Exhibit 1. Michelle Malkin’s blog (hat tip to Adamu):

Fully one-quarter of the space on this year’s [U.S. Census] form is taken up with questions of race and ethnicity, which are clearly illegitimate and none of the government’s business (despite the New York Times’ assurances to the contrary on today’s editorial page). So until we succeed in building the needed wall of separation between race and state, I have a proposal.

Question 9 on the census form asks “What is Person 1’s race?” (and so on, for other members of the household). My initial impulse was simply to misidentify my race so as to throw a monkey wrench into the statistics; I had fun doing this on the personal-information form my college required every semester, where I was a Puerto Rican Muslim one semester, and a Samoan Buddhist the next. But lying in this constitutionally mandated process is wrong. Really — don’t do it.

Instead, we should answer Question 9 by checking the last option — “Some other race” — and writing in “American.” It’s a truthful answer but at the same time is a way for ordinary citizens to express their rejection of unconstitutional racial classification schemes. In fact, “American” was the plurality ancestry selection for respondents to the 2000 census in four states and several hundred counties.

Exhibit 2. The Rapporteur of the United Nations Committee on the Elimination of Racial Discrimination, to the Japanese government (thanks to Debito for putting the transcript online):

The report and [the government’s] responses contain many statistics including figures disaggregated by citizenship, nationality, but paragraph 4 of the report says that ethnic breakdown for Japan is not readily available, Japan does not conduct population surveys from an ethnic viewpoint.

I must say this has caused the rapporteur some heartache in the sense of trying to get a grip on relevant figures. For example, in relation to Koreans, you say that 600,000 approximately, that’s just round up those numbers, foreigners who are Koreans; 400,000 of which are special permanent residents, but there is also a figure of some 320,000 naturalizations that I have come across, and in recent years up to 2008, so we are actually talking about a million, something roughly around a million Koreans and Korean descent.

The committee often asks for statistics; we understand the difficulties that states may have for various reasons including reasons to do with privacy and anonymity and so on, not wanting to pigeonhole people in certain ethnic categories, but it can be tremendously helpful I think and also in many cases necessary to get a grasp of the situation by understanding its dimensions and if an ethnic question can’t be asked in a direct way in a census, we often encourage states to find creative ways around this, including things like use of languages we recommended to other states from time to time; social surveys, etc., and a number of other methods that are…this is essentially designed not simply to help the committee – that’s not the point – but to help the state, I think to understand the dimensions of a particular question, and enable them to focus their policy more appropriately.

“Race” in terms of black and white is a pretty silly idea, but there is something to be said about monitoring statistics on ethnic origin, as opposed to the Japanese government approach of looking at registered nationality alone (that is, when they choose to count foreign nationals at all). Of course, when the world is full of hot-heads on both sides of the political fence, it’s hard to reach a compromise that anyone will like.

The LA Times has a story on how an activist group in South Korea, sinisterly named the “Anti-English Spectrum” has been following foreign English teachers to ferret out suspected wrong-doing:

The volunteer manager of a controversial group known as the Anti-English Spectrum, Yie investigates complaints by South Korean parents, often teaming up with authorities, and turns over information from his efforts for possible prosecution.

Outraged teachers groups call Yie an instigator and a stalker.

Yie waves off the criticism. “It’s not stalking, it’s following,” he said. “There’s no law against that.”

Since its founding in 2005, critics say, Yie’s group has waged an invective-filled nationalistic campaign against the 20,000 foreign-born English teachers in South Korea.

On their website and through fliers, members have spread rumors of a foreign English teacher crime wave. They have alleged that some teachers are knowingly spreading AIDS, speculation that has been reported in the Korean press.
...
The debate over foreign English teachers is symbolic of a social shift taking place in a nation that has long prided itself on its racial purity and singular culture, South Korean analysts say.

In less than a decade, the number of foreigners living in South Korea, with a population of nearly 49 million, has doubled to 1.2 million, many of them migrant workers from other Asian nations.

Also included are the foreign English teachers, most from the United States, drawn here by compensation packages that may include as much as $2,500 a month plus free rent and a round-trip ticket to teach a Korean population obsessed with learning from native speakers.

While the idea of vigilantes following English teachers around is definitely unnerving, the effort seems much smaller and more reasonable than I expected from the headline. No reports of violence and just one threatening e-mail. If there are troublemakers in the country I think the citizens have a right to their activism. The “activists” seem more like a community of Internet hobbyists going after a group that’s done nothing to them for no reason other than self-satisfaction, very similar to the incidents of “enjo” flaming campaigns in Japan (or scambaiters, “Anonymous” protests against Scientology, etc. in the English-speaking world). I am tempted to write it off, but given what I am reading here and all the reports on English teachers smuggling drugs and getting into other trouble, the relationship between the foreign English teachers and the local Koreans seems genuinely strained.

Given the relative similarity of the situation in Japan (homogeneous Asian population, fetish over learning English from natives), it struck me how nothing like this has sprung up yet, especially given the industry’s business/hiring practices and the excesses of some of the teachers. There are stirrings of anti-foreigner sentiment here and there, but what strong feelings there are tend to come from fringe rightist groups railing against Koreans.

It’s possible there is a difference of degree in Korea – the Internet is a more integral part of life, there are proportionally more English teachers there, and foreigners in general are a more visible presence. That said, it could offer a glimpse at where Japan might be headed.

Korea remains one of the most connected nations on the planet, and has become famous for flaming campaigns. There was a recent string of celebrity suicides, some apparently a result of internet harassment.

In Japan, these attacks are quite common, though I have yet to hear about any high-profile suicides. Japanese net users have turned their ire on Westerners before, most notably in the “WaiWai incident” when they became outraged over lewd, liberally translated articles on the Mainichi Daily News site. If a foreign English teacher commits a heinous crime (or the police decide to play it up), it’s possible the 2ch crowd could start something a “Spectrum” of its own. If it comes to that, we will all no doubt back our dismissive comments about Debito and beg him for help (I am guessing there is no Debito equivalent in Korea – prominent Korea blogger Marmot has very little sympathy with his wayward fellow Westerners). Even so, I don’t get the impression that average Japanese people feel uneasy about Western English teachers – quite the contrary, they tend to be treated very well. Maybe we can thank the JET program for bringing in more “high quality” talent with its more rigorous selection process.

Next, there are a lot of English teachers in Korea! If the article’s figure of 20,000 is correct, it’s even more than the roughly 14,000 in Japan (and shrinking) even though Korea’s population is just 40% of Japan’s. If Japan had the same proportion of English teachers there’d be 36,000 of them, and businesses would probably have to lower standards even more to fill all the positions.

According to the article, foreigners make up 2.4% of South Korea’s population. In Japan that number is 1.74% and growing. Also, from all accounts the US military presence is felt a lot more in Korea, be it from soldiers on the street or the daily awareness that the country remains in a state of imminent war.

But with the foreign population on the rise in Japan, its greater visibility means there will definitely be some kind of reaction. Some might feel the kind of anger that’s directed at the government’s proposal to give permanent residence the vote. Those protests have yet to produce any violence or anything worth calling an “incident” but it’s a potential rallying point, and the bill hasn’t come up for debate yet.

The article draws a link between the Anti-English Spectrum and the overall issue of dealing with foreigners in “racially pure” South Korea, noting there have been some recent racially motivated attacks. I think there’s a clue in this for people watching Japan. When the net activists start wielding the hammer of anti-foreigner rage, Western English teachers might start to look more and more like a nail.

The DPJ has agreed to submit a bill that would grant foreign permanent residents of Japan (let’s call them PRs) the right to vote and run in local elections. Getting voting rights without having to give up Korean citizenship has long been a goal of zainichi Korean activist groups. But this proposal would apply both to “special” permanent residents that include the population of “zainichi” Koreans and Chinese from Taiwan who remained in the country after WW2, and to any foreigner granted permanent residency.

The bill has stirred up a firestorm of criticism, most loudly from the right wing. However, in support of the bill are some powerful forces, first and foremost DPJ Secretary General Ichiro Ozawa, whose job it is to ensure a lasting majority for his party. According to at least one critic, the decision to offer suffrage to all PRs may be  an attempt to secure a more permanent voting base because the zainichi population has been falling precipitously as the original group dies off and their decendants naturalize.

Personally, although I could potentially benefit from this bill if I one day am granted permanent residency, I don’t think it’s a good idea. Except for unique circumstances, only the citizens of a country should be allowed to vote.

Right-wing anger

The right wing and their allies in the opposition LDP have mobilized against this bill. Right-leaning Sankei Shimbun has run features pointing out the “big problems” with the bill. Financial services minister and conservative People’s New Party President Shizuka Kamei is against the proposal, noting he would refuse to sign a cabinet decision on the matter. In a statement, he worried that some areas with large foreign populations would see an upheaval of political power. He also suggested the compromise measure of loosening the requirements to naturalize, without being specific.

Protests have been common, and generally have taken a highly xenophobic tone. The crux of the argument is that there is no good reason to give PRs the vote and that almost no nations unilaterally grant foreign citizens the right to vote (some EU countries allow it for other EU citizens, along with some other exceptions made for special groups (PDF)). Some of the criticism veers into the paranoid, however. In addition to the long, long list of furious red herring arguments documented by Debito, here is a video of one activist calmly explaining that this is an attempt by China to take over Japan by populating the country with foreign voters.

Almost non-existent support

It’s obvious enough that these protesters are making ridiculous arguments and have cranked the outrage way out of proportion. But what is the case for giving PRs the vote?

In addition to expected support from zainichi Korean groups, we have some uncharacteristically half-baked support from Debito, the well-known human rights agitator: “Debito.org is in support, given how difficult it can be to get PR in Japan, not to mention how arbitrary the naturalization procedures are.” But just because it’s tough to get the status, that doesn’t mean one should get the right to vote and be elected. I am not accusing foreigners in Japan of being spies or degenerates, but a basic tenet of a country and the Japanese constitution is that it is to be governed by its citizens. That requirement helps assure those who will be involved in politics are committed citizens of the country. Permanent residents are already protected under the law and do not need to renew their visa to stay in the country. I think if they want more than that they should be ready to give up their original passport and become citizens.

In an article in Japan Focus, professor Chris Burgess praises the zainichi suffrage movement as “multiculturalism in practice” but makes no mention of the expanded proposal.

I can understand giving the special permanent residents the vote because they are for all practical purposes citizens of the country. The current DPJ proposal would essentially exclude those who did not explicitly take South Korean citizenship (朝鮮籍維持者), if I understand correctly. But I would not even have a problem with these people getting the vote as it was an tragedy of history that put them in the country in the first place. If Japan would permit dual citizenship that would be one thing, but absent that letting them vote one way to let them participate in society.

But really, what constituency of non-zainichi PRs is actually asking for the right to vote? The only one who really stands to gain is the DPJ itself which would earn itself an expanded and loyal voter base. That’s an irresponsible way to decide election policy in this country, and as much as it pains me to side with rabid right-wingers who may wish me ill will, they are right on this issue. There are more important issues in my opinion (allowing dual citizenship, establishing an immigration policy) that should be given more priority.

(Thanks to Mulboyne for the video link)

I’ve been in Dubai for almost two months now, and despite leaving Japan, everyday involves speaking, reading and writing Japanese in my personal and professional life. Since arriving I’ve probably met more than a hundred Japanese nationals here, such as company employees, government bureaucrats, waitresses and cooks at Japanese restaurants, and the wives and school-aged children that have accompanied many of them. That’s several percentage points of the whole Japanese population here—according to the local Japanese Consulate General, there are approximately 3,000 Japanese nationals living in Dubai.

The reaction to a Japanese-speaking non-Japanese person is overwhelmingly positive, and I have found it very easy to befriend Japanese nationals on that basis. I think one reason for this is the underwhelming penetration of English language proficiency in the Japanese community here, and the consequent loneliness and insular community that arises thereto.

It’s one thing when I meet Americans and Brits living in Japan who never exert even a cursory effort to learn the Japanese language. I’m disappointed by these types of people, but I understand that English is the lingua franca of the world, the lowest common denominator of language, that people can expect to use for communication in most cities of the world. I know people who have lived in Japan for years, knowing only English, and who have still been able to live a full life in Japan and enjoy all the major tourist locations such as Kyoto, Hakone, Nikko, and elsewhere.

Here in Dubai, I witness the same phenomenon—I meet Japanese people who have lived in Dubai for years and who can barely order food from a menu or instruct a cab driver. This is a city that follows the 21st century lingua franca—90% of the metropolitan population is foreign, and the common language between Lebanese, Indians, Brits, Egyptians, Iranians, Chinese, Kenyans, South Africans, Pakistanis, Greeks, Afghanis, and every other type of person you can imagine is English.

It’s one thing if a 30 year-old Japanese housewife can’t learn basic English communication after a few year in Dubai. That’s disappointing but understandable. But I’m truly shocked when I meet kids of the ages of 7 or 10, who have lived in Dubai for a year or two, and who have the potential to truly learn English like a native, and yet who can barely muster a sentence in English.

The blame lies squarely with the community and the education. The kids live in a Japanese community, attend Japanese schools that follow an ordinary Japanese curriculum, and basically have to study English in their spare time if they want to learn. And the general lack of English ability by many here has created a highly insular community. The Japanese tend to live in or around the Hyatt Regency, which offers serviced apartments for individuals and families, a supermarket with a small Japanese corner, and a genuine Japanese restaurant. Many other people live in the nearby neighborhood, and most of the authentic Japanese restaurants are in that area. With most Japanese socially cut-off from the rest of Dubai’s expat community, the result is a gossip network akin to a small inaka community. I met a bureucrat working at JETRO who had heard of me from his neighbor before we met—which we forensically determined was derivative to at least the fourth degree, with the information genesis beginning in a meeting that happened merely days earlier.

On the one hand, from a selfish perspective, this is great for me and has created all sorts of opportuities. But it’s also tragic that the Japanese, despite being very well educated and comfortably middle class for several generations, are so culturally isolated in a city where people gather from across the world.

Via the Marmot’s Hole, it appears that South Korea is currently drafting a law that would finally allow for dual citizenship of adults. The dual citizenship law in Korea is currently more or less the same as Japan, i.e. that it is only permitted for minors who are theoretically forced to choose upon reaching the age of majority. In Japan that age is 20 and in Korea is 22, but the principal is the same.

Those who obtain foreign citizenship by birth will be allowed to maintain it if they submit a written oath by the age of 22 not to exercise the rights and privileges of foreigners in Korea by using their second passport.

After the age of 22, men will be allowed to maintain multiple citizenship only if they complete their military service here. Under the current law, dual citizenship holders must choose one nationality by the age of 22 and submit a written pledge to give up their foreign citizenship if they choose their Korean nationality. The revision is aimed at blocking a drain on military manpower.

Those caught using their foreign passports to enter international schools or invest in Korea as foreigners will be ordered to choose a single nationality and automatically lose their Korean nationality if they fail to give up their foreign citizenship within a specified period.

The regulations also apply for other groups such as foreigners who have immigrated through marriage with Koreans; highly skilled foreigners; senior citizens living overseas; those who have regained Korean citizenship after being adopted by foreign families; and Chinese nationals who were born and have lived here for more than 20 years.

Under the current law, foreigners have to give up their foreign citizenship within six months after they obtain Korean nationality.

There are a couple of complications that I’m curious about, however. First, I assume that military service has a maximum age as well, and if so, are older men allowed to acquire dual-citizenship without doing it? The second case is more complicated though-the so-called Zainichi Koreans. Republic of Korea citizens who are permanent residents of Japan, particularly those who came during the pre-WW2 colonial period and their descendants. Will they also allowed to become dual nationals? And if so, what about military service?

Well, as it currently stands Zainichi Koreans, as well as Korean permanent residents in other countries, are exempt from the draft. However, should they “return” to Korea with the intention of becoming a permanent resident there, they lose this exemption.

大韓民国　兵役法
第６５条（兵役処分変更等）
第２項　・・・・・・・・・・・国外で家族と共に永住権を得た者（条件付き永住権を得た者を除く。以下同じ）又は永住権制度がない国で無期限滞留資格を得た者の場合には、兵役免除の処分をすることができる。
第４項　・・・・・・・・・・・兵役の免除を受けた者が国内で永住する目的で帰国するなど大統領令が定める事由に該当するときは、その処分を取り消して兵役義務を賦課することができる。

But will overseas Koreans, such as the Zainichi, even be allowed to acquire dual citizenship? There would probably be no significant issues in a country like the United States, which tolerated dual citizenship-even with countries that require military service, as long as they are a military ally like Israel. But what about Japan? I really can’t say. Although later-arriving Korean immigrants are also technically lumped in with Zainichi, the term is mainly concerned with those who, as I mentioned above, came over as colonial subjects, and their descendants, who were granted an unusual “Special Permanent Residents” status as a diplomatic compromise between Japan and Korea. (Note that the population of Zainichi who “came over during the colonial period and their descendants” is actually larger than the number of Special Permanent Residents, as some thousands returned or moved to Korea when it became independent, but later decided return to Japan, where they had spent most or all of their lives. Those who left Japan and returned were legally counted as new immigrants, and did not qualify for Special Permanent Residency.)

Many have wondered why neither country has ever allowed dual citizenship in the past, particularly for this minority. In fact, when Japan and South Korea were originally discussing the legal status of the Zainichi Koreans, the idea of allowing dual citizenship was floated, but was allegedly vetoed by the US government. As domestic politics in both countries, as well as their relations, have changed a lot over the decades, (and the US probably doesn’t care, or have the power to set policy anymore) a similar conclusion would not necessarily be foregone today, but I still can’t see Japan tolerating South Korea to unilaterally change their citizenship policy in a way that potentially hundreds of thousands of Japan residents. Zainichi Koreans (a group which actually consists of both South Korean citizens and quasi-stateless/quasi-North Korean citizens) have no problem naturalizing as Japanese citizens (they used to), but (at least anecdotally) are also forced to give up their Korean citizenship more strictly than westerners. I can’t see this changing until Japan also changes their own law to allow for adult dual citizenship, and I have yet to see any sign that they plan to do so.

Note: I started drafting this post about a week ago. Many of these points have since been raised in our educated readers’ comments to Curzon’s earlier post on the Savoie case. I’m going to re-raise them anyway, since I believe the broader discussion of international divorce should continue.

My first trip to court was as a student in an undergraduate law class. I was assigned to sit in a session of the local courthouse and take notes on what happened. This was also where I saw a divorce for the first time. A middle-aged, heavyset black couple with soft Southern drawls came in. The entirety of the divorce went like this:

JUDGE: I understand you two want to get divorced.
WIFE: That’s right, Your Honor.
JUDGE: What is the reason for this?
WIFE: He cheated on me, and lied to me. And we don’t wanna be married no more.
JUDGE: Is this true, sir?
HUSBAND: Yes, it is.
JUDGE: Do you have any children?
WIFE: No, sir.
JUDGE: Property?
HUSBAND: It’s taken care of.
JUDGE: Fine. I declare you lawfully divorced. Take this form to the clerk.
WIFE: Thank you.

I left the courthouse shortly after that, and saw them getting into the same car together to drive home. It was a surprisingly cute divorce.

Since becoming a lawyer and moving to Tokyo, I have gotten an inside seat in some much nastier divorces. Although the law firm I used to work at was primarily dealing with corporate clients, we would regularly get a personal inquiry from, say, a client’s secretary, telling us her brother’s children were stolen by his crazy Japanese wife, and we would invariably try to respond with something productive even though there was nothing particularly productive to do at that point. The problems in resolving cross-border family disputes involving Japan are legion, and have inspired a voluminous website written by an anonymous estranged gaijin dad.

First, some facts

The statistics in this section all come from the Japanese government. You can see the original stats (in Japanese CSV format) here.

One important but rarely-cited fact about Japanese divorce law is that most divorces are consensual and involve little legal process at all. These so-called “kyogi rikon” have consistently accounted for 90 to 95 percent of all divorces during the postwar era.

A lot of this has to do with the ease of the consensual divorce. The two parties simply sign and seal a one-page form (here’s a sample in Japanese) and file it with city hall. It’s possible to get a consensual divorce without ever setting foot in court. But there has to be consensus on what to do with property and children. In this respect, the system makes it comparatively very easy to end a marriage so long as there are no particular disputes to resolve.

If the parties can’t agree to the terms of their divorce, they must go to family court. The first phase is “chotei rikon,” essentially a mediated divorce under the auspices of the family court system. It is supervised by a judge but the mediation is conducted by laypeople. If mediation fails, the family court judge can step in with a “shimpan rikon,” a sort of preliminary judgment, but this can be defeated by either party’s objection within two weeks, and so it does not form a statistically significant number of divorces. The last resort is a “hanketsu rikon,” which is also finalized by the family court judge, but can only be concluded upon a showing of particular legal facts such as infidelity, cruelty or unwarranted denial of sexual intercourse. The parties can reach a settlement during the final court process, in which case their agreement is called a “wakai rikon”; this system was introduced in the past decade and has become a not-uncommon way to resolve marital disputes.

It’s a common misconception that mothers always get custody after a Japanese divorce. In reality, fathers end up with custody in a significant percentage of cases. In fact, until the 60’s, they were more likely to get custody than mothers. Check out this graph.

The thing is that (as stated above) most divorces are reached by voluntary agreement of some kind. Once the case gets into family court, the more-or-less official presumption is that the mother is a more suitable custodian unless the father can prove otherwise. The pre-eminent English academic commentator on Japanese child abduction, Doshisha law professor and periodic Japan Times contributor Colin P.A. Jones (who incidentally lost his own kid in a Japanese divorce proceeding) translated the family court’s mediation manual as follows:

When a child is small, it is thought that the mother should generally be designated custodian. For a young child, the mother’s existence is irreplaceable, and in mediation, custody designations should usually proceed from this basis. [. . .]

When a father is demanding to be designated custodian, it is not uncommon for him to base his arguments on the fact that because he has to work outside the home, his own parents can look after the child. However, it can be said that it is better for the child to live with his mother than with his grandparents. Unless the conditions in which a mother lives are judged unsuitable for the child, as a general rule I cannot approve of awarding sole custody to fathers. Even if grandparents do look after the child, it is likely that matters will arise daily in which they will not pay the same level of attention as a parent.

This manual does not have the force of law; it is merely an official reference for the judges. The practical effect of it is that fathers can only win custody by an overwhelming display of evidence that the mother is unfit to be a parent.

(Aside: Our favorite Japanese prime minister, Junichiro Koizumi, kept his first two children in a consensual divorce in 1982. His wife was six months pregnant at the time the papers were finalized and gave birth after the divorce. Koizumi tried to claim this third child as well, but the matter ended up in family court mediation and Koizumi’s ex-wife retained custody. Japanese Wikipedia interestingly doesn’t even name the third child of Koizumi, apparently because he is no longer legally Koizumi’s.)

What about joint custody? There is generally no such thing as joint custody among Japanese nationals. Visitation rights (面接交渉権 mensetsu kosho ken) may be granted by the court, but are often very limited (sometimes to a few hours once per year), are very difficult to legally enforce, and one parent must still be designated as the custodian whether or not the divorce is consensual. The only way a Japanese child can be registered as being in joint custody is if the child has another citizenship and their parents’ divorce was finalized in another country which allows joint custody. (This is not a “legal” provision per se; it was allowed by a Ministry of Justice circular and could theoretically be changed overnight if the Justice Minister changed their mind about the issue.)

Even outside Japan, joint custody is a sticky subject among parents, academics and jurists. Terrie Lloyd made the following statement in his email newsletter earlier this week:

The view of most [Japanese] judges (based on interviews with judges that we have done in the past) is that kids need to be insulated from the hurt between divorcing parents by giving them just one care-giver. But this is a traditional view and has no basis in fact. Child psychologists outside Japan generally agree that kids need the love and attention of both parents, even if they are divorced. Splitting the kids from one parent naturally causes them to side with the other (Parental Alienation Syndrome: PAS), which causes them to have complexes about the missing parent later in life.

Actually, as a glance at Wikipedia would show (and as Professor Jones acknowledges in the article linked above), PAS has not nearly reached general acceptance in the psychological community or the legal community, even in the supposedly more liberal United States.

(Another aside, at the risk of pissing off all the divorced men in the room: I find the use of PAS theory in custody disputes difficult to swallow. Sure, in theory it’s better for kids to have contact with both parents and view both parents as respectable people. In practice, if the parents can’t hold their marriage together, they probably can’t refrain from filling their kids’ heads with crazy talk about each other. So how is bouncing the kids back and forth between homes, and introducing two conflicting stories between the parents in the process, less traumatic for the kids than having one consistent story?

That said, there is a risk of conflating issues here. It’s one thing to park the children in one parent’s household when there is abuse or domestic violence going on. It may also be a good idea when the two parents absolutely can’t get along and their own discord is harming their children. But there are also many cases where children have no idea what is going on between their parents—only that one parent is going away forever—and this boggles my mind. In those sorts of cases, it makes sense to allow ongoing shared custody as an option, so long as the parents can work out logistics between them and agree to keep their disputes between themselves.)

This brings us to the international aspect of Japanese divorce law. International divorces are common in Japan, but not exactly in the form familiar to readers of Debito.org or crnjapan.com. 7.1% of divorces in Japan in 2007 involved a non-Japanese party. The most common combinations were:

• Japanese husband, Chinese wife (1.97%)
• Japanese husband, Filipina wife (1.82%)
• Japanese husband, Korean wife (1.11%)
• Japanese wife, Korean husband (0.35%)
• Japanese husband, Thai wife (0.33%)
• Japanese wife, Chinese husband (0.22%)
• Japanese wife, American husband (0.14%)

Chinese and Korean family law bear a striking resemblance to Japanese family law. The Chinese and Korean systems emerged from the civil law tradition, and like Japan’s, revolve around the concept of a central family registration system where every citizen is tracked. So that means only 2.74% of Japanese divorces involve a country with a “truly foreign” family law apparatus, and it’s probably safe to say that of the total number of divorces in Japan, much less than one percent involve a non-Asian party. These facts are understandable given that Japanese-Asian marriages form the vast majority of international marriages in Japan.

Let’s ask the question on everyone’s mind, though:

Is the system biased against foreigners?

Yes, it is.

But to some extent, the bias is unavoidable.

Unfortunately, there are no statistics to show how foreign parents generally fare in court-administered divorces here. My conclusion, based on many stories floating around the internet and by word of mouth, is that foreign parents are highly unlikely to win custody of Japanese kids from a Japanese court, whether or not the foreign parent is male or female. And given the fact that moms are more likely than dads to keep the kids, foreign dads should not expect much if their marriage falls apart.

A lot of this boils down to cultural differences. A Japanese judge likely has no idea of how a non-Japanese family operates, and is going to have suspicion regarding what might happen in a non-Japanese household. Suspicions aside, a not-so-worldly Japanese person would probably be unpleasantly surprised by many family quirks that are taken for granted outside Japan.

The same is true for courts in other countries. Chris Savoie, for instance, attacked Noriko Savoie in Tennessee divorce court because she had their 6- and 8-year-old kids sleep with her in her bed. This practice is uncommon in the US and would probably seem strange to an American lawyer or judge, but wouldn’t raise an eyebrow in Japan, where it’s often used simply to save space.

Cultural issues aside, there are also some procedural stumbling blocks for non-Japanese in the Japanese divorce system. These are issues which warrant legal revision, both from an international human rights perspective and from a perspective of citizens’ best interests.

Problem 1: There is no contempt of court

This is really an endemic problem throughout the Japanese legal system, not just in the sphere of family court. Even if you can get a judge to order some action or inaction (like “stay away from X’s kids” or “let X see the kids on these days”), they have no way to enforce that order if the counterparty says “no.” All they can do is levy fines, but even if they do that, the counterparty can simply refuse to pay.

Then your only option is “self-enforcement”—withholding payments and finding ways to exert social pressure. Self-enforcement might work to some extent if the enforcing party is savvy about the local system, but it puts outsiders, particularly outsiders in different countries, at a great disadvantage. Courts need teeth if they are to effectively administer any sort of custody-related arrangements.

Problem 2: The arbitrariness of Japanese nationality and conflict-of-law rules

The biggest legal problem in the Savoie case is that Dr. Savoie is a Japanese citizen and apparently hasn’t taken that fact into account in his legal strategy. The following statutory passages explain what I mean:

法の適用に関する通則法
General Act Regarding the Application of Laws

（本国法）
第三十八条 　当事者が二以上の国籍を有する場合には、その国籍を有する国のうちに当事者が常居所を有する国があるときはその国の法を、その国籍を有する国のうちに当事者が常居所を有する国がないときは当事者に最も密接な関係がある国の法を当事者の本国法とする。ただし、その国籍のうちのいずれかが日本の国籍であるときは、日本法を当事者の本国法とする。

(Home Country Law)
Article 38. If a party has two or more nationalities, then the home country of the party shall be the law of the country in which such party has a habitual residence if such a country exists, and should no such country exist, the law of the country having the closest relationship to that party. However, if any such nationality is the nationality of Japan, the home country law of the party shall be the law of Japan.

According to the International Wedding Association, a Japanese NPO, a citizen would have “habitual residence” by virtue of being recorded in the resident registration (juminhyo) system, unless they have actually lived overseas for five continuous years prior to the date of determination.

（婚姻の効力）
第二十五条 　婚姻の効力は、夫婦の本国法が同一であるときはその法により、その法がない場合において夫婦の常居所地法が同一であるときはその法により、そのいずれの法もないときは夫婦に最も密接な関係がある地の法による。

(Validity of Marriage)
Article 25. The validity of a marriage shall be determined by the home country law of the husband and wife if such law is the same; or if such law does not exist, by the law of the habitual residence of the husband and wife if such law is the same; or if such law does not exist, by the law of the place having the closest relationship to the husband and wife.

（離婚）
第二十七条 　第二十五条の規定は、離婚について準用する。ただし、夫婦の一方が日本に常居所を有する日本人であるときは、離婚は、日本法による。

(Divorce)
Article 27. The provisions of Article 25 shall apply to divorces. However, if either husband or wife is a Japanese person with a habitual residence in Japan, [their] divorce shall be based on Japanese law.

So let’s run down the facts.

• First, Christopher and Noriko were married in Japan.
• Then Christopher became a Japanese citizen. So far, so good.
• Then Christopher took his wife to the US and divorced her there. But their mutual home country law was Japanese law, so their divorce would have been invalid under Japanese law.
• Having been improperly divorced for Japanese purposes, Christopher then married Amy.

Whether or not we agree with the propriety of a U.S. divorce for the Savoies, turning Chris into a bigamist is a pretty illogical outcome. I think he could get around prosecution given that he had no apparent intent to be legally married to two people at the same time.

That said, I think Christopher may intend to rescind, or deny the validity of, his own naturalization. The US Consulate says they want to help him out, which should not be the case if he really is Japanese (you can’t get consular protection in a country where you are a citizen). It’s a bizarre argument, and I believe it would fall flat on its face in court as an “abuse of rights” or something similar.

The solution to this problem, inasmuch as there is one, is to revise these conflict-of-law provisions so that Japanese citizens have the clear ability to divorce in a foreign forum under foreign law if they have some requisite connections to that forum. (Formally allowing dual citizenship, and getting rid of the odd ability to rescind one’s own citizenship following naturalization, wouldn’t hurt, either.) But both of these ideas are in conflict with another feature of the Japanese family law system.

Problem 3: The koseki is a moronic concept

If you don’t know what the “koseki” is, read this. The entire family law system in Japan is based on the premise of a giant hierarchical registry limited to citizens.

The koseki-worship in the civil law system here is responsible for a lot of the family law rules. Children legally exist as an entry in their parents’ koseki page. Parents have a koseki page by virtue of being married. When they divorce, they revert to separate koseki pages, and their children must go one way or the other. Thus, in a sense, they legally lose title to their children. And, as many of our readers undoubtedly know, foreigners do not appear on the koseki at all, except as “notes” on their spouse’s page.

Why is this entire system necessary? Familial relations are a personal matter, and are often quite abstract in nature. Is a parent less of a parent because they remarried or because they don’t have a Japanese passport?

The notion of organizing society around households is unnecessarily feudalistic for the modern age, and something more flexible would be better for citizens and non-citizens alike—particularly those for whom familial roots have historically been a source of discrimination (the burakumin, naturalized Koreans and others).

Personal footnote

I don’t have a wife or kids yet. Debito, who has written extensively about his own divorce and loss of children (a dreadfully sad story, but an excellent overview of how the system works here), chided me in a Facebook comment thread for daring to state my opinions while I lack skin in the game. Lest anyone get the wrong idea, I respect Debito, who gave me, Roy and Curzon the privilege of hearing his story in person a good year before he made it public. But where I come from, having no skin in the game is called “objectivity,” and does not by any means disqualify an opinion.

For what it’s worth, I do have some skin in the game, as I am engaged to get married early next year. While I have given up on my farcical plans to transfer my kids to an offshore investment vehicle, I am still very cognizant that the law (even as I think its mechanics should work) may bite me in the rear someday if my marriage ever breaks down.

Sadly, a lot of the discussion surrounding these issues, whether regarding particular cases or the system in general, devolves into parental narcissism, envy and finger-pointing. The whole framework of marriage, divorce and custody is ultimately not about what Mom or Dad wants: it’s about protecting children and giving them a chance to inherit the world as capable individuals. So, as I see it, we have to approach it from that perspective regardless of which side we occupy on the wedding cake.

The US and Japanese media are focusing much attention on the arrest of Christopher Savoie in Fukuoka. The English language press deems this as yet another case of a victim of Japan’s pre-modern family law. Undeniably, there is a history of Japanese mothers suddenly fleeing to Japan where they are beyond the reach of the law, resulting in more than a hundred abduction cases involving Japan and the US alone, and this needs revision. But sympathetic press articles notwithstanding, Christopher is the wrong martyr to rally behind in this fight—an objective view of the facts makes Christopher’s ex-wife Noriko the figure of sympathy in this story.

Christopher and Noriko met and married in Japan. Christopher had a PhD and was a successful entrepreneur who founded a pharmaceutical business that he took public on the Tokyo stock exchange. He is also a naturalized Japanese citizen. They were married for thirteen years and have two children, currently ages 8 and 6.

While living in Japan, the marriage was breaking down and Noriko asked Christopher for a divorce, which he refused. Instead he convinced Noriko to move with him to the US and they did so in June 2008. No sooner had they moved than Christopher took up with another woman and served Noriko with divorce papers. Noriko was dependent on her husband and had no income for herself and had just been relocated to his home town in a country that she did not know, although she may have been relieved that she was getting the divorce she wanted a year earlier and probably also happy to receive custody of the kids and a generous financial settlement and monthly support. But the arrangements required that she stay in Tennessee and not even visit Japan without court permission. Although we cannot be sure, all the facts make it likely that Christopher was motivated to relocate to his home town to get divorced in a US court.

Thus Noriko was stuck in a country where she was culturally and personally isolated, abandoned by her husband but still expected to raise kids in a new country so her husband could get visitation. So in August, Noriko absconded to Japan with the two kids. Christopher then petitioned the court and was granted custodial rights. He then went to Japan and physically snatched his kids from his wife as they walked to school by force in a car—the very definition of “abduction.” He then raced to the US Consulate in Fukuoka, where the guards refused him entry and he was arrested outside by police. He is being held by police for 10 days and has not yet been charged.

What a US-Japanese citizen hoped to gain in a US consulate is questionable. And the action was clearly pre-meditated. But much of this narrative is lost in the US media reports, which are overwhelmingly sympathetic to Christopher and speak in implied terms of a vast, cultural conspiracy in Japan to favor mothers. The Huffington Post says “Divorced fathers in Japan typically don’t get much access to their children because of widespread cultural beliefs that small children should be with their mothers,” and Forbes writes that the case “underscores long-standing disputes over Japan’s traditional favoritism toward mothers in custody battles.” That’s utter nonsense. The statistics imply that mothers win custody in Japan at approximately the same proportion as the US—and as for Japanese “culture,” fathers were more likely to receive custody until the 1960s. On the contrary, the bias towards mothers is far more ingrained in US culture—for more than a century US courts followed the Tender Years doctrine, under which mothers get prima facie rights to child custody disputes. (Although many state courts have abandoned this on the basis of the 14th amendment equal protection clause, it still exists in many US states.)

There are also lots of factual mistakes in the reporting, such as reporting by CNN that “Japanese law… recognizes Noriko Savoie as the primary custodian.” Actually, Japanese law says that two Japanese citizens are still married, as they are both Japanese nationals and bust be divorced in Japan for the divorce to be valid, in which case there is no way that Noriko is the primary custodian. And while Japan does not have joint custody of children, there are visitation rights. (It is also reported that Noriko has dual US and Japanese citizenship, although the how and why of that is unclear.)

Terrie’s Take of Japan Inc. fame was cited by Debito as being “the best, most thorough, most balanced opinion yet on the case.” (Actually, like much of what Terrie writes, it’s a sloppy newsletter with numerous factual errors.) But beyond that, the most amusing part of that article is that it states,

What is surprising is that [Christopher] chose to get his kids back in a way that exposed him to many untested theories. One of these theories has been that it is OK to abduct your kids back. Indeed the police often do turn a blind eye to home disputes and will allow “mini-abductions” to happen.

Kidnapping as an untested theories? Yes, the cops and courts do try to keep out of family disputes whenever possible—but what Christopher did was kidnapping pure and simple, and even his lawyer has basically already admitted that he was wrong to use force. We can’t guess how this is going to be sorted out, but my guess is that Noriko is about to get some justice in court, and Christopher’s nutty stunts will prejudice him in getting visitation rights. That’s a good thing—and you can think that and still want Japan to modernize its family law to meet international standards.

While making breakfast this morning, I noticed a couple of news trucks around the sushi restaurant across the street, which is the first thing I see when leaving my apartment in the morning. I figured that Gal Sone was probably eating a metric ton of kohada or something, but the truth was far darker. Kyodo reports:

Robbery at Choshimaru kaitenzushi: 720,000 yen seized

Around 6:30 AM on the 13th, a man entered from the back door of the Ayase Sushi Choshimaru kaitenzushi restaurant in Yanaka 1-chome, Adachi-ku, Tokyo, held a knife to the clerk (26) opening the restaurant, said “Give me your money,” seized 720,000 yen in sale receipts from the safe and fled. The clerk was unharmed.

The Metropolitan Police Ayase Station are searching for the man as a robbery suspect.

According to the Ayase Station, the man is around 30 and about 160-170 cm tall. He was wearing sunglasses, a black short-sleeved shirt and jeans. The clerk claims that “he threatened me in broken Japanese.” (Kyodo)

The Jiji report uses a fascinating phrase to describe the perp: “アジア系外国人風,” which means something like “looks Asian, seems foreign.” Fortunately, I only fit half of those criteria.