Possibilities and Pitfalls in Laws Affecting Children of Australian and Japanese Parents

Responding partly to the May judgment of the German Constitutional Court upholding a ban on hyphenated triple-barrelled surnames, Lisa Pryor suggests we adopt ‘the Spanish solution’ (‘Repetitive name injury‘, Sydney Morning Herald, 6-7 June, News Review p7). That is, children get two surnames, one from each parent. She also suggests we ditch middle names. But middle names already can be used to good effect to address her concerns, especially in the Australia-Japan context.
On the other hand, there remains a problem with Japan’s Nationality Law, despite its recent amendments, that might catch out children of Australian and Japanese parents.

First, the good news – how middle names can be used to good effect. For example, my eldest daughter (Moana) takes my wife’s surname (Kobayashi) as her middle name when we live in an English-speaking country like Australia (becoming: Moana Kobayashi Nottage, usually then abbreviated to Moana Nottage). In Japan(ese), she takes Kobayashi as surname, and Nottage as part of her personal name (becoming, as the surname is said first: Kobayashi NottageMoana). That gets abbreviated to Kobayashi Moana in schools there, which sounds like any other Japanese name. But ‘Nottage’ is formally included in her passport or Family Register. That has practical advantages: for example, if Moana and I ever travel across borders without my wife (Australia has acceded to the Hague Convention on Child Abduction, unlike Japan). And it allows our children to use fairly equally both surnames, retained by their parents.
Perhaps this solution can work for other international marriages and partnerships too. However, it does depend on the flexibility of family and passport-issuing laws, especially overseas. Fortunately, at least the common law tradition tends to take a quite liberal approach to using and changing names (see eg Roderick Munday, ‘The French Law of Surnames: A Study in Rights of Property, Personality and Privacy’ (1986) 6 Legal Studies 79).
While on the topic of international marriages with a Japanese and their children, however, let me highlight a second problem relating instead to citizenship. Moana and her younger sister Erica were born in Japan, taking Japanese nationality through their Japanese mother and New Zealand nationality through me. Their younger sister Miah and brother Liam were born in Sydney after we immigrated here in 2001, also gaining Australian nationality because this country maintains an old common law tradition of ius solis (allowing nationality also based on place of birth). So when I decided to apply myself for Australian citizenship based on several years as a permanent resident here, to be able for example to vote in federal elections, I included Moana and Erica in my application. (The fee was considerable, but adding children costed no more.)
But then I happened to read an article by Chuo Law School’s Professor Yasuhiro Okuda in the Journal of Japanese Law (Issue 18, 2005), which I help edit in collaboration with the Australian Network for Japanese Law. A problem remains in this situation under Japan’s Nationality Law, despite earlier amendment to allow children of international marriages to have dual citizenship at birth through their parents until reaching the age of majority (currently 20, although that too is now being reconsidered in Japan). The Law still provides that anyone is deemed to have renounced their Japanese citizenship if they apply for foreign citizenship (including therefore children like Moana and Erica, applying through me as their father). So when I pointed this out to my wife, she insisted that I immediately ring up Australian immigration authorities to withdraw Moana and Erica from my application!
I did so, of course, ‘for the sake of family harmony’ (katei heiwa no tame ni)! Although I know that while having the law on the books is one thing, its enforcement can be very different. And would the Japanese Ministry of Justice ever know that Moana and Erica, through me, had taken on Australian nationality? Anyway, there should be some scope to reapply for Japanese nationality if lost due a parent’s inadvertence.
By withdrawing the application for Moana and Erica, however, the end result for our family is that they can’t have Australian as well as Japanese nationality (as do their two siblings born here) until eg they reach 20, decide to chose NZ over Japanese nationality anyway, and then apply for Australian nationality. That shouldn’t be a problem if they still reside with us in Australia and Australian law doesn’t change, so that their permanent residency period here allows them to apply forthwith for Australian nationality. But what if we move overseas again? Then they may need to come back to Australia as NZ citizens, and reside here for the minimum period before being able to apply. And what if NZ citizens no longer get preferential treatment as permanent residents? Or what say Moana and Erica want to come back to Australia before they reach 20, eg to start university? Having NZ and Japanese but not Australian nationality may be disadvantageous in various ways.
Unfortunately, I don’t think these problems sufficiently affect the “rights of the child” and other rights guaranteed by Japan, under international and constitutional law, to have the relevant provisions of the Nationality Law impugned as unconstitutional. The situation facing the Supreme Court was much worse for the children and families, when it disallowed other provisions, as explained by Professor Okuda and Dr Hiroshi Nasu in the Journal’s Issue 26 (2008). In its judgment of 4 June 2008, the Court held that it was contrary to rights to equality that a child born out of wedlock between a Japanese father and a foreign mother can get Japanese nationality only if the father admits paternity during the mother’s pregnancy (or if the couple get married before the child turns 20), but not after birth. So many families in Japan had ended up with some children having Japanese nationality but not others, even though the Japanese father admitted paternity for all of them. The revised Nationality Law now gets rid of this particular problem.
But why not change that Law even further, to get rid of issues facing families like mine? The legislation and policy-makers still seem to be stuck in a time-warp, envisaging Japanese and non-Japanese people moving between only two countries. Yet nowadays there is much more to globalisation than that: people often spend considerable periods living and working in many other countries. And even powerful interests within the conservative ruling Coalition had been pushing last year to increase immigration dramatically into Japan, although the GFC has taken some of the wind out of that sail.
The solution is simple. Just amend the Nationality Law so that minors from international marriages and partnerships (already entitled to multiple nationality at birth) are not deemed to have renounced Japanese nationality by obtaining a further nationality after birth. And if that seems too much to stomach, why not limit it to parents from countries with which Japan has an FTA or “Economic Partnership Agreement”, as in that already with the Philippines or that presently under negotiation with Australia?
Policy makers might see this as an ambitious proposal. But not compared to a simpler alternative: just allow multiple nationalities, for adults as well as children! That is increasingly common world-wide, even in countries that have inherited the continental European legal tradition. Allowing multiple nationalities in Japanese law would take away much of the rationale for having the current expansive provisions on renunciation of Japanese nationality. The Nationality Law would still need to provide the possibility for renunciation, for those who didn’t want to perform the duties associated with Japanese nationality, but simply applying for another nationality would no longer need to be deemed to be renunciation. And a further compromise solution might be, again, to allow multiple nationalities for citizens of countries with which Japan has an FTA or EPA.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.