign Statein question. Contracting States which, under their legislation, are prevented from applying the generalprinciple expressed in this article shall, in appropriate cases, grant exemptions in favour of such statelesspersons.

Article 9: Provisional measures
Nothing in this Convention shall prevent a Contracting State, in time of war or other grave andexceptional circumstances, from taking provisionally measures which it considers to be essential to thenational security in the case of a particular person, pending a determination by the Contracting State thatthat person is in fact a stateless person and that the continuance of such measures is necessary in his casein the interests of national security.

Article 10: Continuity of residence
1

Where a stateless person has been forcibly displaced during the Second World War and removed tothe territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be

110considered to have been lawful residence within that territory.
2

Where a stateless person has been forcibly displaced during the Second World War from the territoryof a Contracting State and has, prior to the date of entry into force of this Convention, returned there forthe purpose of taking up residence, the period of residence before and after such enforced displacement
shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence isrequired.

Article 11: Stateless seamen
In the case of stateless persons regularly serving as crew members on board a ship flying the flag of
a Contracting State, that State shall give sympathetic consideration to their establishment on its territory
and the issue of travel documents to them or their temporary admission to its territory particularly with aview to facilitating their establishment in another country.

CHAPTER IIJURIDICAL STATUS
Article 12: Personal status
1

The personal status of a stateless person shall be governed by the law of the country of his domicile
or, if he has no domicile, by the law of the country of his residence.

2

Rights previously acquired by a stateless person and dependent on personal status, more particularly
rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this benecessary, with the formalities required by the law of that State, provided that the right in question is
one which would have been recognized by the law of that State had he not become stateless.

Article 13: Movable and immovable property
The Contracting States shall accord to a stateless person treatment as favourable as possible and, inany event, not less favourable than that accorded to aliens generally in the same circumstances, as regards
the acquisition of movable and immovable property and other rights pertaining thereto, and to leases andother contracts relating to movable and immovable property.

Article 14: Artistic rights and industrial property
In respect of the protection of industrial property, such as inventions, designs or models, trade marks,

111

trade names, and of rights in literary, artistic and scientific works, a stateless person shall be accorded in
the country in which he has his habitual residence the same protection as is accorded to nationals of thatcountry. In the territory of any other Contracting State, he shall be accorded the same protection as isaccorded in that territory to nationals of the country in which he has his habitual residence.

Article 15: Right of association
As regards non-political and non-profit-making associations and trade unions the Contracting Statesshall accord to stateless persons lawfully staying in their territory treatment as favourable as possible, andin any event, not less favourable than that accorded to aliens generally in the same circumstances.

Article 16: Access to courts
1

A stateless person shall have free access to the Courts of Law on the territory of all Contracting
States.

2

A stateless person shall enjoy in the Contracting State in which he has his habitual residence the same
treatment as a national in matters pertaining to access to the Courts, including legal assistance andexemption from cautio judicatum solvi.

3

A stateless person shall be accorded in the matters referred to in paragraph 2 in countries other thanthat in which he has his habitual residence the treatment granted to a national of the country of his
habitual residence.

CHAPTER III
GAINFUL EMPLOYMENTArticle 17: Wage-earning employment
1

The Contracting States shall accord to stateless persons lawfully staying in their territory treatment asfavourable as possible and, in any event, not less favourable than that accorded to aliens generally in thesame circumstances, as regards the right to engage in wage-earning employment.

2

The Contracting States shall give sympathetic consideration to assimilating the rights of all statelesspersons with regard to wage-earning employment to those of nationals, and in particular of thosestateless persons who have entered their territory pursuant to programmes of labour recruitment or
under immigration schemes.

112Article 18: Self-Employment
The Contracting States shall accord to a stateless person lawfully in their territory treatment asfavourable as possible and, in any event, not less favourable than that accorded to aliens generally in thesame circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts
and commerce and to establish commercial and industrial companies.

Article 19: Liberal professions
Each Contracting State shall accord to stateless persons lawfully staying in their territory who holddiplomas recognized by the competent authorities of that State, and who are desirous of practising aliberal profession, treatment as favourable as possible and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances.

CHAPTER IV
WELFARE
Article 20: Rationing
Where a rationing system exists, which applies to the population at large and regulates the general
distribution of products in short supply, stateless persons shall be accorded the same treatment as
nationals.

Article 21: Housing
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations
or is subject to the control of public authorities, shall accord to stateless persons lawfully staying in theirterritory treatment as favourable as possible and, in any event, not less favourable than that accorded toaliens generally in the same circumstances.

Article 22: Public education
1

The Contracting States shall accord to stateless persons the same treatment as is accorded to nationals
with respect to elementary education.

2

The Contracting States shall accord to stateless persons treatment as favourable as possible and, inany event, not less favourable than that accorded to aliens generally in the same circumstances, withrespect to education other than elementary education and, in particular, as regards access to studies, the113

recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges andthe award of scholarships.

Article 23: Public relief
The Contracting States shall accord to stateless persons lawfully staying in their territory the same
treatment with respect to public relief and assistance as is accorded to their nationals.

Article 24: Labour legislation and social security
1

The Contracting States shall accord to stateless persons lawfully staying in their territory the same
treatment as is accorded to nationals in respect of the following matters:(a)

In so far as such matters are governed by laws or regulations or are subject to the control ofadministrative authorities: remuneration, including family allowances where these form part ofremuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work,
minimum age of employment, apprenticeship and training, women’s work and the work of young
persons, and the enjoyment of the benefits of collective bargaining;(b)Social security (legal provisions in respect of employment, injury, occupational diseases,
maternity, sickness, disability, old age, death, unemployment, family responsibilities and any othercontingency which, according to national laws or regulations, is covered by a social security
scheme), subject to the following limitations:(i)

There may be appropriate arrangements for the maintenance of acquired rights and rights incourse of acquisition;(ii)

National laws or regulations of the country of residence may prescribe special arrangements
concerning benefits or portions of benefits which are payable wholly out of public funds, andconcerning allowances paid to persons who do not fulfil the contribution conditions prescribed
for the award of a normal pension.

2

The right to compensation for the death of a stateless person resulting from employment injury orfrom occupational disease shall not be affected by the fact that the residence of the beneficiary is
outside the territory of the Contracting State.

3

The Contracting States shall extend to stateless persons the benefits of agreements concluded
between them, or which may be concluded between them in the future, concerning the maintenance ofacquired rights and rights in the process of acquisition in regard to social security, subject only to theconditions which apply to nationals of the States signatory to the agreements in question.

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4

The Contracting States will give sympathetic consideration to extending to stateless persons so far as
possible the benefits of similar agreements which may at any time be in force between such Contracting
States and non-contracting States.

CHAPTER V
ADMINISTRATIVE MEASURES
Article 25: Administrative assistance1

When the exercise of a right by a stateless person would normally require the assistance of authorities
of a foreign country to whom he cannot have recourse, the Contracting State in whose territory he isresiding shall arrange that such assistance be afforded to him by their own authorities.

2

The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under
their supervision to stateless persons such documents or certifications as would normally be delivered toaliens by or through their national authorities.

3

Documents or certifications so delivered shall stand in the stead of the official instruments delivered
to aliens by or through their national authorities and shall be given credence in the absence of proof tothe contrary.

4

Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged forthe services mentioned herein, but such fees shall be moderate and commensurate with those charged tonationals for similar services.

5

The provisions of this article shall be without prejudice to articles 27 and 28.

Article 26: Freedom of movement
Each Contracting State shall accord to stateless persons lawfully in its territory the right to choose
their place of residence and to move freely within its territory, subject to any regulations applicable toaliens generally in the same circumstances.

Article 27: Identity papers
The Contracting States shall issue identity papers to any stateless person in their territory who does
not possess a valid travel document.

Article 28: Travel documents

115

The Contracting States shall issue to stateless persons lawfully staying in their territory travel
documents for the purpose of travel outside their territory, unless compelling reasons of national security
or public order otherwise require, and the provisions of the Schedule to this Convention shall apply withrespect to such documents. The Contracting States may issue such a travel document to any other statelessperson in their territory; they shall in particular give sympathetic consideration to the issue of such a
travel document to stateless persons in their territory who are unable to obtain a travel document from thecountry of their lawful residence.

Article 29: Fiscal charges
1

The Contracting States shall not impose upon stateless persons duties, charges or taxes, of any
description whatsoever, other or higher than those which are or may be levied on their nationals in
similar situations.

2

Nothing in the above paragraph shall prevent the application to stateless persons of the laws andregulations concerning charges in respect of the issue to aliens of administrative documents including
identity papers.

Article 30: Transfer of assets
1

A Contracting State shall, in conformity with its laws and regulations, permit stateless persons totransfer assets which they have brought into its territory, to another country where they have been
admitted for the purposes of resettlement.

2

A Contracting State shall give sympathetic consideration to the application of stateless persons for
permission to transfer assets wherever they may be and which are necessary for their resettlement inanother country to which they have been admitted.

Article 31: Expulsion
1

The Contracting States shall not expel a stateless person lawfully in their territory save on grounds ofnational security or public order.

2

The expulsion of such a stateless person shall be only in pursuance of a decision reached inaccordance with due process of law. Except where compelling reasons of national security otherwise
require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to andbe represented for the purpose before competent authority or a person or persons specially designatedby the competent authority.

116

3

The Contracting States shall allow such a stateless person a reasonable period within which to seek
legal admission into another country. The Contracting States reserve the right to apply during that
period such internal measures as they may deem necessary.

Article 32: Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization ofstateless persons. They shall in particular make every effort to expedite naturalization proceedings and to
reduce as far as possible the charges and costs of such proceedings.

CHAPTER VI
FINAL CLAUSES
Article 33: Information on national legislation
The Contracting States shall communicate to the Secretary-General of the United Nations the laws
and regulations which they may adopt to ensure the application of this Convention.

Article 34: Settlement of disputes
Any dispute between Parties to this Convention relating to its interpretation or application, whichcannot be settled by other means, shall be referred to the International Court of Justice at the request of
any one of the parties to the dispute.

Article 35: Signature, ratification and accession
1

This Convention shall be open for signature at the Headquarters of the United Nations until 31
December 1955.

2

It shall be open for signature on behalf of:(a)

Any State Member of the United Nations;(b)

Any other State invited to attend the United Nations Conference on the Status of Stateless
Persons; and(c)

Any State to which an invitation to sign or to accede may be addressed by the General Assemblyof the United Nations.

3

It shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of
the United Nations.

117

4

It shall be open for accession by the States referred to in paragraph 2 of this article. Accession shallbe effected by the deposit of an instrument of accession with the Secretary-General of the United
Nations.

Article 36: Territorial application clause
1

Any State may, at the time of signature, ratification or accession, declare that this Convention shallextend to all or any of the territories for the international relations of which it is responsible. Such a
declaration shall take effect when the Convention enters into force for the State concerned.

2

At any time thereafter any such extension shall be made by notification addressed to theSecretary-General of the United Nations and shall take effect as from the ninetieth day after the day ofreceipt by the Secretary-General of the United Nations of this notification, or as from the date of entry
into force of the Convention for the State concerned, whichever is the later.

3

With respect to those territories to which this Convention is not extended at the time of signature,
ratification or accession, each State concerned shall consider the possibility of taking the necessary
steps in order to extend the application of this Convention to such territories, subject, where necessary
for constitutional reasons, to the consent of the Governments of such territories.

Article 37: Federal clauseIn the case of a Federal or non-unitary State, the following provisions shall apply:(a)With respect to those articles of this Convention that come within the legislative jurisdiction of
the federal legislative authority, the obligations of the Federal Government shall to this extent be thesame as those of Parties which are not Federal States;(b)With respect to those articles of this Convention that come within the legislative jurisdiction of
constituent States, provinces or cantons which are not, under the constitutional system of theFederation, bound to take legislative action, the Federal Government shall bring such articles with afavourable recommendation to the notice of the appropriate authorities of States, provinces orcantons at the earliest possible moment;(c)

A Federal State Party to this Convention shall, at the request of any other Contracting Statetransmitted through the Secretary-General of the United Nations, supply a statement of the law andpractice of the Federation and its constituent units in regard to any particular provision of theConvention showing the extent to which effect has been given to that provision by legislative orother action.

118

Article 38: Reservations
1

At the time of signature, ratification or accession, any State may make reservations to articles of theConvention other than to articles 1, 3, 4, 16 (1) and 33 to 42 inclusive.

2

Any State making a reservation in accordance with paragraph 1 of this article may at any time
withdraw the reservation by a communication to that effect addressed to the Secretary-General of theUnited Nations.

Article 39: Entry inro force
1

This Convention shall come into force on the ninetieth day following the day of deposit of the sixth
instrument of ratification or accession.

2

For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of
ratification or accession, the Convention shall enter into force on the ninetieth day following the date ofdeposit by such State of its instrument of ratification or accession.

Article 40: Denunciation
1

Any Contracting State may denounce this Convention at any time by a notification addressed to theSecretary-General of the United Nations.

2

Such denunciation shall take effect for the Contracting State concerned one year from the date uponwhich it is received by the Secretary-General of the United Nations.

3

Any State which has made a declaration or notification under article 36 may, at any time thereafter,
by a notification to the Secretary-General of the United Nations, declare that the Convention shall cease
to extend to such territory one year after the date of receipt of the notification by the Secretary-General.

Article 41: Revision
1

Any Contracting State may request revision of this Convention at any time by a notification
addressed to the Secretary-General of the United Nations.

2

The General Assembly of the United Nations shall recommend the steps, if any, to be taken in respectof such request.

Article 42: Notifications by the Secretary-General of the United Nations
The Secretary-General of the United Nations shall inform all Members of the United Nations and119non-Member States referred to in article 35:(a)Of signatures, ratifications and accessions in accordance with article 35;(b)

Of declarations and notifications in accordance with article 36;(c)

Of reservations and withdrawals in accordance with article 38;(d)

Of the date on which this Convention will come into force in accordance with article 39;(e)

Of denunciations and notifications in accordance with article 40;(f)

Of requests for revision in accordance with article 41.

In faith whereof the undersigned, duly authorized, have signed this Convention on behalf of theirrespective Governments.

120

SCHEDULE
Paragraph 1
1

The travel document referred to in article 28 of this Convention shall indicate that the holder is astateless person under the terms of the Convention of 28 September 1954.

2

The document shall be made out in at least two languages, one of which shall be English or French.

3

The Contracting States will consider the desirability of adopting the model travel document attachedhereto.

Paragraph 2
Subject to the regulations obtaining in the country of issue, children may be included in the travel
document of a parent or, in exceptional circumstances, of another adult.

Paragraph 3
The fees charged for issue of the document shall not exceed the lowest scale of charges for national
passports.

Paragraph 4
Save in special or exceptional cases, the document shall be made valid for the largest possible
number of countries.

Paragraph 5
The document shall have a validity of not less than three months and not more than two years.

Paragraph 6
1

The renewal or extension of the validity of the document is a matter for the authority which issued it,so long as the holder has not established lawful residence in another territory and resides lawfully in the
territory of the said authority. The issue of a new document is, under the same conditions, a matter forthe authority which issued the former document.

2

Diplomatic or consular authorities may be authorized to extend, for a period not exceeding six
months, the validity of travel documents issued by their Governments.

3

The Contracting States shall give sympathetic consideration to renewing or extending the validity oftravel documents or issuing new documents to stateless persons no longer lawfully resident in their121territory who are unable to obtain a travel document from the country of their lawful residence.

Paragraph 7
The Contracting States shall recognize the validity of the documents issued in accordance with theprovisions of article 28 of this Convention.

Paragraph 8
The competent authorities of the country to which the stateless person desires to proceed shall, if
they are prepared to admit him and if a visa is required, affix a visa on the document of which he is theholder.

Paragraph 9
1

The Contracting States undertake to issue transit visas to stateless persons who have obtained visas
for a territory of final destination.

2

The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Paragraph 10
The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges forvisas on foreign passports.

Paragraph 11
When a stateless person has lawfully taken up residence in the territory of another Contracting State,
the responsibility for the issue of a new document, under the terms and conditions of article 28 shall bethat of the competent authority of that territory, to which the stateless person shall be entitled to apply.

Paragraph 12
The authority issuing a new document shall withdraw the old document and shall return it to thecountry of issue if it is stated in the document that it should be so returned; otherwise it shall withdraw
and cancel the document.

Paragraph 13
1

A travel document issued in accordance with article 28 of this Convention shall, unless it contains a122statement to the contrary, entitle the holder to re-enter the territory of the issuing State at any time
during the period of its validity. In any case the period during which the holder may return to thecountry issuing the document shall not be less than three months, except when the country to which thestateless person proposes to travel does not insist on the travel document according the right of re-entry.
2

Subject to the provisions of the preceding sub-paragraph, a Contracting State may require the holderof the document to comply with such formalities as may be prescribed in regard to exit from or return to
its territory.

Paragraph 14
Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws
and regulations governing the conditions of admission to, transit through, residence and establishment in,
and departure from, the territories of the Contracting States.

Paragraph 15
Neither the issue of the document nor the entries made thereon determine or affect the status of theholder, particularly as regards nationality.

Paragraph 16
The issue of the document does not in any way entitle the holder to the protection of the diplomaticor consular authorities of the country of issue, and does not ipso facto confer on these authorities a rightof protection.

Note: The Convetion was adopted by the United Nations Conference on the Status of Stateless Persons,held at the Headquarters of the United Nations in New York from 13 to 23 September 1954. The
Conference was convened pursuant to resolution 526A (XVII) of 26 April 1954 of the Economic andSocial Council of the United Nations. For the text of the resolution, see Official Records of the Economic
and Social Council, Seventeenth Session, Supplement No. 1 (E/2596), p. 12. The text of the Final Act of
the United Nations Conference on the Status of Stateless Persons is reproduced in Appendix.

123Appendix II: Convention on the Reduction of Statelessness
Adopted at New York on 30 August 1961
Entry into force: 13 December 1975, in accordance with Article 18

The Contracting States,
Acting in pursuance of resolution 896 (IX), adopted by the General Assembly of the United Nations
on 4 December 1954,
Considering it desirable to reduce statelessness by international agreement,
Have agreed as follows:

Article 1
1

A Contracting State shall grant its nationality to a person born in its territory who would otherwise bestateless. Such nationality shall be granted:(a)at birth, by operation of law, or(b)upon an application being lodged with the appropriate authority, by or on behalf of the person
concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 ofthis Article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) of
this paragraph may also provide for the grant of its nationality by operation of law at such age and subject
to such conditions as may be prescribed by the national law.
2

A Contracting State may make the grant of its nationality in accordance with sub-paragraph (b) ofparagraph 1 of this Article subject to one or more of the following conditions:(a)that the application is lodged during a period, fixed by the Contracting State, beginning not later
than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so,however, that the person concerned shall be allowed at least one year during which he may himself
make the application without having to obtain legal authorization to do so;(b)that the person concerned has habitually resided in the territory of the Contracting State for such
period as may be fixed by that State, not exceeding five years immediately preceding the lodging of
the application nor ten years in all;(c)that the person concerned has neither been convicted of an offence against national security nor has
been sentenced to imprisonment for a term of five years or more on a criminal charge;

124

(d)
3

that the person concerned has always been stateless.

Notwithstanding the provisions of paragraphs 1 (b) and 2 of this Article, a child born in wedlock in the
territory of a Contracting State, whose mother has the nationality of that State, shall acquire at birth thatnationality if it otherwise would be stateless.

4

A Contracting State shall grant its nationality to a person who would otherwise be stateless and who isunable to acquire the nationality of the Contracting State in whose territory he was born because he has
passed the age for lodging his application or has not fulfilled the required residence conditions, if thenationality of one of his parents at the time of the person’s birth was that of the Contracting State first
above mentioned. If his parents did not possess the same nationality at the time of his birth, the question
whether the nationality of the person concerned should follow that of the father or that of the mother shallbe determined by the national law of such Contracting State. If application for such nationality is required,
the application shall be made to the appropriate authority by or on behalf of the applicant in the mannerprescribed by the national law. Subject to the provisions of paragraph 5 of this Article, such application
shall not be refused.

5

The Contracting State may make the grant of its nationality in accordance with the provisions ofparagraph 4 of this Article subject to one or more of the following conditions:(a)that the application is lodged before the applicant reaches an age, being not less than twenty-three
years, fixed by the Contracting State;(b)that the person concerned has habitually resided in the territory of the Contracting State for such
period immediately preceding the lodging of the application, not exceeding three years, as may be
fixed by that State;(c)that the person concerned has always been stateless.

Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within that territory of parents possessing the nationality of that State.

Article 3
For the purpose of determining the obligations of Contracting States under this Convention, birth ona ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship
flies or in the territory of the State in which the aircraft is registered, as the case may be.

125Article 4
1

A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting
State, who would otherwise be stateless, if the nationality of one of his parents at the time of theperson’s birth was that of that State. If his parents did not possess the same nationality at the time of hisbirth, the question whether the nationality of the person concerned should follow that of the father orthat of the mother shall be determined by the national law of such Contracting State. Nationality granted
in accordance with the provisions of this paragraph shall be granted:(a)at birth, by operation of law, or(b)upon an application being lodged with the appropriate authority, by or on behalf of the person
concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 ofthis Article, no such application may be rejected.

2

A Contracting State may make the grant of its nationality in accordance with the provisions ofparagraph 1 of this Article subject to one or more of the following conditions:(a)that the application is lodged before the applicant reaches an age, being not less than twenty-three
years, fixed by the Contracting State;(b)that the person concerned has habitually resided in the territory of the Contracting State for such
period immediately preceding the lodging of the application, not exceeding three years, as may be
fixed by that State;(c)that the person concerned has not been convicted of an offence against national security;(d)that the person concerned has always been stateless.

Article 51

If the law of a Contracting State entails loss of nationality as a consequence of any change in the
personal status of a person such as marriage, termination of marriage, legitimation, recognition or
adoption, such loss shall be conditional upon possession or acquisition of another nationality.

2

If, under the law of a Contracting State, a child born out of wedlock loses the nationality of that Statein consequence of a recognition of affiliation, he shall be given an opportunity to recover thatnationality by written application to the appropriate authority, and the conditions governing suchapplication shall not be more rigorous than those laid down in paragraph 2 of Article 1 of thisConvention.

Article 6126

If the law of a Contracting State provides for loss of its nationality by a person’s spouse or children
as a consequence of that person losing or being deprived of that nationality, such loss shall be conditional
upon their possession or acquisition of another nationality.

Article 7
1 (a)If the law of a Contracting State permits renunciation of nationality, such renunciation shall not
result in loss of nationality unless the person concerned possesses or acquires another nationality.

(b)

The provisions of sub-paragraph (a) of this paragraph shall not apply where their application
would be inconsistent with the principles stated in Articles 13 and l4 of the Universal Declaration of
Human Rights approved on 10 December 1948 by the General Assembly of the United Nations.

2

A national of a Contracting State who seeks naturalization in a foreign country shall not lose his
nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreigncountry.

3

Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting State shallnot lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure
to register or on any similar ground.

4

A naturalized person may lose his nationality on account of residence abroad for a period, not lessthan seven consecutive years, specified by the law of the Contracting State concerned if he fails to
declare to the appropriate authority his intention to retain his nationality.

5

In the case of a national of a Contracting State, born outside its territory, the law of that State may
make the retention of its nationality after the expiry of one year from his attaining his majority
conditional upon residence at that time in the territory of the State or registration with the appropriate
authority.

6

Except in the circumstances mentioned in this Article, a person shall not lose the nationality of aContracting State, if such loss would render him stateless, notwithstanding that such loss is not
expressly prohibited by any other provision of this Convention.

Article 8
1 A Contracting State shall not deprive a person of its nationality if such deprivation would render him
stateless.
2 Notwithstanding the provisions of paragraph 1 of this Article, a person may be deprived of thenationality of a Contracting State:

127

(a)

in the circumstances in which, under paragraphs 4 and 5 of Article 7, it is permissible that aperson should lose his nationality;(b)where the nationality has been obtained by misrepresentation or fraud.

3 Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the rightto deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its
retention of such right on one or more of the following grounds, being grounds existing in its nationallaw at that time:(a)that, inconsistently with his duty of loyalty to the Contracting State, the person(i)has, in disregard of an express prohibition by the Contracting State rendered or continued torender services to, or received or continued to receive emoluments from, another State, or(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;(b)that the person has taken an oath, or made a formal declaration, of allegiance to another State, or
given definite evidence of his determination to repudiate his allegiance to the Contracting State.

4 A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this
Article except in accordance with law, which shall provide for the person concerned the right to a fairhearing by a court or other independent body.

Article 9
A Contracting State may not deprive any person or group of persons of their nationality on racial,ethnic, religious or political grounds.

Article 10
1 Every treaty between Contracting States providing for the transfer of territory shall include provisions
designed to secure that no person shall become stateless as a result of the transfer. A Contracting State
shall use its best endeavours to secure that any such treaty made by it with a State which is not a party tothis Convention includes such provisions.
2 In the absence of such provisions a Contracting State to which territory is transferred or which
otherwise acquires territory shall confer its nationality on such persons as would otherwise become
stateless as a result of the transfer or acquisition.

Article 11
The Contracting States shall promote the establishment within the framework of the United Nations,128

as soon as may be after the deposit of the sixth instrument of ratification or accession, of a body to which
a person claiming the benefit of this Convention may apply for the examination of his claim and forassistance in presenting it to the appropriate authority.

Article 12
1 In relation to a Contracting State which does not, in accordance with the provisions of paragraph 1 of
Article 1 or of Article 4 of this Convention, grant its nationality at birth by operation of law, theprovisions of paragraph 1 of Article 1 or of Article 4, as the case may be, shall apply to persons born
before as well as to persons born after the entry into force of this Convention.
2 The provisions of paragraph 4 of Article 1 of this Convention shall apply to persons born before aswell as to persons born after its entry into force.
3 The provisions of Article 2 of this Convention shall apply only to foundlings found in the territory ofa Contracting State after the entry into force of the Convention for that State.

Article 13
This Convention shall not be construed as affecting any provisions more conducive to the reductionof statelessness which may be contained in the law of any Contracting State now or hereafter in force, or
may be contained in any other convention, treaty or agreement now or hereafter in force between two or
more Contracting States.

Article 14
Any dispute between Contracting States concerning the interpretation or application of thisConvention which cannot be settled by other means shall be submitted to the International Court ofJustice at the request of any one of the parties to the dispute.

Artcile 15
1 This Convention shall apply to all non-self-governing, trust, colonial and other non-metropolitan
territories for the international relations of which any Contracting State is responsible; the Contracting
State concerned shall, subject to the provisions of paragraph 2 of this Article, at the time of signature,
ratification or accession, declare the non-metropolitan territory or territories to which the Convention
shall apply ipso facto as a result of such signature, ratification or accession.
2 In any case in which, for the purpose of nationality, a non-metropolitan territory is not treated as one

129with the metropolitan territory, or in any case in which the previous consent of a non-metropolitan
territory is required by the constitutional laws or practices of the Contracting State or of thenonmetropolitan territory for the application of the Convention to that territory, that Contracting State
shall endeavour to secure the needed consent of the non-metropolitan territory within the period of
twelve months from the date of signature of the Convention by that Contracting State, and when suchconsent has been obtained the Contracting State shall notify the Secretary-General of the United
Nations. This Convention shall apply to the territory or territories named in such notification from thedate of its receipt by the Secretary-General.
3 After the expiry of the twelve-month period mentioned in paragraph 2 of this Article, the Contracting
States concerned shall inform the Secretary-General of the results of the consultations with thosenon-metropolitan territories for whose international relations they are responsible and whose consent tothe application of this Convention may have been withheld.

Article 16
1 This Convention shall be open for signature at the Headquarters of the United Nations from 30 August
1961 to 31 May 1962.
2 This Convention shall be open for signature on behalf of:(a)any State Member of the United Nations;(b)any other State invited to attend the United Nations Conference on the Elimination or Reductionof Future Statelessness;(c)any State to which an invitation to sign or to accede may be addressed by the General Assemblyof the United Nations.

3 This Convention shall be ratified and the instruments of ratification shall be deposited with theSecretary-General of the United Nations.
4 This Convention shall be open for accession by the States referred to in paragraph 2 of this Article.
Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of
the United Nations.

Article 17
1 At the time of signature, ratification or accession any State may make a reservation in respect ofArticles 11, 14 or 15.
2 No other reservations to this Convention shall be admissible.

130Article 18
1 This Convention shall enter into force two years after the date of the deposit of the sixth instrument of
ratification or accession.
2 For each State ratifying or acceding to this Convention after the deposit of the sixth instrument of
ratification or accession, it shall enter into force on the ninetieth day after the deposit by such State of its
instrument of ratification or accession or on the date on which this Convention enters into force inaccordance with the provisions of paragraph 1 of this Article, whichever is the later.

Article 19
1 Any Contracting State may denounce this Convention at any tine by a written notification addressed to
the Secretary-General of the United Nations. Such denunciation shall take effect for the Contracting
State concerned one year after the date of its receipt by the Secretary-General.
2

In cases where, in accordance with the provisions of Article 15, this Convention has become

applicable to a non-metropolitan territory of a Contracting State, that State may at any time thereafter,with the consent of the territory concerned, give notice to the Secretary-General of the United Nations
denouncing this Convention separately in respect of that territory. The denunciation shall take effect one
year after the date of the receipt of such notice by the Secretary-General, who shall notify all other
Contracting States of such notice and the date or receipt thereof.

Article 20
1 The Secretary-General of the United Nations shall notify all Members of the United Nations and thenon-member States referred to in Article 16 of the following particulars:(a)signatures, ratifications and accessions under Article 16;(b)

reservations under Article 17;(c)the date upon which this Convention enters into force in pursuance of Article 18;(d)denunciations under Article 19.

2

The Secretary-General of the United Nations shall, after the deposit of the sixth instrument of

ratification or accession at the latest, bring to the attention of the General Assembly the question of theestablishment, in accordance with Article 11, of such a body as therein mentioned.

Article 21

131This Convention shall be registered by the Secretary-General of the United Nations on the date of its
entry into force.

In witness of the undersigned Plenipotentiaries have signed this Convention.
Done at New York, this thirtieth day of August, one thousand nine hundred and sixty-one, in a single
copy, of which the Chinese, English, French, Russian and Spanish texts are equally authentic and whichshall be deposited in the archives of the United Nations, and certified copies of which shall be deliveredby the Secretary-General of the United Nations to all Members of the United Nations and to thenon-member States referred to in Article 16 of this Convention.

Note: The Convetion was adopted and opened for signature by the United Nations Conference on the
Elimination or Reduction of Future Statelessness, convened by the Secretary-General of the United
Nations pursuant to General Assembly resolution 896 (IX) on 4 December 1954. For the text of thisresolution, see Official Records of the General Assembly, Ninth Session, Supplement No. 21 (A/2890), p.
49. The text of the Final Act of the Conference is reproduced in Appendix.

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Appendix III: Japanese Nationality Act
Retrieved from Japanese Law Translation Database System, at
http://www.japaneselawtranslation.go.jp/law/detail/?ft=1&re=01&dn=1&co=01&ky=%E5%9B%BD%E7%B1%8D%E6%B3%95&page=1.
Act. No. 147 of 4 May 1950
Coming into effect on 1 July 1950
Amendments: Act No. 268 of 31 July 1952
Act No. 45 of 25 May 1984
Act No. 89 of 12 November 1993
Act No. 147 of 1 December 2004
Act No. 88 of 12 December 2008

(Purpose of This Act)
Article 1 The requirements of Japanese citizenship shall be governed by the provisions of this Act.

(Acquisition of Nationality by Birth)
Article 2 A child shall be a Japanese citizen in the following cases:(i)

If the father or mother is a Japanese citizen at the time of birth;(ii) If the father died before the child’s birth and was a Japanese citizen at the time of death;or(iii) If born in Japan and both of the parents are unknown or are without nationality.

(Acquisition of Nationality by Acknowledged Children)
Article 3 (1) In cases where a child acknowledged by the father or mother is under twenty years of age(excluding a child who was once a Japanese citizen) and the acknowledging father ormother was a Japanese citizen at the time of the birth of the child, Japanese nationality may
be acquired through notification to the Minister of Justice if that father or mother iscurrently a Japanese citizen or was so at the time of death.
(2) The person making notification provided for in the provision set forth in the preceding
paragraph shall acquire Japanese nationality at the time of the notification.

(Naturalization)

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Article 4 (1) A person who is not a Japanese citizen (hereinafter referred to as “foreign national”) may
acquire Japanese nationality through naturalization.
(2) To undergo naturalization, permission of the Minister of Justice shall be obtained.

Article 5 (1) The Minister of Justice may not permit naturalization for a foreign national who has not
met the following conditions:(i)Having continuously had a domicile in Japan for five years or more;(ii) Being twenty years of age or more and having the capacity to act according tohis/her national law;(iii) Being a person of good conduct;(iv) Being able to make a living through his/her own assets or abilities, or through thoseof a spouse or of another relative his/her making a living;(v) Not having a nationality or having to give up his/her nationality due to theacquisition of Japanese nationality; and(vi) On or after the date of promulgation of the Constitution of Japan, not having
planned or advocated the destruction of the Constitution of Japan or the government
established thereunder with force, and not having formed or joined a political partyor other organization planning or advocating the same.
(2) In cases where despite the foreign national’s intention, he/she is unable to give up his/hernationality, the Minister of Justice may permit naturalization of special circumstances arefound concerning a familial relationship or circumstances with a Japanese citizen even ifthat foreign national has not met the conditions listed in the preceding paragraph, item(v).

Article 6 The Minister of Justice may permit naturalization for a foreign national currently having a
domicile in Japan who falls under one of the following items even if that person has not met
the conditions listed in the proceding Article, paragraph (1), item (1):(i)

A child (excluding an adopted child) of a Japanese citiznen, the former continuously
having a domicile or residence in Japan for three years or more;(ii) A person born in Japan, and continuously having a domicile or residence in Japan forthree years or more or whose father or mother (excluding an adoptive parent) was born inJapan;

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(iii) A person having a residence in Japan continuously for ten years or more.

Article 7 The Minister of Justice may permit naturalization of a foreign national with a spouse who isa Japanese citizen, said foreign national continuously having a domicile or residence in Japanfor three years or more and who currently has a residence in Japan even if that person does notmeet the conditions of Article 5, paragraph (1), item (i) and item (ii). The same shall apply to aforeign national with a spouse who is a Japanese citizen, for whom three years have elapsed
since the date of their marriage, which foreign national has continuously maintained a domicile
in Japan for one year or more.

Article 8 The Minister of Justice may permit naturalization of a foreign national who falls under one of
the following items even if that person has not met the conditions listed in Article 5, paragraph(1), item (i), item (ii) and item (iv).
(i)

A child (excluding an adopted child) of a Japanese citizen, said child having a domicile inJapan;(ii) An adopted child of a Japanese citizen, said child continuously having a domicile in Japanfor one year or more, and having been a minor according to his/her national law at thetime of adoption;(iii) A person having lost his/her Japanese nationality (excluding a person who lost his/hernationality after naturalization in Japan) having a domicile in Japan; or(iv) A person born in Japan, not having any nationality since the time of birth, andcontinuously having a domicile in Japan for three years or more since that time.

Article 9 The Minister of Justice may obtain approval from the Diet and permit naturalization of aforeign national having provided a special distinguished service in Japan notwithstanding theprovision of Article 5, paragraph (1).

Article 10 (1) When permitting naturalization, the Minister of Justice shall provide public notice thereofin the official gazette.
(2) Naturalization shall have effect from the date of thepublic notice set forth in the preceding
paragraph.

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(Loss of Nationality)
Article 11 (1) If a Japanese citizen acquires the nationality of a foreign country at his/her choice, he/sheloses Japanese nationality.
(2) A Japanese citizen having the nationality of a foreign country loses Japanese nationality
when he/she selects the nationality of that foreign country according to the laws andregulations thereof.

Article 12 A Japanese citizen who acquired the nationality of a foreign country through birth and who wasborn abroad shall retroactively lose Japanese nationality to the time of birh unless he/she
indicates an intention to reserve Japanese nationality pursuant to the provision of the Family
Register Act (Act No. 224 of 1947).

Article 13 (1) A Japanese citizen having foreign nationality may renounce Japanese nationality by
notification to the Minister of Justice.
(2) The person making the notification provided for in the provisions set forth in thepreceding paragraph shall lose Japanese nationality at the time of the notification.

(Selection of Nationality)
Article 14 (1) A Japanese citizen having a foreign nationality shall select one of the nationalities, where
he/she obtains foreign and Japanese nationalities prior to his/her becoming twenty years
old, before his/her reaching twenty-two years old, and where that time when he/she
obtained foreign and Japanese nationalities comes after his or her reaching twenty years
old, within two years from that time.
(2) In addition to renouncement of the foreign

nationality,theselectionofJapanesenationality and declaring the renunciation of the foreign nationality (hereinafter referred
to as “selection declaration”) pursuant to the provisions of the Family Register Act.

Article 15 (1) The Minister of Justice may provide written notice that nationality must be selected to
any Japanese citizen having a foreign nationality who has not selected Japanesenationality within the assigned time as provided for in the preceding Article, paragraph(1).
(2) In the unavoidable event that the whereabouts of the intented recipient of the notice136

prescribed in the preceding paragraph may not be ascertained or notice in writing
isotherwise not possible, the notice may be published in the official gazette. In such cases,
the notice shall be deemed to have arrived on the day after publication in the official
gazette.
(3) The person receiving the notice provided for in the provision of the preceding two
paragraphs shall lose Japanese nationality when the period has elapsed if the selection ofJapanese nationality is not made within one month of receiving the notice; provided,
however, that this shall not apply in cases where the person is unable to select Japanesenationality within the period due to a natural disaster or some other cause not attributable
to that person, and the selection is made within two weeks of the time when the selection
may be made.

Article 16 (1) A Japanese citizen who makes the selection declaration shall endeavor to renounce his/her
foreign nationality.
(2) In cases where a Japanese citizen having made the selection declaration and not having
lost foreign nationality appoints the post of a public officer (with the exception of a postthat may be appointed by a person not having the nationality of that country) at his/herown discretion, the Minister of Justice may pronounce a judgment of loss of Japanesenationality if it is found that the appointment of the post is markedly contrary to the
purpose of the selection of Japanese nationality.
(3) The proceedings on the date of the hearing pertaining to the pronouncement of judgment
set forth in the preceding paragraph shall be conducted open to the public.
(4) The judgment pronouncement of paragraph (2) shall be placed in a public notice in theofficial gazette.
(5) The person receiving the pronouncement of judgment of paragraph (2) shall lose Japanesenationality on the day of the public notice set forth in the preceding paragraph.

(Reacquisition of Nationality)
Article 17 (1) A person who loses Japanese nationality pursuant to the provisions of Article 12 and isunder twenty years of age may acquire Japanese nationality, if he/she has a Japanese
domicile, through notification to the Minister of Justice.
(2) A person who receives the notice pursuant to the provisions of Article 15, paragraph (2)137and loses Japanese nationality pursuant to the provisions of that same Article, paragraph(3) may acquire Japanese nationality if he/she meets the conditions listed in Article 5,paragraph (1), item (v) through notification to the Minister of Justice within one year
from the date of knowing of the loss of Japanese nationality; provided, however, that if
notification cannot be made within that period due to a natural disaster or some othercause not attributable to that person, that period shall be one month from the time when
the notification can be made.
(3) The person making notification provided for in the provisions of the preceding two
paragraphs shall acquire Japanese nationality at the time of the notification.

(Notification, etc. by a Statutory Agent)
Article 18 The notification of acquisition of nationality provided for in the provision in Article 3,
paragraph (1) or the preceding Article, paragraph(1), application for permission to naturalize,
selection declaration, or notification of nationality renouncement shall be made by a statutory
agent if the person desiring nationality acquisition, selection, or renouncement is under fifteen
years of age.

(Delegation to Ordinances of the Ministry)
Article 19 Procedures relating to acquisition and renouncement of nationality as well as other required
matters relating to the enforcement of this Act not provided herein shall be prescribed by
Ordinance of the Ministry of Justice.

(Penal Provisions)
Article 20 (1) In cases of notification provided for in the provisions of Article 3, paragraph (1), a person
making a false notification shall be punished by not more than one year of imprisonment
with work or a fine of not more than two hundred thousand yen.
(2) The violation set forth in the preceding paragraph shall be governed by the Penal Code(Act No. 45 of 1907), Article 2.

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Statelessness Conventions and Japanese Laws
Convergence and Divergence

Osamu Arakaki