university of california, irvine

UNIVERSITY OF CALIFORNIA, IRVINE

National Identity and Citizenship in China and Korea

Dissertation

submitted in partial satisfaction of the requirements for the degree of

Doctor of Philosophy in Sociology

by

Hyun Choe

Dissertation Committee: Professor David A. Smith, Chair Professor Frank Bean Professor Dorothy Solinger

2003

 2003 Hyun Choe

The dissertation of Hyun Choe is approved and is acceptable in quality and form for publication on microfilm:

Committee Chair

University of California, Irvine 2003

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DEDICATION

To

Yeongtae Choe and Geumsun Park, My Parents And Rosa, My Daughter

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TABLE OF CONTENTS LIST OF TABLES ........................................................................................... viii LIST OF FIGURE .............................................................................................. ix ACKNOWLEDGMENTS .................................................................................... x CURRICULUM VITAE ...................................................................................... xii ABSTRACT OF THE DISSERTATION ........................................................... xiii CHAPTER ONE ................................................................................................. 1 I. Introduction.................................................................................................... 1 1. Research Question .....................................................................................................................................1 2. The Study ...................................................................................................................................................3 3. Methodology ..............................................................................................................................................7 4. Outline ...................................................................................................................................................... 13

CHAPTER TWO ............................................................................................... 15 II. Theoretical Review ..................................................................................... 15 1. Culture and Structure ............................................................................................................................. 15 2. Culturalism vs. Structuralism in the Study of the Nation-state .......................................................... 16 3. Culturalism vs. Structuralism in the Study of Citizenship .................................................................. 20 4. Culturalism vs. Structuralism in the Study of the East Asian Case .................................................... 25

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CHAPTER THREE ........................................................................................... 29 III. Development of State-centered, Inclusionist Nationalism (Aiguozhuyi or patriotism) in China .................................................................................. 29 1. Historical and demographic background of State-centered, Inclusionist Nationalism and National Identity in China ..................................................................................................................................... 30 2. Ethnic Nationalism vs. State Nationalism: Late Qing (until 1911) ..................................................... 33 3. Development of State Nationalism: The Republic of China (1912~1949) ........................................... 36 4. Confirmation of State Nationalism under Communism: The People’s Republic of China (1949~) . 39 4.1. Anti-Chauvinist State Nationalism during Mao Period (1949~1978): ..................................... 39 4.2. The Rise of New Nationalism in the Post-Mao Period (1978~): ................................................ 44 5. The Effect of State Nationalism on Ethnic Minority Identity: the Korean-Chinese case ................. 50 5.1. History of Korean Migration into Manchuria: .......................................................................... 50 5.2. Identity of Chaoxianzu (or Joseonjok in Korean): .................................................................... 53

CHAPTER FOUR ............................................................................................. 55 IV. The Development of Ethnic Nationalism in Korea ................................. 55 1. The Historical and Demographic Background of Ethnic Nationalism and the Exclusionist National Identity in Korea..................................................................................................................................... 56 2. Ethnic Nationalism: late Joseon (1880—1910)...................................................................................... 58 3. The Development of Ethnic Nationalism under Colonialism and Anti-Colonialism: 1910~1945 ..... 60 4. The Development of Ethnic Nationalism under Division: 1945~ ........................................................ 64 5. The Effect of Ethnic Nationalism on Ethnic Minority Identity: Chinese case ................................... 70 5.1. History of Chinese Migration into Korea: .................................................................................. 71 5.2. Identity of Huaqiao in Korea: ...................................................................................................... 74

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CHAPTER FIVE ............................................................................................... 76 V. The Legal Definition of Citizenship (or Subjectship) in China: .............. 76 1. The Legal Definition of Chinese Subjectship/Citizenship in Late Qing (1850s~1910): ..................... 77 1.1. The Politics of Jus Sanguinis: ...................................................................................................... 79 1.2. Policy toward Chinese with Foreign Citiznship and Dual Citizenship: ................................... 87 1.3. The Qing’s Policy toward Korean Immigrants: ........................................................................ 90 2. The Legal Definition of Citizenship under the Nationalist Regime (1912~1949): .............................. 92 2.1. Naturalization: .............................................................................................................................. 94 2.2. Discrimination against Women: .................................................................................................. 96 2.3. Policy toward Ethnic Chinese and Dual Citizenship: ................................................................ 97 2.4. Naturalization of Korean Immigrants: ..................................................................................... 101 3. The Legal Definition of Chinese Citizenship from 1949 to 1978: ...................................................... 103 3.1. Policy toward Overseas Chinese and Dual Citizenship:.......................................................... 104 3.2. The Naturalization of Korean Immigrants: ............................................................................. 108 3.3. The 1980 Nationality Law: ......................................................................................................... 115 3.4. Naturalization: ............................................................................................................................ 117 3.5. Discrimination against Women: ................................................................................................ 119 4. Economic Reform and the Definition of Citizenship after 1978: ...................................................... 120 4.1. Overseas Chinese: ....................................................................................................................... 120 4.2. Introduction of the “Permanent Residence System (or Denizenship)”: ................................. 126

CHAPTER SIX ............................................................................................... 129 VI. Legal Definition of Subjectship/Citizenship in South Korea: .............. 129 1. Subjectship in Joseon (1392~1910): ..................................................................................................... 129 2. Subjectship under the Japanese Colonialism (1910~1945): ............................................................... 133 3. Citizenship under the U.S. Military Government Occupation (1945. 8. 15~1948. 8. 15): ............... 135

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4. The Legal Definition of Citizenship in the Republic of Korea before 1990s: ................................... 137 4.1 Naturalization: ............................................................................................................................. 139 4.2. Discrimination against Women: ................................................................................................ 141 4.3. Policy toward Residents of Chinese Ethnicity: ........................................................................ 143 4.4. Policy toward Ethnic Koreans Abroad and Dual Citizenship: ............................................... 147 5. Changes in Legal definition of Citizenship after the mid-1990s: ...................................................... 151 5.1. Naturalization: ............................................................................................................................ 154 5.2. Discrimination against Women: ................................................................................................ 155 5.3. Policy toward Foreign Workers: ............................................................................................... 157 5.4. Policy toward Residents of Chinese Ethnicity: ........................................................................ 166 5.5. Policy toward Ethnic Koreans with Foreign Citizenship and Dual Citizenship: Joseonjok case ........................................................................................................................................................ 170

CHAPTER SEVEN ......................................................................................... 180 VII. Conclusion.............................................................................................. 180 REFERENCES ...................................... 오류! 책갈피가 정의되어 있지 않습니다. APPENDICES ................................................................................................ 211 1. Summary of the 1909 statute on Nationality of the Qing ................................................................ 211 2. The 1929 Nationality Law of the ROC ............................................................................................ 213 3. The 1980 Nationality Law of the People’s Republic of China ........................................................ 217 4. The Law of the People’s Republic of China of the Protection of the Rights and Interests of Returned Overseas Chinese and Relatives of Overseas ................................................................................. 219 5. The 1948 Provisional Rules on Nationality of the South Korea Interim Government .................... 224 6. The 1948 Nationality Law of the ROK ........................................................................................... 225 7. The 1997 Nationality Law of the ROK ........................................................................................... 228 8. The Law on the Entry, Exit, and Legal Status of Overseas Koreans ............................................... 238

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LIST OF TABLES [Table 1] National Identity and Changes of Citizenship Policy in the PRC and the ROK ...........................................................................................….….….….4 [Table 2] Foreign Workers and their Legal Status: 1987-1997 .................................159

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LIST OF FIGURE [Figure 1] Naturalization in the ROK: 1982-2001 ........................................... 154

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ACKNOWLEDGMENTS

I would like to express the deepest appreciation to my committee chair, Professor David A. Smith, who advised, supported and encouraged me throughout my graduate studies. I am also grateful to Professor Dorothy Solinger in the Department of Political Science, who is a member of my dissertation committee for providing many valuable comments that improved the contents of this dissertation. I am indebted to Professor John Torpey in the Department of Sociology, at the University of British Colombia in Canada, for introducing me to the field of citizenship and for teaching me details. My thanks also go to Professor Frank Bean in the Department of Sociology.

I am also grateful to Professor Jin-gyun Gim of Seoul National University for showing the way of a mentor. I am indebted to Professor Sang-Jin Han of Seoul National University for helping me to study in the USA. I appreciate Professor Chulwoo Lee of Seonggyun-gwan University for sharing his valuable data about Korean citizenship, Professor Seokjeong Han of Dong-a University for sharing his academic passion with me, and Professor Myoung-Kyu Park of Seoul National University for his generous assistance in preparing this dissertation.

The research work was funded by the Yokoyama Student Travel Award. Without this travel award, I could not have done research on Chinese citizenship.

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My deepest gratitude and love are due to my parents for their dedication that provided the foundation for this work. I cannot thank them enough. They definitely share the joy of finishing my study. I also want to share my happiness with my lovely daughter Raeyeon Rosa.

I also want to notify that I adopt the pinyin system to romanize Chinese and Korea’s new official system, which was introduced by the National Academy of the Korean Language, to romanize Korean. However, I did not stick to those systems for the names of persons, who are already well known among English speakers or published books in English.

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CURRICULUM VITAE

Hyun Choe

1989

B.S. in Sociology, Seoul National University, Seoul, KOREA

1998

M.S. in Social Science, University of California, Irvine

2003

Ph.D. in Sociology, University of California, Irvine

FIELD OF STUDY Political Sociology

COFFERENCE PRESENTATIONS

“National Identity and Citizenship in the Republic of Korea” at the 6th Annual Korean Studies Graduate Student Conference held at Harvard in 2001. “Citizenship and Nationhood in China and Korea” at the SSSP annual meeting in Chicago in 1999.

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ABSTRACT OF THE DISSERTATION National Identity and Citizenship in China and Korea By Hyun Choe Doctor of Philosophy in Sociology University of California, Irvine, 2003 Professor David A. Smith, Chair

Pointing out the limitations of culturalist approaches, my dissertation deals with factors that contribute to the legal definition of citizenship in China and South Korea. Specifically, I argue that the understanding of political and economic interests, rather than cultural aspects, is important in explaining the changes of the definition of citizenship, in these two cases and presumably elsewhere as well. My dissertation shows that concerns about sovereignty, diplomatic considerations, economic development programs, and civil movements often change nationality law and citizenship policy in ways that run counter to traditional national identity in China and Korea. China developed and institutionalized a state-centered, inclusionist national identity, while Korea constructed an ethnic-centered, exclusionist national identity as they became integrated into the international order as nation-states. However, both China and Korea adopted jus sanguinis despite great difference in the ethnic structure of their nations and national identity. This shows that various political and economic factors rather than cultural factors such as national identity strongly influence the legal definition of

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citizenship in China and Korea. First, when the modern citizenship was established in China and Korea in the late 19th century, international legal practices, the household system, and the Japanese experience of adopting modern citizenship deeply affected their systems. Second, sovereignty, national security, and economic interests rather than national identities directly influenced the governments’ decision over dual citizenship both in China and Korea. Finally, both the PRC and ROK made important changes in their legal definitions of citizenship regardless of their distinct national identities in the past decade. Considering their national interests in the global era, both the PRC and ROK adopted new citizenship policies and defined new legal definitions of citizenship, which are often inconsistent with their existing national identities. Brubaker argued that citizenship is not a politics of interests, but a politics of identity in France and Germany. China and Korea are often viewed as strongly oriented toward their distinctive cultural values. Yet here we find the politics of interests is key to understanding citizenship in these two countries. Thus, my study strongly discredits culturalist explanations of the East Asian developments.

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CHAPTER ONE I. Introduction 1. Research Question Is “citizenship” determined by political and economic interests or by national identity?1 My research challenges the centrality of “national identity” in the culturalist approach for the cases of China and Korea. I argue that citizenship as a political institution is determined more by political and economic factors than by cultural factors like national identity in China and Korea. Contrary to neo-institutionalist arguments, cultural identity does not determine what national interests are in China and Korea.

Citizenship is not only the rights and duties of citizens, but also a decision of a nation-state about its membership. In this sense, citizenship is an important “social closure” in modern times. Non-citizens are excluded from the territory, the goods, opportunities, rewards, etc, that citizens can access (Brubaker 1992). This study focuses on citizenship as membership, that is the legal definition of citizenship by modern states. There are two important reasons why I study citizenship. First, citizenship is a very useful tool to analyze how economic, political, and cultural factors affect political institutions and policies of a state, which is a central issue among political sociologists and political scientists (Diamond 1993; 2000; Huntington 1991; Migdal, Kohli, and Shue 1994). Defining citizenship is one of the most fundamental policies of a state. The changes in legal definitions of citizenship directly affect citizens’ self-identity, rights and interests.

Brubaker (1992) defines “national identity” as a nation’s way of thinking and talking about nationhood or self-understanding of nationhood. I use the term in the same meaning. In this sense, national identity is a particular and most important form of cultural factor in relation to citizenship. 1

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Various social groups, on the one hand, and various cultural, political and economic factors, on the other, affect the definition of citizenship. The definition of citizenship is a reflection of culture, political will, economic interests, markets, and international institutions (Brubaker 1992; Jacobson 1994; 1997; Joppke 1998; Kymlicka and Norman 1995). Thus, we can evaluate the varying importance of these social factors over time by studying how citizenship changes in certain countries. Particularly, I focus on the relationship of political and economic interests and cultural identity to citizenship system. Second, a citizenship system is also a linchpin of the “nation-state.”2 The “nationstate” strengthens itself by defining its membership. On the one hand, the nation-state excludes foreigners from citizens’ rights because rights are costly in a world of scarce resources. On the other, the nation-state depends on citizens for the resources necessary for its reproduction (Torpey 2000). Citizenship systems also maintain nation-states by producing nationals who have a direct sense of community membership and loyalty to the nation-state (Marshall 1964). So the study of citizenship potentially serves as a window through which we can view the past, present and future of a nation-state (Jacobson 1994; Joppke 1995; Kymlicka and Norman 1995; Marshall 1964). My first hypothesis is that political and economic factors such as financial interests based on domestic legal practices, international legal practices, diplomatic considerations, economic interests, and non-government organizations (hereafter, NGOs) based on the principle of universal human rights occasionally change citizenship system as a political institution in ways that run counter to cultural values like national identity. My second

While the “nationness’ of a modern nation-state is represented by the legal boundary of citizenship, its ‘stateness’ is represented by sovereignty, the final control over a bounded territory and populace (Joppke 1995: 5-6). 2

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hypothesis is that political and economic changes such as globalization and international migration have remarkably transformed the legal definition of citizenship, and thus the foundations of nation-states in China and Korea.

2. The Study The focus of this research is on citizenship specifically in the People’s Republic of China (hereafter, PRC or China) and the Republic of Korea (hereafter, ROK or Korea) in relation to their national identities. China consists of more than 56 ethnic groups and maintains a state-centered, inclusionist national identity. The Chinese nation conceives itself as a political community of various ethnic groups (Chun 1996; Fitzgerald 1996). In contrast, Korea is ethnically homogeneous and sustains an ethnic-centered, differentialist national identity. In other words, the Korean nation conceives itself as a distinctive cultural, linguistic, or racial community (Cumings 1997; Em 1999). According to neoinstitutionalist argument, China’s state-centered national identity is expected to produce an inclusive citizenship policy toward non-Chinese immigrants that automatically grants Chinese citizenship to second-generation immigrants, naturalizing them as Chinese citizens. Korea’s ethnic-centered national identity is expected to be expressed in an exclusive citizenship policy that is remarkably close to non-Korean immigrants, but remarkably open toward ethnic Korean immigrants from China and the Soviet Union. However, despite ethnic-centered, differentialist national identity, the ROK’s citizenship was remarkably close to ethnic Koreans abroad until the 1980s. At the same time, despite China’s state-centered, assimilationist national identity, the Qing, the ROC, and the PRC adopted jus sanguinis as the primary principle of Chinese citizenship policy. Furthermore, the PRC further removed elements of jus soli and jus domicili from its legal 3

definition of citizenship in 1980. The big puzzle is why the two countries developed their citizenship policy in opposite ways to their national identities. In addition, recently both China and Korea switched their citizenship policy in opposite ways to their national identity (See Table 1). After the recent economic reforms, China bestowed “most-favored treatment” on ethnic Chinese immigrants from foreign countries in order to entice these people to invest capital and technology in China. Furthermore, the PRC recently started to selectively offer “permanent residency” to both Chinese immigrants from foreign countries and non-Chinese immigrants who met specific criteria such as investors, qualified technicians, and economists in 2001 (Anonymous 2001a). The Korean ethnic-centered, differentialist national identity was expressed only in its exclusionist citizenship policy toward non-Korean immigrants like Hanhwa (Chinese residents in Korea). However, new political and economic conditions such as a more open market, immigration, diplomatic normalization, and participation in international organizations have challenged the exclusivity of Korea’s citizenship policy toward ethnic Chinese. Policies on citizenship changed accordingly in the 1990s. The ROK introduced a “permanent residence system” for non-Korean foreigners in 2002. Today Hanhwa enjoy much more rights and secure legal status than Joseonjok (ethnic Koreans immigrants from China), in spite of South Korea’s strong ethnic-centered national identity. Another big puzzle is why the two countries switched their citizenship policies in ways that run counter to their national identities after the 1990s. [Table 1] National Identity Policy in the PRC and the ROK

and

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Changes

of

Citizenship

Multi-ethnic Single-ethnic and State- and Ethniccentered China centered Korea Political and 1940s Naturalization Rather Inclusive Economic to of Foreigner Change 1980s Ethnics with Rather Foreign Exclusive Citizenship

Exclusive Exclusive but rather inclusive toward ethnic Koreans with citizenship of the PRC and the Soviet Union

After 1990

Naturalization of Foreigner

Exclusive

Rather Inclusive

Ethnics with Inclusive Foreign Citizenship

Inclusive but exclusive toward ethnic Koreans with citizenship of the PRC and CIS states

My research suggests that political considerations of governments, the need for entrepreneurs, the pressure of (domestic and international) NGOs, and diplomatic relations are very helpful to solve the two big puzzles. In other words, political and economic factors rather than cultural factors such as national identities are more helpful in explaining definitions of citizenship or nationality policies both in China and Korea.3 For example, I argue that the Qing and the ROC adopted jus sanguinis and recognized

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Furthermore, political and economic factors have been challenging existing national identity itself. This is not the main issue of this dissertation but will be occasionally demonstrated in this dissertation.

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dual citizenship mainly because their sovereignty was threatened by extraterritorial regimes in China and neighboring colonies that were established by Western powers until 1945. In addition, changes in the PRC’s citizenship policy toward ethnic Chinese abroad are also explained by its political and economic concerns. The PRC was indifferent to ethnic Chinese abroad and pushed them to acculturate to the resident countries from 1955 to the late 1970s, because the PRC wanted to maintain good diplomatic relations with neighboring countries with great numbers of Chinese immigrants. However, it made efforts to attract ethnic Chinese immigrants from abroad and bestowed “most-favored treatment” on them after economic reforms in the 1980s. This was done because China, on one hand, needs investment from ethnic Chinese and high quality human resources (Anonymous 2001b) and, on the other hand, overseas Chinese entrepreneurs are eager for closer ties with China, and hope to increase investment and do more business there (Anonymous 2002).

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Chinese state-centered, assimilationist national identity was

occasionally expressed in its nationality policy toward foreign immigrants, but only when it was compatible with political and economic interests. For example, the PRC government gave citizenship to Korean immigrants just after the Revolution in 1949 when ethnic Koreans had ardently participated in the Chinese Revolution and already occupied some high positions in the government and party (Huang forthcoming). The ROK developed a citizenship policy that is remarkably close to ethnic Koreans abroad until the 1980s because authoritarian governments ruled it and did not want Koreans abroad to participate in anti-authoritarian movement. Thus, the ROK’s policy

In this study, “overseas Chinese” includes all people of Chinese descent living outside of the PRC (including Hong Kong and Macao) and Taiwan regardless of their nationality. Although the PRC distinguished huaren (ethnic Chinese with foreign citizenship) from Huaqiao (overseas Chinese with PRC citizenship) after the late 1950s, statements coming out of Beijing use the English term “overseas Chinese” 4

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toward ethnic Koreans became more open to ethnic Koreans after a democratic government was established in the 1990s. In addition, many guest workers came to South Korea from South Asian countries because of the “miracle” of the Korean economy in the 1990s. The question of guest workers’ rights generated enormous attention in South Korea. Domestic and international NGOs and labor movement organizations successfully pushed for several laws to guarantee guest workers’ rights, many of which previously were only given to Korean citizens. The feminist movement was also an important influence on changing the Korean Nationality Law, demanding citizenship for Korean women’s spouses and their children. This was won in 1997 with international NGOs’ support despite strong opposition from neo-Confucian groups that accepted only patriarchal lineage in South Korea. Additionally, Korean companies currently have a strong interest in accommodating high quality workers from foreign countries. Some powerful newspapers began to call for adjustments to relevant laws (Jung and Yi 2000) in 2000. As a result, the ROK’s citizenship policy became more open to non-ethnic Korean immigrants in 2002.

3. Methodology There are two main reasons why I chose the PRC and the ROK. First, existing studies of citizenship mainly focus on European cases. Examining some East Asian cases will expand the range of scholarship on citizenship. Study of citizenship in East Asia may help us both evaluate the achievements of the European case studies and reduce the risk of overstating their uniqueness. China and Korea have totally different cultural, legal, and

to translate both Huaqiao and huaren. 95% of them are foreign nationals. Their number is estimated to be between 25 million and 30 million, 80% of whom live in Southeast Asia (Bolt 2000; Wang 1993).

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political backgrounds from the oft-studied European countries, but they share certain commonalities such as religions, traditional legal system, and colonialization or semicolonialization by Western powers amongst themselves. Therefore, this research study should isolate some important factors that the European case studies ignored. Secondly, while China is a multi-ethnic nation-state, Korea is an exceptionally homogeneous one ethnic group nation-state. Thus, a comparative study of these two countries should help clarify the relationship between ethnicity, national identity, and citizenship. This research analyzes how national identity, political considerations, and economic interests can affect state policies that lead to expansive or restrictive definitions of citizenship. To make my research feasible, I focus on the official discourse on nationhood in order to depict national identity and on state policies to illustrate the treatment of citizenship. The proposed research strategy represents an effort to (1) examine the effect of national identity on citizenship policy through a qualitative cross-national and crosstime comparison, (2) specify the factors that have changed the rules of citizenship, and (3) demonstrate the limits of a cultural explanation, at least for these two cases. This research especially analyzes (1) the ROC and the PRC policies toward ethnic Koreans living in China and toward overseas Chinese who hold foreign citizenship in connection with Chinese national identity and (2) the ROK policies toward Hanhwa and toward overseas Koreans with foreign citizenship (focusing on Joseonjok) in relation to Korean national identity. One of the two big puzzles that I try to solve is why the two countries frequently switched their citizenship policy in opposite ways to their national identity. In order to solve the puzzle, this dissertation mainly analyzes citizenship policies of China and Korea toward ethnic Koreans in China and ethnic Chinese in Korea, respectively, although it also considers the legal status of non-Chinese foreigners in 8

Korea and Chinese with foreign citizenship in China. There are four main reasons why the focus is on ethnic Koreans in China and ethnic Chinese in Korea. These are: First, ethnic Koreans in China have the shortest history of immigration (at most 100 years) and have been relatively successful in maintaining their own ethnic culture. China regarded them as immigrants rather than an ethnic minority, at least until 1949. Therefore, the citizenship policy of the PRC toward ethnic Koreans should help understand its policy toward immigrants. Secondly, in parallel fashion, the citizenship policy of the ROK toward ethnic Koreans returning from China epitomizes Korea’s dilemma in deciding its policy toward all overseas Koreans: whether to follow the popular discourse on nationhood or economic and political interests. Third, ethnic Chinese in Korea have the longest history of immigration to that country (around 50 years), and most of them did culturally acclimatize themselves to the Korean society. The citizenship policy of the ROK toward them represents Korea’s citizenship policy toward ethnic others in Korea. Lastly, I have access to high quality information about ethnic Koreans in China and ethnic Chinese in Korea due to my Korean background and language skills. The scope of my analysis will be focused on comparing the changes in citizenship policy before and after the year 1990, both in the PRC and the ROK. There are three main reasons why this research focuses on this time period (See Table 1). First, in both the PRC and the ROK, existing citizenship policies have been challenged since 1990. The PRC opened to the world market and adjusted its socialist economic system to the new situation, while the ROK gave up its market protection policy and opened up financial markets in the 1980s. As a result, both China and Korea experienced increasing flows of migration, and both countries were pushed to change 9

their policies toward immigrants. For example, the question of foreign guest workers’ rights has recently captured the attention of the Korean people, who have supported foreign guest workers in their universal human rights. Non-government organizations (hereafter, NGOs) and unions challenged the existing citizenship system in Korea and the state adjusted its citizenship policy to the new situation. Likewise, a great number of foreigners and overseas Chinese have come to China to invest or to trade. These new situations, unprecedented in the PRC, threaten the existing citizenship system in China. Second, globalization and the rapid development of the information industry intensified competition in the world economy. In order to enhance their competitiveness, both the PRC and the ROK were forced to strengthen ethnic networks in the world and attract foreign high-tech “experts.” In response, both states changed their existing citizenship policies. Third, international relations more directly affected the citizenship systems. For example, the PRC, on the one hand, was pushed to consider international human rights codes since the normalization of diplomatic relations with Westernstates. On the other hand, the ROK’s political relationship with the Soviet Union (later, the CIS) and the PRC increasingly affected its policies toward overseas ethnic Koreans since the normalization of diplomatic relations with these countries in the late 1980s. This is due to the great number of ethnic Koreans residing in these countries. Russia, Uzbekistan, Kazakhstan, and the PRC are concerned about what they see as Korea’s political violation of their sovereignties.

Data: For national identity, I chiefly relied on official textbooks to demonstrate the main 10

discourses on national identities in China and Korea. Secondary data like existing studies of Chinese nationalism and Korean nationalism were also used. Dealing with citizenship, a variety of laws such as constitutions, nationality laws, migration laws, and laws of foreign investment were referred to. In order to analyze the main factors that recently changed citizenship, newspapers, documents from non-government organizations, government, and academia, and interviews with officials, scholars, and legislative movement participants were sources.

Terminology: In this dissertation, the “nation” is a political group of people who belong to a state, while “ethnie” or “ethnic group” is a cultural group of people who share language, culture, and myth of common ancestors. I use the term “national identity” as a nation’s way of thinking and talking about nationhood or its self-understanding of nationhood, using Brubaker’s (1992) terminology. Ethnic-centered national identity identifies nationhood with ethnicity and emphasizes cultural homogeneity of a nation, while statecentered national identity allows for the coexistence of various ethnic groups under a state and emphasizes a common political goal shared by a nation. In this sense, I also use the term “national identity” as a particular and most important cultural variable in relation to citizenship. And I use the term “citizenship” to mean particularly membership in a modern nation-state, while I use the term “subjectship” to mean membership of a premodern state. In English, the term “nationality” has two major meanings: (1) citizenship (or subjectship) and (2) nationhood. Thus, if I use the term “nationality,” I am at the risk of blurring my contrast between legal citizenship and national identity in China and Korea. I try not to use the term “nationality.” Yet, I sometimes need to use the term 11

“nationality” because both native Chinese and Koreans speakers usually use the term “nationality law” instead of “citizenship law.” In addition, I cannot help using the term “nationality” to mean legal membership of both a kingdom and a nation-state (subjectship/citizenship) because this research extends from the late kingdoms to recent nation-states in China and Korea. When I use the term “nationality,” it means citizenship/subjectship instead of nationhood. Simply, subjectship, citizenship, and nationality are decisions by states who may become its members (e.g., subjects or citizens). I use the term “denizenship,” the definition of which is “citizenship” with a few political rights denied, such as eligibility to vote in national elections. The “permanent residence system” or the “green card system” is used to grant denizenship to foreigners. In order to analyze citizenship, I use three terms: jus sanguinis (literally, law of the blood), jus soli (literally, law of soil), or jus domicili (law of residence). Although different states have different criteria for regulating access to their citizenship and these criteria are sometimes very complex, all laws on citizenship or nationality are based on at least one of these three basic principles. According to jus sanguinis, descendants of a national of the state concerned may gain an entitlement to citizenship regardless of their places of birth. On the contrary, according to jus soli, people who are born in the territory of the country may obtain the citizenship of that state regardless of their ethnic background. According to the principle of jus domicili, people who reside in the state’s territory for a certain period of time may gain citizenship. Jus sanguinis is a much more exclusionist principle than jus soli and jus domicile. Thus, states that are unwilling to allow citizenship to newcomers are inclined to adopt jus sanguinis exclusively. In practice, citizenship policies of all modern states combine jus sanguinis, jus soli, and jus domicili, although one of the three dominates over the others (Brubaker 1992; Castles and 12

Davidson 2000; Cheng forthcoming; Faist 2000). 5 Finally, denizenship is definitely regarded as one barometer that indicates the degree of a certain state’s inclusive citizenship policy (Jacobson 1997).

4. Outline In chapter 2, I review of the basic concept of national identities and the various approaches toward these issues. Also outlined are the implications of my research. In chapters 3 and 4, the historical background and formations of national identity in China and Korea are introduced, respectively.

Then, I will attempt to contrast the

inclusive (state-centered or multi-ethnic) Chinese national identity with the exclusive (ethnic-centered) Korean national identity. Chapter 5 and chapter 6 demonstrate how the definitions of citizenship developed in China and Korea, respectively. First, I will analyze how their national identities affected legal definitions of citizenship in China and Korea before the 1990s. Second, I will analyze the changes to the definition of citizenship since the 1990s. This will deal with the question of how national identity, political and diplomatic interests, and economic considerations affected legal definitions of citizenship in the two countries. For this purpose, (1) I will review the main characteristics of the new economic and political conditions and how these new conditions challenged existing citizenship policies of China and Korea toward ethnic Koreans in China and ethnic Chinese in Korea since the 1990s; (2) I will examine how national identity was resilient in the face of these political

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Jus sanguinis is the norm in most countries around the world; jus soli or jus domicili is a relatively infrequent variant, usually associated with jus sanguinis and often found only in modified form (Weil 2001). Hence the question is to what extent the attribution of citizenship depends on jus soli or jus domicili in countries.

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and economic challenges; and (3) I will analyze the outcomes of the challenges and resistances between national identity and new politico-economic situations. Therefore, in analyzing the data, this study will pay special attention to the following factors: (a) national identity, (b) political and diplomatic considerations, and (c) economic interests. In chapter 7, I will summarize my findings and theoretical implications of those findings. The limits of this research and future directions for study will be laid out.

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CHAPTER TWO II. Theoretical Review 1. Culture and Structure According to Lichbach and Zuckerman (1997), culturalist approaches and structural analyses are two of the three principal competing theories in comparative sociology and politics today. Structuralists study relations among actors in a social structure, and culturalists explore rules that constitute individual and group identities. Since Karl Marx published “Das Kapital” in 1867, structuralism has been one of the most powerful paradigms in social science. Although there are many versions of structuralism, most structuralists emphasize large-scale features of contemporary societies such as political and scientific revolution, capitalist development, the global market, state-building, diffusion of sciences, and secularization are the most significant processes shaping human identities, interests, and interaction (Katznelson 1997). In contrast, culturalists, who define culture as a system of meaning which people use to manage their daily worlds, argue that culture is the basis of social and political identity, which defines people and determines how they act on a wide range of matters. Culturalists regard culture as a framework for organizing the world, for locating the self and others in it, for making sense of the actions and interpreting the motives of others, for grounding an analysis of interest, for linking collective identities to political action, and for motivating people and groups toward some actions and away from others (Ross 1997).

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2. Culturalism vs. Structuralism in the Study of the Nation-state The nation-state’s character could be a central debate between culturalists and structuralists. Nation-states are not only political and economic communities but also cultural communities. National identity, which is one of the most important terms amongst culturalist approaches, is a cornerstone of a nation-state. Culturalists emphasize the old cultural origins of a nation-state, while structuralists highlight its political and economic foundations that came into existence in modern times. Renan was the first scholar who paved the way toward the scientific study of the nation against the pervasive Romantic belief in the longevity and power of historic nations, and revealed the close connection between a nation and political citizens of a state. He developed conceptions of nationhood based on political will, while also accepting the importance of cultural identity. He emphasized that politico-economic conditions such as material interest, geography, and military necessity affected the foundation of a nation, while he wrote, “a nation is… a large-scale solidarity, constituted by the feeling of the sacrifices that one has made in the past and of those that one is prepared to make in the future” (1882[1990]: 19). However, he did not explain what conditions were adequate for the creation of a nation, though he believed that the nation came about in company with the modern state after the French Revolution. Weber made more progress in delineating the nation in relation to citizenship. Weber distinguished the nation from ethnic communities, emphasizing its political aspect. He insisted that a nation could be understood only in the context of the modern state system, though he did not identify the nation with the people of a state. Therefore, Weber made it possible to distinguish the nation from other cultural and social communities such as the family and an ethnic group. Weber elaborated not only on the cultural conditions 16

but also on the economic / political conditions involved in founding a nation. He argued that newspapers, capitalist interests and political will often play central roles in the formation of sentiments of national solidarity although he did not disregard the importance of language (especially literary language), religion, memories of a common political destiny, and common descent (Weber, Mills, and Gerth 1946: 171-179). Since Renan and Weber, the thesis that the nation is both political and cultural has been an axiom among social scientists. But this notion can sometimes be very contradictory, like the axiom that light is both a wave and particles. Therefore, some scholars like Gellner, Hobsbawm, and Jacobson regard the nation as a cultural-political community. On the contrary, Armstrong, Brubaker, and A. Smith argue that the nation is a political-cultural community. Gellner (1983) illustrates the conditions for the advent of a nation. He writes that the nation can be defined only in terms of the age of the nation-states, rather than the other way around. In other words, nation-states are not the awakening and political selfassertion of pre-state and pre-national ethnic communities. On the contrary, they are the crystallization of new communities, which consist of equal citizens. The new community, a nation, is suitable for the conditions that prevail in industrial societies, though using as its raw material the cultural, historical and other inheritances from the pre-national world. But what makes the new conditions and what are the conditions? According to Gellner, industrialism is the key. With industrialization, a skilled, literate and mobile workforce became a prerequisite for the smooth functioning of a community. Cultural homogeneity and social mobility are crucial. If systematic mobility-inhibition occurs, industrial society is endangered. So industrialism needs the political authority that creates the requisite of interchangeability of individuals based on the cultural, historical and other inheritances 17

from the pre-national world. The political authority becomes the modern state through monopolizing the means of education, eroding sub-groupings and vastly disseminating literary-dependent high culture. That is the same process by which a new community crystallizes. Therefore, a state becomes the protector of its citizens’ culture and economy and, at the same time, a nation becomes the boundary of a state. In the long run, Gellner, as a structuralist, argues that the congruence of a homogeneous cultural community and a political community is inherent in the industrial era. Hobsbawm (1990) addresses the political and social dimensions of nations and nationalism. He writes, “Nations and their associated phenomena must… be analyzed in terms of political, technical, administrative, economic and other conditions and requirement” (1990: 10). Therefore, he explores the historical change in the idea of the nation since the French revolution. The nation is essentially constructed from above and is a social entity only in relation to the “nation-state.” In particular, Hobsbawm connects national identity to the development of citizenship. He writes, “Nations only exist as functions of a particular kind of territorial state or the aspiration to establish one — broadly speaking, the citizen state of the French Revolution” (Hobsbawm 1990). He also argues that the concept of the nation changes in relation to the nation-state and other politico-economic situations. Thus he thinks that the “nation-state” is “no longer the historical force it was in the era between the French Revolution and the end of imperialist colonialism after World War II” (Hobsbawm 1990: 169) because of changes in political, technical, administrative, economic and other conditions such as globalization. In contrast, Armstrong (1982) and A. Smith (Smith 1991; 2000) stress the cultural or ethnic aspect of a nation. They emphasize the importance of examining the history of

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collective cultural identities rooted in the long past. According to them, the effects of “cultural past” on the national present are crucial although many nations are both recent and novel. They criticize Gellner and Hobsbawm for being overly insistent on the economic and political aspects of nations; particularly, their insistence on the importance of economic interests and the primacy of politics over culture. Consequently, they argue that globalization is unlikely to erode the foundation of the nation-state for many decades to come. Smith assumes that “we cannot understand nations and nationalism simply as an ideology or form of politics but must treat them as cultural phenomena as well” (Smith 1991: vii). Although he always writes that the concept of the nation includes both ethnic and civic elements, he highlights the importance of ethnic or cultural ones. Therefore, he writes, “[My] ethnosymbolism regards the central components of ethnic and national phenomena as both sociocultural and symbolic, rather than demographic or political” (Smith 2000: 66). In the long run, structuralists distinguish the nation from other cultural communities such as the family and ethnic group and argue that equal citizenship, which is required by, and has resulted from, modern economic and political conditions, forms national identity based on old cultural elements. On the contrary, culturalists emphasize the power of cultural identity and argue that equal citizenship results from cultural homogeneity among citizens. Therefore, the question of whether citizenship is defined by cultural identity or political and economic conditions is a key debate between structuralists and culturalists.

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3. Culturalism vs. Structuralism in the Study of Citizenship T. H. Marshall, in his canonical work Class, Citizenship, and Social Development (1964), maintains that citizenship is the product of class struggle in Britain and makes citizenship an important topic in the social sciences, even though most scholars regarded citizenship not as a sociological and political issue but as a legal one. He demonstrates that the conflicts among social groups dramatically changed citizenship in his account of it as a process of incorporating the lower classes in Britain. Marshall also realizes that the development of equal citizenship produces a direct sense of community and develops loyalty to the state among citizens, although he does not directly connect citizenship to the study of the nation. Like Marshall, most sociologists and political scientists did not pay much attention to the citizenship issue in connection with the nation for the past 30 years, even though, as I mentioned previously, some of them noticed that citizenship is important to nationbuilding and that nation can be defined in the context of the citizenship system (Anderson 1983; Hobsbawm 1990; Smith 2000). As a result, “nation” remains one of the most ambiguous and elusive subjects despite many putative of studies of it (Tilly 1975: 6). Therefore, some scholars (Beiner 1995; Brubaker 1992; Jacobson 1997; Kymlicka 1995; Soysal 1994; Torpey 2000) recently have focused on citizenship as “the linchpin of the nation-state” (Jacobson 1997). These scholars regard “citizenship” as a much more researchable subject than a more general focus on the nation and, at the same time, view its boundary as mainly consistent with the boundary of a nation. However, structuralist and culturalist approaches compete with each other in the study of citizenship. Structuralists argue that equal citizenship originates in modern technical, economic and political conditions, which produces a direct sense of community and develops loyalty to 20

the state among citizens. In other words, structuralists argue that technical, economic and political conditions produce both citizenship and national identity. Therefore, structuralists claim that changes in the technical, economic and political conditions lead to changes in citizenship. Culturalists argue, to the contrary, that cultural identity produces citizenship. Presuming that national identity is rather stable, culturalists also think that the changes of technical, economic and political conditions by themselves are unlikely to lead to broad changes in citizenship.6 Brubaker (1992) strongly argues that citizenship is a secure basis of the nation. According to him, the nation is not only based on cultural identity, originating from the past, but also supported by contemporary notions of citizenship that produces national membership identity and, at the same time, are determined by cultural identity. Brubaker empirically analyzes the factors that affect citizenship and emphasizes the importance of cultural identity. He argues that distinctive and culturally rooted national identities shape and sustain differing definitions of citizenship. By so doing, he criticizes the argument that economic, demographic, or political interests immediately determine the definition of citizenship. He argues that “judgments of what is in the interest of the state are mediated by self-understanding, by cultural idioms, by ways of thinking and talking about nationhood” (1992: 16). He also writes: If the French understanding of nationhood has been state-centered and assimilationist, the German understanding has been Volk-centered and differentialist… The state-centered, assimilationist understanding of nationhood in France is embodied and expressed in an expansive definition of citizenship, one that automatically transforms second-generation immigrants into citizens… The ethnocultural, differentialist understanding of nationhood in Germany is embodied According to Rogers Brubaker and Frederick Cooper, scholars use several versions of “identity.” Although “soft” and “weak” understandings of “identity” among those versions are not stable, they are hardly used to analyze the relations between identity and citizenship (or sociological issues in general) (Brubaker and Cooper 2000). 6

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and expressed in a definition of citizenship that is remarkably open to ethnic German immigrants… but remarkably closed to non-German immigrants (Brubaker 1992: 1-3). Brubaker very persuasively explains expansive or restrictive citizenship in France and Germany. Brubaker’s explanation is also very useful in answering present-day questions of the inclusion or exclusion of ethnocultural minorities in Europe. He demonstrates how the definition of citizenship is shaped, mediated, and channeled by cultural arrangements. Therefore, he argues that the most important single variable affecting this boundary of citizenship is cultural self-identity embedded in the society and traditional legal practices. He regards any big reorientation of thinking and talking about national identity as very costly. Therefore, cultural self-identity is very stable (Brubaker 1996: 164). This makes Brubaker hesitant to accept rapid changes of citizenship and national identity. This makes it unnecessary for him to analyze mechanisms of change. Thus, from Brubaker, we see the resurrection of the culturalist perspective in the studies of citizenship. As opposed to Brubaker, Hollifield (1992), Soysal (1994) and Jacobson (1994; 1997) elaborate on the effects of the global market, international migration, and international (or transnational) institutions on citizenship, and, therefore, the nation-state. They argue that political and economic forces are challenging the cultural basis of classical citizenship and the nation-state. In particular, Hollifield (1992) emphasizes that the “logic” of market and growth of political liberalism increase international immigration, which comes into direct conflict with older norms of the nation-state. I began this book with a relatively simple question: why has it been difficult for liberal states to regulate immigration?... An obvious explanation for the persistence of immigration can be derived from economic theory, which has spawned numerous “push-pull” arguments. Given the inequalities among national economies, it is

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perfectly rational and not terribly surprising that individuals in poorer states would seek to migrate to richer states to improve heir quality of life and standard of living… But why have the richer liberal states allowed large-scale migration at particular moments in history, and why in the postwar period has it been so difficult for these states to assert control of immigration?... A second explanation for the prominence of international migration in the modern period is derived from Marxist-Leninist theories of exchange. According to this argument, migrants represent a surplus pool of labor (an industrial reserve army) which helps capitalist economies overcome periodic crises… Finally, the realist/statist argument is that immigration—like trade, capital flows, and other forms of international exchange— is a function of the interests of the sovereign state… According to this logic, the states should be capable of controlling its borders, managing its population, and using foreigners as a resource to regulate population growth, labor supply, and human capital (Hollifield 1992: 214-216). Despite nationalist and anti-immigrant movements, nation-states allow international migration. At the same time, political liberalism has extended civil, political, and social rights in Western European countries to individuals who are not full members of the societies in which they reside. Thus, immigrants have been transformed from “expendable commodities’ into “potential citizens.” In other words, modern citizenship has been transformed by economic and political factors. Furthermore, he argues that international migration comes into direct conflict not only with older norms of nationstate but also with ongoing national identity (Hollifield 1992: 3). Jacobson (1994; 1997) emphasizes the effects of international institutions, particularly NGOs and international human right codes, and international migration on citizenship. Jacobson writes: Generally, globalization is understood to refer to the internationalization of the economy: that the manufacturing of medium and high technology products cannot be supported by any single country or region in terms of capital, research resources or markets. Thus the state is losing its sovereign control over its economy and many major corporations have become transnational. Globalization is, however, more than economics. The massive cross-national movements of migrants may be more significant than economic developments in the long term as it is eroding the cornerstone of the nation state, namely, citizenship. Ecological concerns have also taken on a transnational importance. International institutions and, in particular,

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international human rights codes, have assumed unprecedented salience (1994: 2). He thus argues that the development of human rationality supports transnational human rights and the growing transnational links and growing power of various NGOs surpass the boundaries of the nation-state. As a result, a set of rights for the migrant almost equal to the rights of a citizen developed and citizenship was devalued. Finally, larger (suprastate) regional blocs defined the state’s role and replaced (or re-constituted) Cold War inter-government organizations so that states increasingly became regulative mechanisms of a wider community and set of ideas and beliefs. Jacobson argues that nation-state is turning on its head. He thus writes, “Human rights evolve from the nation-state, a step, so to speak, in a historical progression. Yet human rights transcend, adapt, and transform the nation-state” (1997: 3). Soysal (1994) focuses on the changing structure and citizenship in the Western European countries in recent several decades. She devises the term “post-national membership” to capture the major feature of this change in citizenship. The increasing flow of goods and persons and the large magnitude of labor migrations after World War II disorganized the classical model of nation-state membership. The boundaries of membership are fluid and universal personhood replaces nationhood in the post-national model. The post-national model implies multiplicity of membership, while the classical model has a single citizenship. However, the nation-state remains the central structure regulating access to social distribution. Thus far, we have reviewed rival paradigms in the study of the birth and development of nation-states in Western Europe. Structuralists (Castells 1993; Gellner 1983; Hobsbawm 1990; Hollifield 1992; Jacobson 1994; Kymlicka and Norman 1995; Soysal 1994) emphasize technological, economic and political conditions for nation24

states and argue for the modernity, fading, and short future of the nation-states. On the contrary, culturalists (Armstrong 1982; Brubaker 1992; Smith 1991; 2000) stress the ethnic origins of the nation-state and argue its antiquity, presentness, and longevity. These theoretical paradigms signify specific political sociologies of the nation-state. More importantly, these theoretical paradigms underlying the debates on the nation-state have significant implications for overall perspectives of social change. This research examines the cultural foundation of the nation-state focusing on citizenship. At the same time, this study analyzes the interrelations among culture, market, and domestic and international (or transnational) politics.

4. Culturalism vs. Structuralism in the Study of the East Asian Case Although there are not many studies of citizenship boundary in relation to culture in East Asia (which here is defined as China, Japan, South and North Korea, Taiwan, Hong Kong, and Singapore), there are many studies that emphasize the role of cultural tradition with regard to unique East Asian economic and social development trajectories. However, the opinion of Western academia on the role of Confucian culture in East Asia changed sharply in the last several decades. While a negative evaluation of Confucian culture was prevalent until the 1970s, the reputation of Confucian culture dramatically changed to a positive one with the East Asian “economic miracle” after the 1980s. For example, Weber (1922[1964]) contrasted Confucianism with Protestantism to demonstrate that Confucianism is the major factor that prevents capitalism from developing in China. According to Weber, a comparison of the economic and political structures in China and Europe yielded no decisive distinction in terms of conditions for capitalist development. However, Confucian values lacked the dynamic motivation that 25

Protestantism had for capitalist development in Europe. Therefore, to explain why capitalism developed in Europe instead of in China, he laid the blame on the passive and conservative character in Confucian culture. Parsons (1977) provided a summary of the negative opinion about Confucianism, which was dominant in Westernscholarship before the dramatic East Asia economic achievements in the 1980s. He emphasized that Confucianism disseminated the idea of similarity between family and society, so China did not develop the rational law system that the social structure of a modern society needed. In addition, Confucianism did not promote professional competence but emphasized gentlemanly self-cultivation. As a result, Confucian culture was not conducive to a differentiated and specialized economic structure. However, academic opinion on Confucianism dramatically changed from negative to positive as Japan, Taiwan, Singapore, South Korea, and China successionally burst onto the world scene from the 1970s through seemingly miraculous economic successes. As a result of its uniquely rapid modernization, East Asia now became one of the major regions contending for world superiority, as considered by some combination of economic, political, and military capacity. Many scholars thus sought to explain the reasons why the East Asia region became a great success. Not one country but an entire region was prominent on the world scene. Scholars began to pay attention to Confucian culture because Confucian culture was a notably common feature among the East Asian countries (Hamilton and Biggart 1988; Jacobs 1985; Pye and Pye 1985; Rozman 1991). The culturalist approach that attributed rapid modernization in East Asia to Confucian

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culture gained currency.7 For example, Rozman (1991) argued that the popular stereotype outlining qualities associated with people across much of East Asia can explain the development of the East Asia. He stated, East Asians are said to be characterized by self-denial, frugality, patience, fortitude, self-discipline, dedication, rote learning, and aptitude for applied sciences and mathematics… East Asian group members are noted for the following qualities: group orientation, acceptance of authority, deference, dependence, conflict avoidance, interest in harmony, seniority consciousness, and dutifulness… individuals work hard to satisfy the expectations of the group… the East Asian tradition of central imperial authority or hierarchical samurai loyalty established a framework for concerted national action. On the international arena—whether in forging export markets or in mobilizing for war—the centralized potential of these vertically organized societies [in the East Asia] produces a formidable adversary (Rozman 1991: 27-32). Rozman’s argument sounded reasonable because the East Asian cultural characteristics listed by him mesh with the stereotype of East Asian individuals and seem to explain the strengths of the countries’ economies. Despite these scholars’ rather contradictory evaluations of the impact of Confucianism on East Asian society, they share the argument that culture is the most important single factor that determined a unique way of doing business and economic policy making in East Asia. However, modern East Asian thinkers and political leaders sought to reinterpret Confucianism and emphasized certain elements while downplaying others in order to mobilize people into state-building and economic development. Even when they employed Confucian terminology, they developed new ideas and values for state-building and economic development.8 Thus, since it is very difficult to distinguish

7

For culturalist studies of East Asia, see Leung (1994). Development of new ideas using old terminology was already observed and well explained by Marx. He writes, “Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly found, given and transmitted from the past. The tradition of all the dead generations weighs like a nightmare on the brain of the living. And just when they seem engaged in revolutionizing themselves and things, in creating something entirely new, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their 8

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the effects of traditional culture from those of economic and political structures and interests on the East Asian countries, scholars are likely to misinterpret the results of economic and political factors as those of cultural factors. As I previously mentioned, culturalists argue that citizenship is “a politics of identity,” which is opposed to “a politics of interests.” Identity is used to underscore the manner in which action – individual or collective – may be governed by culture rather than political and economic interests (Brubaker and Cooper 2000). This dissertation examines the politics of citizenship in China and Korea that are alleged to be strongly determined by national identity. This dissertation reveals, on the one hand, that economic and political factors rather than national identity determine citizenship in China and Korea. On the other hand, this dissertation shows that citizenship, which was shaped by political and economic interests, often changes national identity in the two East Asian countries. By doing so, this dissertation provides a serious caution against the prevalent culturalist explanation of the East Asian development and highlights the importance of understanding economic and political conditions.9

service and borrow from them names, battle slogans and costumes in order to present the new scene of world history in this time-honored disguise and this borrowed language (Marx 1852[1978]: 595).” 9 Weber does not consider culture in general to be “the decisive element” in social transformations (1978: 577). Geertz, who is one of the most important figures to pave the way for culturalism, also cautions about the risk of the culturist approach. He writes, “The danger that cultural analysis… will lose touch with the hard surfaces of life—with the political, economic, stratificatory realities within which men are everywhere contained—…is an ever-present one (2000: 30).”

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CHAPTER THREE III.

Development

of

State-centered,

Inclusionist

Nationalism

(Aiguozhuyi or patriotism) in China From the pre-modern period China developed centralized states and traditional economies consisting of many ethnic groups. Indeed, China was sometimes ruled by other ethnic groups than Han Chinese.10 Then in the 1800s China encountered the threat of Western imperialism and hurriedly attempted to build a nation-state to survive. This experience was totally different from what most European countries experienced. The Chinese nation-state building was quite different from that of Western Europeans (Wong 1997; 1999). Through the uniquely rapid social change in the past century China developed a new national identity in a relatively short period of time. The considerations of state (or national) interests like national security and human resource mobilization for independent nation-state building was a “must”(Lee 1999). Most of all, facing various internal and external threats, Chinese political leaders had to emphasize state nationalism and state sovereignty instead of ethnic nationalism and local autonomy in order to build a strong and rich nation-state (Zheng 1999: 25). Thus, Michael Hunt (1993) argued that using the concept of ‘state-centered nationalism” or “patriotism” (in Chinese aiguozhuyi, literally the “ideology of loving the country”) is better than using the term “nationalism” to express Chinese identity from the late Qing to the founding of the PRC in 1949. He

10

Han is the majority ethnic group in China. Han was a Chinese dynasty (206 B.C.-A.D. 220) noted for unifying and expanding its national territory and for promoting literature and the arts. Thus, Han originally meant the people of Han who were themselves heterogeneous. For a long time Han was the synonym for Chinese, which originated from Qin, the previous Chinese dynasty (221-206 B.C.). However, as China expanded in its territory and Chinese began including more ethnic minorities, the meaning of Han Chinese diverged from that of Chinese. In Chinese, Han Chinese is Hanzu, while Chinese is zhongguoren or zhonghuaminzu.

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writes, Nationalism, the term usually favored to describe the process of cultural consolidation and state building in the modern era, may not the best term to apply to the Chinese case… Chinese historians have recently begun to give greater attention to patriotism (aiguo zhuyi). They have done so on the basis of compelling textual evidence that suggests that term enjoyed wide currency across political lines over the decades treated here (no less than in more recent times) (Hunt 1993: 63). Although Hunt focuses on the period before 1949, the term aiguozhuyi is also applicable to the Chinese national identity under the PRC. China’s pre-modern experience of maintaining a multi-ethnic, inclusionist state and the contemporary threat from outside both contributed to building China’s state-centered, inclusionist national identity (Kim and Dittmer 1993). In particular, the Chinese Revolution in 1911 and the Chinese Communist Revolution in 1949 repeatedly confirmed its state-centered national identity.

1. Historical and demographic background of State-centered, Inclusionist Nationalism and National Identity in China Although there is an enormous amount of literature dealing with the concept of nations, no single definition can cover all aspects of the phenomena. This is especially applicable to the Chinese nation, which is multi-faceted and many-layered. The Chinese nation includes Han Chinese and more than 400 self-styled non-Han ethnic groups, 55 of which are officially recognized minority groups (Dittmer and Kim 1993). Additionally, the Han Chinese are not a homogeneous group, since they are divided by localism and dialect. Finally, from the end of the 19th century until now, rapid social change in China quickly transformed the Chinese identity, so many different “Chinese identities’ coexisted during the same time (Duara 1996; Townsend 1996). To understand the Chinese nation, it is necessary to trace the background and the

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character of nation-building in China. Late traditional China was a country that had a long history; there was a common culture, a developed market, a long-standing education system, and a traditional political structure. In the late Qing dynasty (1644-1911) there was an impressively homogeneous elite life style consisting of, among many other things, classical learning, avoidance of physical labor, distinctive styles of dress and home furnishings, and Confucian rituals (Cohen 1991). Furthermore, Confucian rituals firmly linked China’s common people to a national culture through their emulation of local elites. The Chinese examination system, with its promise of potential upward mobility, also encouraged cultural interchange between the elite and ordinary people. Surprisingly, more than two-thirds of the Chinese population could speak a variant of Mandarin in late imperial times despite its huge population and territory and lack of modern communication and transportation systems (Wong 1997; 1999). Cohen analyzes two major factors that spread and reproduced Han culture across China: (1) The state’s ability to define a national elite through an examination system requiring the mastery of a standard curriculum; (2) China’s well-developed traditional economy which linked large regions into marketing arrangements, supported a high degree of urbanization, and involved large-scale circulation of merchants and commodities (Cohen 1991 116-117). Therefore, Duara (1996) argues that there was the widespread presence of common cultural ideas that linked the state to communities and sustained the polity in China even though the reach of the bureaucratic state was limited. In addition, pilgrimage, migration and sojourning and the states’ active promotion of material welfare, especially of the poor and of peasants, linked villages to wider communities and political structures in China (Wong 1997). Although China was occasionally divided by wars and conquests, it maintained a centralized polity for a long time. In particular, after Yuan conquered China

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in 1279, China maintained a centralized polity for over 600 years except for 26 years of war between Ming and Qing. The last Qing alone lasted and maintained a centralized government for about 300 years. Thus, the Chinese case might disprove the claim of radical disjuncture between pre-modern states and nation-states based on the European experiences.11 The notion of a “nation” is very modern in Chinese. However, the traditional Chinese had their self-identity that their community (empire) was a civilization whose boundaries were determined by the knowledge and practice of principles expressed through China’s elite cultural tradition. They called this civilized community tianxia, which meant the world in Chinese (Townsend 1996). Although the Chinese traditional identity was quite different from a modern national identity,12 Chinese national identity developed out of it. The Chinese traditional identity was likely to lend its ideas to an inclusionist rather than an exclusionist nation identity. This is because the traditional Chinese identity was based on learned characteristics rather than fixed or inassimilable ones, while it is based on the thought that the Chinese people rested in principle on superior cultural attainments. In other words, the traditional Chinese identity was open toward barbarians and differed from ethnic-centered identity: the Chinese traditional identity did accept as part of the political community people not born into the community, whereas the ethnic-centered conception refused to, despite their educability into Chinese

11

This is truer for Korea, which maintained three centralized Kingdoms for over 1,200 years except for 35 years of civil war between Silla and Goryeo. The last Yi Dynasty alone lasted and maintained a centralized government for over 500 years. 12 For the difference between a modern national identity and a proto-national identity, see Gellner (1983) and Weber (1976). I also distinguish national identity from proto-national identity or ethnic identity. The former is rather based on a modern nation-state and its equal citizenship, while the latter is based on blood ties and cultural unity.

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values (Duara 1996: 34-36). Actually, as non-Han ethnic dynasties ruled tianxia almost 1,000 years and the boundary of both tianxia and the Chinese people notably expanded, the political aspect of the Chinese identity inevitably expanded. According to Pamela K. Crossley (1999: 36-52), the emperorship developed by the Qing dynasty tended to produce a political identity beyond the limitations of a single cultural affiliation, which would deeply affect national identity in modern Chinese. The ancestor state of the Qing was an inclusionist regime, which dominated over all people native to its territory regardless of their cultural and ethnic background. In addition, the Qianlong (1736-95) emperor rather successively developed an inclusionist Chinese identity, encompassing various social groups with differences in culture, religion, and economy in the Qing empire. Therefore, Crossley writs, “There is at this time little persuasive evidence that China before the Taiping War [(1850-65)] was beset by deep or intractable racial animosities’ (1999: 342).

2. Ethnic Nationalism vs. State Nationalism: Late Qing (until 1911) After the Chinese defeat in the Opium War (1839-42) and the Sino-Japanese War (1894-95), modern Chinese intellectuals, such as Kang Youwei (1858-1927), Liang Qichao (1873-1929) and Zhang Binglin (1869-1936), agreed on the necessity of political change to strengthen China to withstand the pressures of international competition. In order to build the strong Chinese nation-state, they, first of all, had to transform traditional patriotism based on loyalty to the emperor to a nationalism based on popular sovereignty. They knew that national unity depended on overcoming status distinctions and provincial differences among the Chinese people. They tried to transform traditional subjects into modern equal citizens (Wong 1999). On the one hand, they criticized 33

traditional Chinese culture in order to develop a new Chinese nation of equal citizens. On the other hand, they used this culture because nation-building mainly depended on premodern cultural resources. However, they were divided into two camps in their view of the proper strategies to be needed to mobilize the people and in their emphases on different aspects of Chinese national identity: one group that included Kang Youwei and Liang Qichao wanted to mobilize the people of the traditional political community and emphasize a state-centered Chinese identity, and the other that included Zhang Binglin tried to mobilize the Han Chinese and emphasized an ethnic-centered Chinese national identity. The members of the first camp tried to transform the traditional cultural definition of the Chinese identity into political nationalism (Levenson 1958). They challenged tianxia in the name of guo, which was a political community.13 Therefore, Zhongguoren meant the people or citizens of China, including minorities in the Chinese empire. In order to enhance the harmony of China, Kang Youwei even insisted that the Manchus and the Mongols belonged to the same “race” as the Han. Liang Qichao exonerated the Manchus for creating China’s problems and rejected an anti-Manchu revolution in1900 (Chow 1997). The members of the first camp mostly advocated reforms within the existing Qing State and the maintenance of its territorial boundary. The members of the second camp, however, thought that the abolition of the Manchu government was the prerequisite for strong Chinese nation-state building. Zhang Binglin and the revolutionaries emphasized the traditionally widespread belief of a kinship bond and grafted it on to the newly introduced concept of race. They used the

13

In Chinese history, guo was a local political unit within tianxia.

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term minzu,14 which meant a biologically specific entity or ethnic nation (Peng 1985). By 1895 minzu began to reappear in Chinese revolutionary journals; it also became popular among intellectuals (Dikotter 1997; Han and Li 1984; Wu 1991). They also deliberately constructed Han Chinese ethnic identity and mobilized Han Chinese against the Manchu government evoked Han ethnic nationalism (Chow 1997). Zhang devised the term Hanzu, which meant “Han race” or “Han ethnie.” Zhang promulgated that Han Chinese were the descendents of Huangdi (Yellow Emperor; purportedly born in 2704 B.C.)15 and evoked the cult of him. However, Zhang also used the term Zhonghua minzu, which meant the Chinese nation denoting not only the blood bond of the Chinese but also their tie to the land. Using this term, he stated that minority ethnic groups could become Zhongha minzu through accepting Chinese culture. Zhang opened a narrow door toward minorities (Chow 1997: 50). Sun Yat-sen and other radicals were successors of Zhang Binglin. They highlighted two principles of nationalism—that is, state-building based on Han ethnicity and popular sovereignty based on democracy—to reorganize China. Therefore, they advocated ethnic nationalism and disseminated ethnic-centered Chinese identity among Chinese against the Qing government in the 1890s and 1910s. However, Chinese nationalists demanded that the future Chinese nation-state should assume the entire territory of the Qing empire. As the end of the Qing empire looked inevitable and separatist movements began to take

14

The term minzu (read minzoku in Japanese, minjok in Korea) was adopted from Japanese. This term was a neologism created in Meiji Japan. According to Em, Miyazaki Muryu translated the French Assemblee Nationale as minzoku kaigi in the early 1880s. Its meaning, however, approached the German Volk or Volkschaft after the 1890s when understanding of the term became more fixed in Japanese political discourse. Minzoku came to mean the ethnic nation (Em 1999). However, I think that minzu (therefore, minzoku also and minjok) originally connoted kinship because this term came from zu that meant a family with a common ancestry (Chow 1997: 39-44; ; Crossley 1999: 346). 15 The ancient historian Sima Qian (145-91 B.C.) in Shiji, which was regarded a prototype of historiography for 2,000 in China, started Chinese history with the myth of Huangdi (Chow 1997: 47).

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form in Manchuria and in Mongolia against Han-ethnic nationalism, Han-Chinese nationalists, most of whom had been sympathetic to Zhang Binglin’s ethnic-centered, exclusionist nationalism, turned to the other state-centered, inclusionist nationalism by the 1911 republican revolution (Crossley 1999: 337-344).

3. Development of State Nationalism: The Republic of China (1912~1949) The 1911 republican revolution resulted in decentralization and strengthened separatist movements among ethnic minorities such as Manchus, Mongols, and Tibetans. Making a strong Chinese state, which required a centralized political force, became difficult. By the early 1920s, China entered a period of chaos under localism and warlordism. Anti-Manchu Chinese nationalists like Sun realized that without strong political institutions and ethnic integrity, any type of democratic regime would fragment China into small and weak states. Once the nationalist state emerged from the turmoil of revolution in 1912, therefore, anti-Manchu Chinese nationalists strongly asserted sovereignty over old imperial territories and believed that non-Han minorities should face no barrier to being incorporated into a Chinese nation-state (Fitzgerald 1996). For example, Sun Yat-sen turned from exclusionist nationalism and ‘state-building based on ethnicity” to inclusionist and state-centered nationalism (Crossley 1999: 344),16 while he emphasized centralized party leadership instead of “democratic sovereignty” (Zheng 1999: 27). It is true that the Chinese leaders and intellectuals often appealed to the ethnic nationalism of the Han Chinese under the threat of foreign imperialism. However, their

16

In reality, Sun started to change his exclusionist, Han-ethnic rhetoric to the inclusionist, pan-Chinese rhetoric after 1905 rather than after 1912 (Crossley 1999: 344).

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nationalism was not a goal but a means to build a strong nation-state (Zheng 1999: 17). Most of all, they were realistic enough to accept that non-Han ethnic groups occupied between 50 and 60 per cent of Chinese territory (Brugger and Reglar 1994; Chow 1997: 52). Excluding those ethnic groups and their territory, China could not be a great nationstate. During the early years of the Republic, Chinese intellectuals thus used the term Zhonghua minzu rather than the term Hanzu to mention the Chinese nation. They commonly regarded the ethnic population of territorial China as synonymous with the concept of a single political community. They associated Zhonghua minzu with their land. The meaning of Zhonghua minzu (the Chinese nation) approached closer to that of Zhonguoren (the citizens of China). For example, Sun Yat-sen clearly underlined “the notion of a bounded citizens as the distinctive feature of nationhood (Chun 1996).” Sun’s successor Chiag Kaishek upheld Sun’s ideas of the state-centered nation. He used the Nationalist Party in an attempt to restore unity, order, and ultimately China’s lost greatness under the threat of Western powers (Zheng 1999). He also stated that all inhabitants of China belonged to the Chinese nation (Lee 1999). When the ROC promulgated the Provisional Constitution on March 11 1912, Article 3 of it thus made clear that, “The territory of the Chinese Republic [ROC] consists of 22 Provinces, Inner and Outer Mongolia, Tibet and Chinghai [Qinghai].” (Pan 1946: 150) Article 5 of the Provisional Constitution wrote, “Citizens of the Chinese Republic are all equal and there shall be no racial, class or religious distinctions.” (Pan 1946: 150) Additionally, the ROC government17 officially used the five-color flag as its national flag in 1912-1929. The five-color flag had 5 horizontal stripes, from top down red, yellow,

17

Actually, there were two ROC governments: a warlord government in the North and a nationalist government in the South. Both Chinese governments adopted the Five-color flag as its national flag.

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blue, white and black. The flag symbolized the unity of various ethnic groups in China.18 As Anderson (1983), Gellner (1983), and A. Smith (1991) have pointed out, history education through the state education system has played a major role in forming common myths, common historical memories, and, therefore, national identity. The nationalist government of the ROC understood this well. The government vigorously disseminated the idea of a multi-ethnic national identity through its education system. The Department of Education decided gradually to change the contents of official textbooks that were not in accordance with the decree of the ROC in 1912. The Standard of History Education in High School, published by the ROC in 1940, promulgates this goal: In order to help students realize the totality of the Chinese nation and promote their loyalty toward the Chinese nation, describe how the Chinese territory expanded and multi-ethnic and multi-cultural situations developed, highlight the relationship of mutual dependence among various Chinese ethnic groups (Yan 1995: 12). Under the nationalist government, Chinese students had to learn history, geography, and citizens’ ethics for six years in elementary school. In high school, they had to take a history class two hours per week for 6 years. It was no wonder that the official concept of the “Chinese people” included four major non-Han ethnic groups, descendants of what were formerly referred to as barbarians: the Man (Manchus), the Meng (Mongolians), the Hui (ethnic groups of Islamic faith in northwestern China), and the Zang (Tibetans) by 1949 (Wu 1991: 162). Although the nationalist government moved the identity of the Chinese nation in the state-centered, inclusionist direction, ethnic characteristics remained in the Chinese identity. Both the nationalist government and Chinese people in general thought that the Chinese nation, i.e. Zhongguoren, included overseas Chinese in this period. However,

18

http://www.crwflags.com/fotw/flags/cn-nqta.html.

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this not only reflected the Chinese identity’s emphasis on lineage and ancestry but was also the result of the role that overseas Chinese played. Overseas Chinese, most of whom did not have full citizenship and suffered from discrimination in countries where they resided, played important roles in the 1911 Revolution which established the ROC, in the Anti-Japanese War, and in the Civil War (Cheng forthcoming).

4. Confirmation of State Nationalism under Communism: The People’s Republic of China (1949~) 4.1. Anti-Chauvinist State Nationalism during Mao Period (1949~1978): The Chinese Communist Party (hereafter, CCP), like the Nationalist one, saw itself as an institution for “representing” the nation’s people as a whole. However, the communists pushed the concept of the Chinese nation beyond race and traditional high culture, by the CCP isolating class as the essential feature for membership in the nation. For example, the CCP named the members of the ruling class under the Nationalist regime and “traditionalists” as “vanguards of capitalists” and “reactionaries,” and excluded them from full citizenship in the PRC despite their Chinese ethnicity. By so doing, the CCP moved Chinese nation identity a little further in the direction of political, state-centered identity (Fitzgerald 1963: 80). 19 The Communist Party successfully transmitted its nation-state ideas to Chinese peasants by sending its officials to rural areas (Zheng 1999: 29). The victory of the CCP and the founding of the PRC in 1949 brought a more dominant status to multi-ethnic state nationalism in China. As Fitzgerald (1996) mentions, the state (or state-builders) retained the right to define national identity and to specify its

39

relationship to the state without question in China. The state and the CCP leaders clearly defined the official concept of national identity in the Preamble of the Constitution of the PRC adopted in 1954: “All nationalities of our country are united in one great family of free and equal nations. This unity of China’s nationalities will continue to gain in strength, founded as it is on ever-growing friendship and mutual aid among themselves, and in the struggle against imperialism, against both dominant-nation chauvinism and local nationalism” (China 1962). This suggests that the CCP felt China was composed of multiple nationalities. The PRC invented common myths and historical memories and transmitted those myths and memories to the people in its territory. The communist government began to systematically promulgate its state-centered national identity both to Han Chinese and ethnic minorities through the state and education systems. In a meeting of the central political bureau that the Chinese Communist Party (hereafter, CCP) held in May 1953, Mao Zedong ordered many able party officers to publish good textbooks for students. Following Mao’s order, the PRC government established Renmin Jiaoyu Chubanshe [People’s Education Publisher], which published all textbooks including history textbooks for elementary, middle, and high school students until the beginning of the 1990s (Yan 1995).20 The department of history education in Renmin Jiaoyu Chubanshe outlined the goals of history education and the editorial direction of the history textbook. Two of them are:

19

For the general linkage between revolutionary and state-centered nationalism, see Hobsbawm (1990). From 1992, all individuals and publishers capable of publishing textbooks were allowed to publish textbooks, although they were required to follow the principles that the State Education Committee outlined (Yan 1995). 20

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(1) China has been a united state of many ethnic groups for a long time. The textbooks must impartially describe the histories of ethnic minorities to demonstrate how those minorities have participated in developing China in relation to historical incidences and concrete developments in order to express in detail the contributions of each minority to construct China… (4) Textbooks of history should promote patriotism, national pride, and self-confidence (Yan 1995: 17). Following these directions, Renmin Jiaoyu Chubanshe published 2 history textbooks for elementary school students, 6 for middle school students, and 6 for high school students in 1956. Students were required to take a 2 to 3 hour history class every week for about 5 to 8 years until they graduated high school in China. In addition, they also had to take extra politics and ethics classes, which also emphasized Chinese state-centered nationalism. The endeavor of the PRC to unite various ethnic groups into a Chinese nation and to build a strong Chinese state went far beyond that of the former nationalist government before 1949. The PRC’s achievement is notable. Schurmann revealed the nature and achievement of the PRC in 1968: Chinese communism came to power and created the present People’s Republic of China through revolutionary struggle. The last decade and a half in China have witnessed a human drama played out by great and small men who have used organized political power for many different ends. They have rebuilt a great country, disciplined its people, improved the conditions of life, and laid the foundations for growth… Communist China is like a vast building made of different kinds of brick and stone. However it was put together, it stands. What holds it together is ideology and organization (Schurmann 1968: 1). Renmin Jiaoyu Chubanshe has revised and republished history textbooks in subsequent years. However, the goal of imprinting students with patriotism and multiethnic state nationalism never changed. Additionally, China enacted a law to increase the obligatory term of education to 9 years in 1986. So the effect of the official state nationalism on Chinese people became more powerful than before.

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A textbook of Sixiang Pinde [Thought and Morality] for elementary students, published by Renmin Jiaoyu Chubanshe in 1999 writes: Our country is a multi-ethnic nation-state consisting of 56 ethnicities. For thousands of years, all ethnicities together have lived in this territory, have developed Chinese culture, and have participated in building a great China. Although we have different costumes, languages, and customs, we live together like a family. The unity and the harmony of ethnicities are the necessities of the prosperous development of our fatherland… We should act so that we promote the unity of ethnicities (Li, Zhang, and Zhao 1999: 58-59). In addition, this textbook tells the history of cooperation between the Red Army and Yizu (Yi minority) in May 1935. All Chinese elementary students read this story. It is very likely that this history makes the students imagine a multi-ethnic Chinese nation. Between 1949 and the 1980s both Han and non-Han ethnic nationalism were attacked. The Chinese were no longer represented as the descendants of Huangdi (the Yellow Emperor). The PRC not only prohibited veneration of the Yellow Emperor, but also often unfavorably portrayed the Yellow Emperor in the PRC until the mid-1980s. Textbooks questioned the historical existence of Huangdi. If Huangdi had existed, textbooks claimed, his role would have been to protect the interests of noble tribal leaders by fighting other tribes and oppressing and exploiting slaves. It was no wonder the Red Guards attacked and severely damaged the tomb of Yandi (the Flame Emperor, who was another mythical founder of the Chinese nation)21 in Hunan province during the Cultural Revolution (Sautman 1997). The PRC’s shift of its national identity in the state-centered, inclusionist direction was also supported by its distinguishing overseas Chinese with foreign citizenship from

21

According to the Chinese myth, Yandi was the chief of a tribe in China. His tribe joined with Huangdi’s to form Huaxia, which was the ancient Han Chinese. Therefore, many Chinese believes the Chinese nation is Yan Huang zisun (the descendants of the Flame Emperor and the Yellow Emperor) (http://www.china10k.com/english/history/1/11/11b/11b04/11b0402.htm).

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overseas Chinese with Chinese citizenship since the late 1950s. As I previously mentioned, the nationalist China government regarded overseas Chinese as Chinese despite its state-centered national identity. The PRC did the same for almost a decade after 1949. There were several reasons: (1) Han ethnic nationalism still remained in the minds of communist officials, (2) overseas Chinese strongly supported a rich and strong Chinese nation-state, and (3) the PRC government attempted to export socialist revolution through overseas Chinese. However, after the late 1950s, the PRC excluded most of overseas Chinese from the official idea of the Chinese nation, particularly as it normalized diplomatic relations with South Asian countries (Fitzgerald 1972). Countries like Indonesia in the 1950s played a key role in this exclusion of overseas Chinese. And diplomatic relations in the mid-1970s with Malaysia, Thailand and the Philippines served to confirm the narrower and more state-centered idea of the Chinese nation: The PRC begin to use the term “Huaqiao” to define citizens of the PRC living abroad, while using the term “Huaren” to designate overseas Chinese with foreign citizenship. Chinese leaders preferred to encourage “Huaqiao” to assimilate to local loyalties by acquiring local citizenship and receiving local education. Once “Huaqiao” became “Huaren,” the PRC abandoned them (Wang 1985: 28-30). Most overseas Chinese lost their ability to speak Chinese and were assimilated to local culture. Especially during the Cultural Revolution (1966-1976), overseas Chinese who had returned after 1949 and relatives of overseas Chinese were accused of being “vanguards of capitalists’ or “reactionaries’ and suffered from discrimination and suppression. Overseas Chinese were disconnected from their relatives in China. The emotional gap between overseas Chinese and the PRC was deepened (Bolt 2000; Suryadinata 1985; Wang 2000). After the reform of 1978,

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government officials and scholars again began to pay attention to overseas Chinese, including ethnic Chinese with foreign citizenship and their capital and expertise. The PRC recently changed its policy toward overseas Chinese to attract investment from them (Fei 1994).22 Conclusively, the PRC institutionalized state-centered, inclusive national identity in order to strengthen the unity of the Chinese nation, to fulfill the communist ideal of harmony among ethnic groups on the basis of shared class interests, and to better relations with Southeast Asian countries before the 1980s.

4.2. The Rise of New Nationalism in the Post-Mao Period (1978~): After the reform of 1978, a new form of nationalism arose in the PRC, emphasizing the biological tie among ethnic groups in China, pan-Chinese national identity, and national sovereignty. The rise of a new nationalism in China should be understood as a response to the weakening of central power, the decline of national solidarity, and actual and/or imagined international threats. The reforms and rapid economic growth weakened the Chinese central state power and national solidarity. First, decentralization transferred power from central government to local governments in China after the reforms. The welfare of local Chinese people directly relied on the local governments rather than the national one. As a result, national solidarity based on local Chinese people’s loyalty to the PRC weakened to some extent (He and Guo 1999; Sautman 1997; Zheng 1999). Second, as the welfare of local Chinese people gradually relied on the local governments and, thus, the national government lost connection with local societies due to decentralization, national solidarity became problematic. Third, the belief in Marxism 22

I will elaborate on the new policy of the PRC toward overseas Chinese in Chapter 5.

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and Maoism declined, the national government lost its most powerful tool to regulate or subordinate local society. In addition, the rapid growth of China threatened many world powers, which could potentially and actually restrain China from modernization. Thus, the PRC began to fear that some world powers might try to interrupt its process of modernization (Zheng 1999: 14-19). In order to solidify national identity among Chinese people, the Chinese government promoted a new nationalism from 1980s, which emphasizing the purported common ancestry of China’s different ethnic groups, pan-Chinese national identity, and the necessity of maintaining the territorial and sovereign unity of China (including Taiwan). For example, the Chinese government compelled the mass media to spread the discourse that various ethnic groups were descendants of a common ancestry. The Chinese government also began to extol historic persons who had been denigrated as traitors by Han-ethnic nationalists. In addition, the Chinese government made the Great Wall as a pan-Chinese national symbol beginning in 1984 (He and Guo 1999; Sautman 1997). In order to construct the self-image that China is a homogeneous organic entity with a common ancestry, the Chinese government sponsored the spread of several myths regarding the origins of the Zhonghua minzu. In particular, the Chinese governmental media exploited the myths of descent from the dragon, from the Yellow Emperor and from Peking Man. Myths of descent from the dragon, Huangdi, and Peking Man were a basis for new nationalism that postulated close biological and cultural ties among various ethnic groups in China. As I mentioned above, Yandi and Huandi (the Flame Emperor and the Yellow Emperor) did not represent the ancestry of the Zhonghua minzu in China before the 1980s. On the contrary, either their historical existence was questioned in 45

works published in the PRC, or they were portrayed unsympathetically by Chinese scholars until the mid-1980s. From a Marxist point of view, history textbooks used to write that the function of the early tribal chief in the era of Huangdi was to protect the interests of the ruling noble class by exploiting slaves and conquering other tribes. However, the Chinese government symbolized Huangdi as the common ancestor of the Zhonghua minzu after the mid-1980s. For example, the Chinese government itself took steps to revive and reinforce the Yellow Emperor cult. The State Administration of Museums and Archaeological Finds declared his putative tomb as the “number-one ancient tomb for protection by the state” (Sautman 1997: 80). In doing so, the PRC government declared that all pan-Chinese were biologically attached to the Chinese state through their descent from Huangdi. The Chinese state in turn protected all pan-Chinese created by that common descent. Also, from the mid-1980s the Chinese government media started to symbolize the dragon as a totemic animal for all Chinese and to couple it with the Chinese racial identity (Sautman 1997). Pan-Chinese nationalism has also been promoted through the popularization of studies of “Peking Man” (Beijingren; sinanthopus pekinensis) and other early hominids after the mid-1980s. In the mid-1980s the official Chinese media began to regard “Peking Man” as archaeological evidence for the antiquity of the Chinese nation and to symbolize him as an ancestor of all ethnic groups in China. 23 On the one hand, Chinese archaeologists and anthropologists supported the pre-historic existence of the Chinese nation dating back hundreds of thousands of years. The Chinese scholars argued that

23

However, Peking Man was not always the symbol of the Chinese nation. Chinese scholars regarded Peking Man as the ancestor not of the Chinese but of mankind as a whole before the mid-1980s (Sautman 1997: 88).

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complete sets of “pithecanthropus’ fossils found in China evidently ranked Zhonghua minzu as one of the world’s oldest nations. Archaeology was used by the Chinese government and its mass media to enhance national solidarity through promulgating “the concepts of the long history, splendid cultural traditions, continuity and integration of the country” (Sautman 1997: 87). On the other, the Chinese government and scholars argued that not only Han Chinese, but also minority ethnic groups such as Tibetans, Koreans, and Mangols, were descendants of Peking Man. The scholars even developed the theory that all East Asians evolved from Peking Man. The emphasis of a common ancestry, blood tie, and a long history of their own race are unique characteristics of racialism, which has been exploited to support an exclusive ethnic nationalism in countries such as Germany, Japan, and Korea. As Clive Christie has written: In general, the ideology of racism has primarily been used, not so much to define the nation, as to identify those who cannot belong to the nation. Hitler’s racial philosophy, for example, was rather vague in defining what an “Aryan” or even a German was; it was lethally precise, however, in identifying those ethnic communities—notably the Jews and the Gypsies—who did not belong, either in Germany or in Europe (Christie 1998: 228). However, the racialist discourse was exploited to support inclusionist, statecentered nationalism in China. The Chinese government elaborated upon who was Chinese rather than who was not. The PRC defined the Chinese nation to include a variety of ethnic groups and to support pan-Chinese identity, using the myth of the dragon and Huangdi and archaeological evidences about Peking Man. As a result, the logical boundary of the Chinese nation dramatically expanded to include all East Asians. In reality, the PRC could not give Chinese citizenship to all East Asians. The PRC did not want to annex all other East Asian countries. The PRC wanted neither to exclude nor to

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discriminate against any Chinese citizens of the Han race. The PRC exploited racialist discourse mainly to lend legitimacy to the Chinese state and to promote patriotism (statecentered nationalism) among all ethnicities in China (Sautman 1997: 91). In the context of Chinese nationalism, racial nationalism was used to promote state-centered national identity. Liu recently pointed out that, “‘nationalism’ in the Chinese context is often synonymous with ‘patriotism’” (Liu 2001: 206). In addition, in order to construct an inclusionist pan-Chinese national identity, China increasingly portrayed Han Chinese and non-Han minorities together building the Great Wall after Deng Xiaoping ordered its restoration in 1984. After promoting the Great Wall as an emblem of China the late 1980s, the PRC held photo exhibitions of it, a television series about it, etc. (Sautman 1997: 90). He and Guo (1999) also demonstrate that China strengthened pan-Chinese national identity after the 1990s based on the study of the Chinese attitude toward Zeng Guofan. Zeng, who was born in 1811 and died in 1872, was simultaneously named a ‘saint” by Pan-Chinese nationalists and a “traitor” by Han-Chinese nationalists because Zeng was loyal to the Qing and crushed the riot of the Han Chinese in order to build a strong and rich Chinese nation-state. Therefore, the Chinese people’s attitude toward Zeng Guofan was linked to their attitude toward Chinese national identity. According to He and Guo, a play, television series, two biographies, and an abundance of articles and studies described Zeng as a ‘saint” rather than a “traitor” between 1981 and 1997. They conclude: Mongols, Manchus, and other ethnic groups are now thought to have made great contributions to the Chinese nation and are no longer treated simply as foreign invaders. Chinese civilization and Chineseness are thus depicted as a melting pot containing a rich ethnic soup. To identify oneself as Chinese, therefore, is not necessarily to identify with the Han or to renounce one’s ethnicity (He and Guo 1999: 162).

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Finally, intellectuals from ethnic minorities who accept state-centered nationalism contested any kind of ethnic nationalism, especially that of Han Chinese. Ethnic nationalism discourse was an extraordinarily sensitive issue in China. For example, Dr. Huang Youfu, a professor in Zhongyang Minzu Daxue (Central University of Ethnic Studies) in Beijing, said in the interview with me in 2001, “Intellectuals from ethnic minorities are very sensitive to Han ethnic nationalism. Thus, many intellectuals from ethnic minorities, including those who accept state nationalism, are very critical of the mythical discourse of the dragon and Huangdi, because minorities have their own traditional myths of their origins.” The PRC was very careful in dealing with complaints from ethnic minorities and the opinions of those minority intellectuals (Zheng 1999: 3545). Once ethnic nationalism made important segments of ethnic minorities feel alienated, the effort to build Chinese state nationalism would go up in smoke, and ultimately the integrity of the state itself might fall into jeopardy (Sautman 1997). Therefore, the PRC would make efforts to connect the mythical discourse of the dragon and Huangdi with pan-Chinese national identity.

Conclusively, the state-centered and inclusionist national identity was strongly supported by a combination of state interests and the traditional idea of the integrity of the Chinese nation in the Chinese territory. The Chinese have a historical experience of dramatically expanding their membership boundary: (1) assimilation: the barbarians were conquered, then absorbed and turned into Chinese by slow assimilation and cultural influence throughout more than 3,000 years (Cohen and Chiu 1974), and (2) coexistence: Han-Chinese and other ethnic groups maintaining different cultures lived together in a

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common political community for hundreds of years (Crossley 1999; Elliott 2001). In addition, the PRC state and its builders institutionalized a state-centered national identity as the Qing and the ROC (and builders of these Chinese states) had also done (Fitzgerald 1996). Therefore, I would claim that the state-centered, inclusionist national identity is dominant among the people and elites in the PRC, although Chinese national identity contains both ethic-centered elements and state-centered elements as every national identity does (Smith 1991).

5. The Effect of State Nationalism on Ethnic Minority Identity: the KoreanChinese case How securely the state-centered, inclusionist national identity is rooted among the Chinese common people is an interesting question. Although the ways in which the statecentered, inclusionist national identity is accepted varies by areas and ethnicities, a study of the Chaoxianzu (ethnic Korean in China; Joseonjok in Korean) case may help us answer the question, at least for one ethnic group.

5.1. History of Korean Migration into Manchuria: The migration of Koreans to Manchuria is not an old phenomenon.24 At the early Joseon dynasty, the Joseon court prohibited its subjects to move to Manchuria, which was the territory of either Ming or Jurchen. The Joseon court used to sentence all convicted Korean transgressors to death. Shortly after the Qing succeeded the Ming in 1644, the

24

The history of Korean engagement with Manchuria was quite old, but Koreans who migrated to Manchuria before Joseon were assimilated either to Chinese, Mongols, or Manchus. Thus, I do not deal with them in this dissertation.

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Qing court allowed only Manchus to enter and live in Manchuria 25 and concluded a treaty with Joseon to prevent Koreans from entering Manchuria in 1677 (Lee 1999: 102121). The Joseon court also eagerly prohibited the Korean people from moving into Manchuria in order to secure taxation and the border. The Joseon court even beheaded convicted Korean violators of the border when the Qing court transferred them to Joseon court (Lee 1999). Thus, only a few Koreans dared to move into Manchuria even when they experienced severe natural disasters and famines in the 1860s. However, the Qing tacitly opened up Manchuria north of the Yalu River and allowed Koreans to live and farm there in 1865. In 1885, the Qing officially lifted the ban and allowed Koreans to move into Manchuria because they needed a buffer against Russian influence and intended to increase tax revenues. In 1894 there were 4,308 Korean households with 20,846 in total Korean population in Yanbian, which was a part of Manchuria near Joseon (Jung 1997; Piao 1990). Subsequently, the Korean population in Manchuria steadily increased and reached a little over 100,000 in 1910. The Koreans lived along the border area (Lee 1999). After Japan annexed Korea in 1910, Korean immigration into Manchuria increased rapidly. Because of the Japanese agricultural “reforms,” most of the farmland came under the control of the Japanese companies sponsored by the Japanese government. As a result, Korean farmers suddenly lost their land. Most of them became proletarians but some of them opted to leave for Manchuria to look for land. Shortly after, Korean patriots and intellectuals moved to Manchuria to fight against Japanese colonialism. The Korean

25

According to the Manchu myth, Manchus originated from the Mountain Changbai, which divided the border between Qing and Joseon. So Qing sanctified the Mountain Changbai and protected that mountain and Manchuria, in which that mountain was located (Lee 1999).

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population in Manchuria thus rapidly increased to 298,900 in 1920 and 600,000 in 1930. Anti-Japanese nationalism became deeply rooted among Koreans in Yanbian, which became one of the centers of anti-Japanese movements by Koreans abroad. In addition, the Japanese government began promoting Korean migration to Manchuria after Manchuguo was established in 1931. 26 2,163,515 Koreans lived in South Manchuria when World War II ended in 1945. One third of them returned to Korea, and around 1.7 million Koreans settled down in China (Lee 1999). So it was estimated that most Korean Chinese had lived fewer than 20 years in China when the PRC was founded in 1949. Ethnic Koreans in Chinese thus differ from other minorities, whose members have lived for hundreds of years in China. Most ethnic Koreans in China immigrated with the modern Korean national identity and for a long time thought that they would return to Korea. There was ethnic tension between Chinese and Koreans in Manchuria. The Japanese strategy of using Korean emigrants in expanding Japanese influence in Manchuria, 27 Chinese reaction to the attempt, and hostile attitudes of the warlord government toward ethnic Koreans deepened the tension between the two peoples. As a result, a clash between Chinese and Koreans over a canal construction work occurred in Wanbaoshan in 1931 (Bak 1981b; Lee 2001a).28 However, ethnic Koreans’ anti-Japanese sentiment was so strong that conflicts between Chinese and Koreans did not become more severe after the Wanbaoshan Incident. To the contrary, ethnic Koreans in a Korean

26

Manchuguo was established as a puppet state (1932) after the Japanese invaded Manchuria in 1931 and was returned to Chinese sovereignty in 1945. It was located in Manchuria and eastern Inner Mongolia. 27 Although most Koreans in Manchuria were anti-Japanese, the Japanese government executed its jurisdiction over those Koreans, concluding a treaty with the Chinese government. Thus, most Korean farmers were controlled by the Japanese government. 28 This ethnic clash also resulted Korean mobs’ attach against Chinese in Korea in the same year. I am going to explain this in the next chapter.

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armed force unit belonging to the Chinese Red Army fought against the Japanese army. Ethnic Korean in China participated in achieving the Revolution, building the PRC, and developing the Chinese economy. According to Korean-Chinese Professor Jung, the ratio of the Korean fallen soldiers to the whole Korean population in China was the highest among all 56 ethnic groups during the war against Japan and the Revolution. By participating in the war, they won a huge credit from the Chinese government and people (Jung 1997).

5.2. Identity of Chaoxianzu (or Joseonjok in Korean): After the PRC was established in 1949, the status of Chaoxianzu (ethnic Koreans in China) was notably enhanced. The PRC government appreciated the role of ethnic Koreans during the war and the Revolution. The PRC government thus officially recognized ethnic Koreans as a minority and built a university for their ethnic education in 1949. The PRC government gave land to the Korean peasants. Through education and economic incentives, the PRC changed Korean peasants into Chinese citizens. Therefore, ethnic Koreans in China today proudly regard themselves as Chinese although they maintain the Korean language, culture, and ethnic identity. Various studies both by Chinese and Korean scholars confirm that the ethnic Koreans have a strong loyalty and belongingness to China (Han and Kwon 1993; Jung 1997). Han and Kwon write: When Joseonjok (Korean-Chinese in Korean) refer to “my country,” it unexceptionally means China today. They are proud of themselves as Chinese nationals. They regard themselves as the frontiers, guards, and constructors of the Chinese state… This kind of Korean-Chinese identity as the Chinese nationals can be easily confirmed in the conversations with tourists from Korea. The identity that they belong to Chinese is a new consciousness, which has developed since the foundation of the PRC in 1949. Before 1949, they regarded themselves neither as Japanese nor as Chinese but as Koreans… An old man said with tears in his eyes, “I

53

cannot thank the PRC enough. The PRC helped miserable people like me live for pleasure.” We felt his loyalty toward the PRC, which most of Korean-Chinese old men share (Han and Kwon 1993: 93-94). This demonstrates that the PRC was quite successful in rooting the official statecentered, inclusionist national identity among the Korean minority. In addition, the Chaoxianzus’ active participation in Chinese history and identity as Chinese led Han Chinese to embrace these Koreans as fellow citizens. According to survey research conducted by Sina.com and Guangban Xueyuan [Guangban College], 92 percent out of 7,000 Chinese regarded Chaoxianzus as Chinese (Yang 2000). In conclusion, I suggest that the state-centered, inclusionist national identity also became successfully rooted among Han Chinese and members of the Korean minority in China.

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CHAPTER FOUR IV. The Development of Ethnic Nationalism in Korea During the Joseon (or Chosun) period Korea developed a centralized state and maintained a notably homogeneous culture with a relatively small territory. In the late 1800s, under the threat of Japanese and Western powers, Korea began to build a modern nation-state. In 1910 Korea finally fell to colonization by Japanese imperialism. The Koreans developed their national identity without sovereignty under Japanese colonialism until 1945. In 1945 Korea was divided into two separate political units, derailing efforts to build a Korean nation-state. Korea’s pre-modern situations and the repeated failure to create a Korean nation-state strongly conditioned a Korean ethnic and exclusionist national identity. First of all, Korea was also much smaller and ethnically far less diverse than China until the Joseon period. At the same time, Korea was much more “centralized” than other East Asian counties like Japan, which was ruled by “feudal” lords for a long time. It was easy for early modern Korean nationalists to produce a viable, homogeneous, ethnic national identity. Second, Japanese colonization made it urgent for Korean nationalists to distinguish the Korean nation from the Japanese nation and to demonstrate its capacity to confront the foreign challenge effectively. Therefore, Korean nationalists eagerly indoctrinated the Korean people with the belief that Koreans belonged to a danil minjok [nation of one ethnicity] based on the myth of common ancestry. As a result, the Korean national identity came to be “racialized” and “ethnic-centered.” Lastly, the reality of national division reinforced an ethnic-centered national identity among Koreans, 29

29

Although I focus on South Koreans here, North Koreans also have a strong ethnic national identity

55

producing a strong pressure for reunification between North and South Korea (Shin, Freda, and Yi 1999). The ethnic and racial national identity reduced the psychological distance among the Koreans, accentuating the divide between the Koreans and the aliens.

1. The Historical and Demographic Background of Ethnic Nationalism and the Exclusionist National Identity in Korea Strikingly, Korea maintained a continuously unified country from the time of the triumph of the Silla state (B.C. 57-936) in the seventh century A.D. to the artificial political division of the peninsula in 1945. Only three Korean dynasties ruled between 668 and 1910, and the last, the Joseon (or Chosun) dynasty (1392-1910), alone lasted over 500 years. During the three dynasties there was no major expansion of the territory or extension of its ethnic membership. The central bureaucratic state and ruling elite maintained and articulated the differences/boundaries with neighboring states (Manchuria, Japan, and China). Based on ethnic homogeneity, some traditional elites produced historiography that strengthened their sense of identity as a distinct race and gave force to the concept of their descent from a common ancestor (Cumings 1997; Em 1999). During the Joseon dynasty, the unity of the country was more advanced and stabilized than before. From the perspective of territory, the northern border between Korea and China formed by the Yalu and the Tumen rivers was determined, which is still recognized by the world today. The border was set much earlier than comparable boundaries in Europe (Cumings 1997). China, Korea, and Japan were virtually isolated from each other because crossing borders was forbidden except for the formal

(Cumings 1997; Shin, Freda, and Yi 1999).

56

government delegations in the tribute diplomacy.30 In addition, the government forbade trade except in the government controlled seasonal markets that were held in border areas one to three times per year (Lee 1999). This isolation lasted until the 19th century, when Western powers came to East Asia. Furthermore, the Joseon dynasty adopted neoConfucianism and maintained a common culture, education system, and centralized bureaucracy for over 500 years. The Joseon state actively promoted the material welfare of the population, especially of the poor and peasants. For example, the Joseon state designed the system of grain loans to provide grain to the needy peasants during the spring hunger season, which was to be repaid from the harvest in the fall. These institutions and practices linked the Korean people to the Joseon state. Although the people’s collective identity in Joseon was focused on the ruling dynasty rather than on the abstract idea of Korea as a nation, the country’s essential homogeneity and historically based sense of cultural identity helped pave the way for modern ethnic Korean nationalism in the late nineteenth and twentieth centuries (Eckert and Yi 1990: 406-408; ; Lee 1999). In the Joseon period, the Korean intellectuals defined the self-identity of Korea mainly in relation to China and Japan. They regarded Japan as a barbarian country and regarded China and Korea as two civilized countries where Confucian civilization had developed. However, both Korean intellectuals and common people realized that Korea had maintained a different culture, political life, and territory from those of China. They paid no attention to Western countries until Korea regularized diplomatic relations with

30

The tribute diplomacy was known as the Chinese concept of foreign relations. In this diplomacy, only foreign courts that expressed their fealty to China as the most powerful state in the region were allowed to have peaceful diplomatic relations with China. The Chinese imperial court dealt with those tributary foreign courts in all aspects of foreign relations including trade through regular tribute embassies exchange

57

them. Korea concluded the first modern diplomatic treaty with Japan in 1876 and normalized diplomatic relations with the US, Britain, and Germany in 1882. As a result, Korea came into the international order that was based on nation-states. The Korean elite began to develop survival strategies for Korea in the world, where nation-states competed with one another on the principle of the survival of the fittest. The elite made efforts to transform the traditional Korean ethnic identity into the Korean national identity in the late Joseon dynasty.

2. Ethnic Nationalism: late Joseon (1880—1910) Until the turn of the 20th century, there was no term meaning the “nation” in Korean. In the face of the threat from Western and Japanese imperialism, a new generation of Korean political activists and intellectuals tried to redefine the Korean people in terms of sovereign equal citizens and introduced the concept of a “nation” in the late Joseon dynasty. To represent this concept, they adopted both “gungmin” (read guomin in Chinese) in the 1880s and “minjok” in the late 1890s from Chinese or Japanese. As in Chinese or Japanese, gungmin (literally defined as citizens of a state) meant statecentered nation, while minjok (literally defined as a nation of one clan) meant ethniccentered nation. Korean elites emphasized the importance of the Korean nation as a political community (gungmin) in order to transform the Korean peasants into citizens who had rights and obligations and to fortify the Korean nation-state. This is why the term gungmin was introduced earlier than minjok. However, as Japan and Western powers threatened the independence and sovereignty of the Korean state in the early

(Weigelin-Schwiedrzik and Levine 2002; Wills 2002).

58

1900s, Korean elites invoked ethnic nationalism and widely used the term minjok, which emphasized the ethnic-centered Korean nation. The ethnic homogeneity of Korea was also a condition that strongly favored the development of ethnic nationalism. The first nationalist responsible for using minjok and disseminating both the ethniccentered and republican understanding of the nation was Sin Chaeho (1880-1936), who was famous as a nationalist historian, journalist, and activist from the late Joseon (Bak 1997; Em 1999; Han 1994). He realized that the Korean elites should transform the traditional subjects of the Yi dynasty into a modern nation so that they could build a strong Korean nation-state. Sin thus, on the one hand, endeavored to transform the traditional Korean ethnic identity into a modern national identity from the late 1890s. He reinterpreted the myth of Dan-gun (or Tan-gun) 31 as the history of the origin of the Korean nation and fortified the self-image that the Korean people had a common ancestor, history, and culture. In so doing, Sin defined the community that shared blood, history, and culture as minjok (Sin 1979). 32 But Sin also endeavored to transform an idea of patriotism based on loyalty to the king to a nationalism based on popular sovereignty (Em 1999). He defined a political community of responsible and equal citizens as gungmin. He wrote that Korean citizens had to adore equality, freedom, justice, courage, and commonwealth in Isip segi Sin-gungmin [New Citizens in the 20th Century] published shortly before the Japanese annexation 1910 (Sin 1979: 135-153). After 1907, Korean newspapers such as Dongnibshinmoon [Independence News] and Daehanmaeilshinbo [Korean Daily] widely used the term minjok, which was

31

According to the myth of Dan-gun, Dan-gun was the founder of the Korean nation, who built GoJoseon (Old Joseon) in BC 2,333. For the myth of Dan-gun, see Cumings (1997: 24). 32 Before Sin, the myth of Dan-gun was popular among Koreans. Most Korean history textbooks written in the 1900s stated this myth. However, Sin reinterpreted this as a history using more scientific methods (Em

59

distinguished from gungmin (Korean citizens), inmin (Korean people), daehanin (Koreans), and Joseonin (Koreans). The Korean newspapers and intellectuals added the connotation of a common ancestry, language, and folklore to the term minjok as the Korean state became insecure in confronting the threat of Japanese colonialism (Bak 1998).

3. The Development of Ethnic Nationalism under Colonialism and AntiColonialism: 1910~1945 The state-centered national identity lost its basis among the Korean people simply because Korea lacked an autonomous state with which they could identify after the Japanese annexation of Korea in 1910. The ethnic-centered nation became a mythical entity that filled the gap left by the absence of the Korean state under Japanese colonialism. There was no other means to maintain and strengthen the Korean national identity but to assert its racial uniqueness and the significance of its culture. Gungmin (the state-centered nation), which meant only the subjects of the Japanese Empire, was not used, while minjok became widely used by Korean nationalists (Bak 1998). Additionally, Japan had a strong ethnic nationalism and her colonial policy was very racist. Japan justified its annexation of Korea by arguing that the Korean nation was racially and culturally inferior to the Japanese. Korean nationalists vociferously asserted the distinctiveness of the Korean nation. They extolled the long and glorious Korean history. They also emphasized the Korean nation’s ability to effectively defeat foreign challenges. Furthermore, they racialized the

1999; Han 1994).

60

Korean nation by exploiting the myth of a common ancestry. A race was regarded as a more or less distinct human group with genetically transmitted physical characteristics, while ethnicity was generally regarded as a cultural characteristic based on a common language, folklore, and history. Korean nationalists conflated race with ethnicity. By so doing, Korean nationalists fixed the idea of the immutable and everlasting Korean nation. The racial self-image of the Korean nation invoked the sense that we, the Koreans, were members of an extended family. As a result, the ethnic character of the Korean national identity was fortified. The meaning of minjok approached the German Volk or Volkschaft in the Korean context.

In the 1910s Bak Eunsik (1859-1925) argued that the Korean nation would remain immortal even though its political autonomy was lost. He thought that the spirit embodied in the Korean nation in the elements of the Korean language, religion, literature, folklore and history would revive the Korean nation-state. He wrote in Hanguk tongsa [a complete history of Korea], “If the Korean national spirit survives, the Korean nationstate will resurrect sooner or later” (Gim 1994: 101). Bak published the biographies of the Korean national heroes and glorified Korean history against the Japanese denigration of Korean history. Additionally, he, like Sin Chaeho, elevated Dan-gun to the most important symbol of the immortal Korean nation, tracing its origin back to GoJoseon (BC 2333). Bak also contributed toward developing the ethnic-centered concept of the Korean nation. After the Russian Revolution in 1917 and the failure of the peaceful independent mass movement of Koreans in 1919, Marx-Leninism and the social sciences spread among the Korean intellectuals in the 1920s (Cumings 1997: 154-162). Consequently, 61

Marxism and other social theories affected nationalist historians, and they developed a more scientifically defined idea of the Korean nation. In the 1920s, An Hwak (18861946) criticized some Korean nationalists’ adherence to a racial and ahistorical idea of the Korean nation. He argued that the Korean nation developed in the context of Korean history (Han 1994). An Jaehong (1891-1965) also criticized the ahistorical idea of the Korean nation in the 1930s. He stated, “Minjok is neither an uncomfortable idol nor a stubborn prejudice. A common culture, tradition, habit, politico-economic interests, and natural surroundings produce a minjok” (Han 1994). However, both An Hwak and An Jaehong argued that the Korean nation had existed for 5,000 years. They also emphasized that the Korean nation was culturally and racially homogeneous. Marxist historians like Baek Namun (1894-1979), Yi Cheongwon (?-1956) and Jeon Seokdam (1916-?) criticized nationalists for their ahistorical and chauvinistic definition of the Korean nation. For example, they did not agree that Dan-gun was the founder of the Korean nation. Instead, they shed light on the Korean nation as a political and economic community. However, they were deeply affected by nationalism under Japanese imperialism. They, like the nationalists, emphasized the long history and ethnic homogeneity of the Korean nation (Jo 1998). For example, Baek argued that Dan-gun was only a mystified monarch who ruled the Korean people after the collapse of the primitive commune. However, he argued that the Korean nation formed with the founding of GoJoseon, an ancient Korean state based on slavery, while Westernnations originated from the feudal societies. Thus, he called Korea “a nation of the precocity” (Cha 1999: 123). In the long run, the Marxist historians participated in promulgating

62

ethnic-centered national identity among Koreans (Bang 1994; Yeom 1994). 33 While Korean intellectuals under Japanese colonialism pursued diverse political ideologies that ranged from liberalism to Marxism, and from anarchism to agrarianism, few ever objected to the ethnic-centered Korean identity (Shin, Freda, and Yi 1999). The Japanese colonial government made efforts to control Korean education and to eliminate nationalism among Koreans. However, ethnic-centered national identity spread among Koreans in various ways. First of all, Japanese discrimination against ethnic Koreans promoted ethnic-centered Korean national identity. Second, private middle schools run by Koreans spread Korean ethnic nationalism. Despite the oppression of the Japanese colonial government, thousands of private schools survived through the Japanese colonialism period. Although the Japanese government did not officially recognize most of these schools, around 200,000 Korean students enrolled in theses schools every year until the end of Japanese colonialism. These private schools employed Korean teachers and published their own textbooks in order to spread Korean nationalism and maintain Korean national identity. Therefore, middle school students occasionally played a leading role in nationwide independence movements, such as the March 1 Movement in 1919, the June 10 Movement in 1926, and the Gwangju Student Movement in 1929 (Cha 1999). This shows that those private schools were the center of the “infrapolitics” 34 of Korean nationalist movements under Japanese colonialism. Lastly, after the March 1 Movement, the Japanese colonial government allowed Koreans to

The origin of the ethnic-centered nationalism of communist North Korea (the Democratic People’s Republic of Korea) can be traced back to Japanese colonialism. North Korea regards Tangun as the founder of the Korean nation and uses Chosun as its name today (Cumings 1997). 33

34

James C. Scott (1990) introduced this term meaning cultural and political resistance, but which is not openly declared contestations. 63

publish 2 newspapers in 1920: Dongailbo [East Asian Daily] and Joseonilbo [Korea Daily]. These newspapers spread Korean nationalism until they were discontinued by the Japanese colonial government in 1940 (Hangukjeongsinmunhwayeongguwon 2002). As a result, the ethnic-centered Korean national identity spread among Koreans under Japanese colonialism.

4. The Development of Ethnic Nationalism under Division: 1945~ After the liberation of the Korean Peninsular in 1945 and the founding of the Republic of Korea, it was possible that a state-centered national identity would spread among the Korean people. However, an ethnic-centered national identity intensified among the Korean people. One of the most important reasons for this was the division of North and South Korea. On the one hand, because of the strong ethnic-centered national identity that developed under Japanese colonialism, the South Korean government and elites regarded the reunification of Korea as the completion of the building of the nationstate. On the other hand, the government and state elites felt the goal of unification of the nation-state would confirm the legitimacy of the ROK. They spread the discourse that South Korea should liberate the brethren of North Korea from the communists. Therefore, they emphasized ethnic homogeneity and the longevity of the Korean nation and systematically disseminated an ethnic-centered national identity.35 Up to the present, the ruling elites often use this ethnic-centered national identity to legitimize their rule and to mobilize the people. The ethnic-centered nationalism of the ROK appeared in its Constitution of 12 July

35

The North Korean government and elites did the same for the same reason.

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1948, which started with “We, the people of Korea, possessing a glorious tradition and history from time immemorial” (Choe, Lee, and De Bary 1997). This Constitution also emphasized that the Korean people were the descendants of Dan-gun. Furthermore, the South Korean government officially declared the founding day of GoJoseon to be a national holiday, referred to as Gaecheonjeol [Creation Day], when the Republic of Korea was established in August 1948. This national holiday also led to a widespread propagation of the ethnic-centered image of the Korean nation by referring to five thousand years of Korean history and culture (Pai and Tangherlini 1998). Son Jintae (1900-?) was a historian and served as a vice minister of education just after the founding of the ROK in 1948. Son’s idea of the goal of Korean history education deeply affected textbooks for generations of South Korean students, even though he was abducted by the North Korean army during the Korean War. In the journal Joseon Gyoyuk [Korean Education], 36 he published an article titled “Guksagyoyukui Gibonjeok Jemunje [Several fundamental questions about the Korean history education] in 1947. In the article, Son wrote: It is true that the [ethnic] homogeneity of a nation does not mean its superiority. However, we [the Korean nation] as a clan have maintained a blood lineage, lived in the same territory, and developed the same culture—in language, costumes, habits, and so on—since we had a written history. We also have survived struggling against innumerous invasions of other nations. These facts will strengthen the solidarity and fraternity of the Korean nation in the future... The history of the Korean nation started when our ancestry clans moved to the Korean peninsula and Manchuria (Son 1947[1997]: 117-120). Son clearly stated the ethnic-centered character of the Korean nation. He also insisted that the ethnic-centered nationalism should help the Korean nation to build a strong nationstate.

36

This was a monthly journal published from April 1947 to October 1949. Many chief government officials

65

After the Korean War (1950-53), the ethnic-centered image of the Korean nation was supported by collective historical imaginations of today’s best-known “nationalist historians’ such as Gim Cheoljoon, Yi Byeongdo, Cheon Gwanu, Yi Gibaek, Gim Jeongbae, and Yi Manyeol. Because of their work, the myth of Dan-gun appeared at the beginning of all Korean textbooks in spite of the notable absence of sufficient historical evidence supporting the myth. Not only nationalist historians but also political leaders were heavily responsible for the widespread promulgation of an ethnic-centered national identity of Koreans. For example, President Park Chung-hee (or Bak Jeonghi: 1917-1979), in office during 19631979, exploited nationalist discourses in order to legitimize his regime and mobilize the South Korean people for modernizing South Korean society and building a strong and rich South Korean nation-state. The speeches and writings of President Park were full of nationalist rhetoric. “Minjok jungheung [national resurrection],” “minjok dangyeol [national unity],” “minjok gaehyeok [national regeneration],” and “minjok tongil [reunification of the nation]” were only a few among the nationalist expressions he used (Park 1976; Park 1971). Using the term minjok he appealed to the ethnic-centered nationalism of the Korean citizens and strengthened the identity among them. Park gave an address in commemoration of the 27th anniversary of National Liberation on August 15, 1972: Although we are now separated into the south and north, we are one entity with a common destiny, bound by one language, and by one history and by the same racial origin. Ideology changes but the nation stays and lasts. We must quickly recover our identity as the inseparable Han race (Park 1976: 54). Obligatory, standardized, and public mass education socializes the members as

contributed to the journal.

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“nationals” and “citizens” with a “national identity” (Anderson 1983). Park’s regime utilized obligatory, public mass educational systems more effectively than the previous regimes did so that the public would internalize his nationalist rhetoric. Park declared in December 1968 Gungmin gyoyuk heonjang [the Charter of National Education] beginning with “We are born with the historic mission of restoring our nation and making it flourish.” His regime inserted the charter into every school textbook to guide national education. Furthermore, President Park created Gukgi e daehan maengse [Our Oath to the National Flag]: “In front of the proud Taegeukgi [national flag], I firmly swear that I will devote my body and soul for the eternal glory of the fatherland and minjok [nation].” Park’s regime obliged all students to memorize the charter and the oath and to attend ceremonies in which they repeated the oath in front of the national flag before and after school everyday (Shin 1998). This kind of internalizing nationalism was so effective that the Koreans who were educated in the 1970s still remember the charter and the oath almost thirty years later. 37 As I mentioned above, Park’s understanding of Korean nationhood was strongly ethnic-centered. Therefore, an ethnic-centered national identity was widely popularized. Besides the charter and the oath, regular curricula such as Sahoe [Social Study], Guksa [Korean History], and Gungmin Yulli [Citizen Ethics] were used to socialize the students as “nationals” and “citizens,” and thus to promote national identity. According to the Ministry of Education in the 1970s, elementary school students had to take one 2hour ethics class and one 2-to-4-hour social studies (including Korean history) class per week for 6 years. During the same period, middle school students also had to take one 2-

37

I am one of them. I can also remember the sense of the nationalist mission I had in front of the national flag in my elementary school years.

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hour ethics class, one 3-hour social studies class, and one 2-hour Korean history class per week for 3 years (Korea 1978). The emphasis on the homogeneity of the Korean nation, language, and culture based on the myth of Dan-gun fortified an ethnic-centered image of the Korean nation, leaving little room for the alternative state-centered image. As a result, two characteristics were generally accepted as integral to the self-image of South Koreans: (1) the ethnic homogeneity of the Korean nation with a common ancestor, language, and culture since GoJoseon’s prehistoric origins five thousand years ago; and (2) the shared historical destiny and cultural heritage of all Koreans since the formation of the Korean community by the founding ancestor, Dan-gun (Pai and Tangherlini 1998: 3-4). In other words, it is generally accepted that an ethnic-centered, exclusive national identity was dominant among Koreans. Therefore, Gi-wook Shin (1998) states that most Koreans believe that the Korean nation has existed since time immemorial. Shin claims that even Korean dissident intellectuals hardly disagree over the ethnic elements of the nation up to the present. They frequently exploit the same ethniccentered nationalism to mobilize the Korean people against the government and criticize the government as America’s puppet for not serving the minjok’s own interests. For example, the Busan National University Students’ Declaration, whose movement was a catalyst of the collapse of Park’s regime in 1979, was full of nationalist rhetoric. The declaration stated: There was no other regime in our nation’s 5,000-year history that more cruelly oppressed and exploited the Korean people than Park’s regime did, was there?… Park’s regime maintained the colonial economic structure and supported comprador capitalists. Park’s regime thus caused the economic dependence of the Korean nation on the Japanese and American economies (Anonymous 1979[1995]: 460461; , emphasis added). Shin’s point is that denying the ethnic-centered notion of one Korean nation to which all

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Koreans belonged as members of the same race would be political suicide in South Korea. Gim Dongseong’s empirical study in 1992 also supported the presumption of the ethnic-centered, exclusive character of the Korean national identity. In 1992, 86.5% of Koreans in Seoul, the capital of the ROK, agreed that regardless of their social status, wealth, religion, gender, and hometown, Korean nationals are members of a family of the same blood. On the contrary, only 37.9% of Koreans in Seoul agreed that foreigners who can contribute to the development of the Korean nation should be accepted as Koreans (D. K. Gim, Tongseong] 1995). Taking into consideration the fact that the Koreans in Seoul were somewhat more liberal and progressive than Koreans in other areas, we could expect that the ethnic-centered, exclusive character of the national identity among all Koreans was even stronger. Even after a more liberal Korean government came to power in the 1990s, the ethnic-centered national identity was still emphasized through mass education systems. A textbook of Sahoe 6-1 [Social Studies 6-1] for 6th grade elementary students, published by the Ministry of Education in 1999, contained in its first chapter titled “Our nation with a long history”: Hwanung, the son of the god in heaven, and Ungnyeo (Bear woman), who a bear was transformed into, got married and gave birth to Dan-gun Wanggeom. Dan-gun Wanggeom founded GoJoseon (Old Chosun), the first Korean state. GoJoseon settled down in Manchuria and then expanded to the Korea Peninsular. Dan-gun Wanggeom ruled the country under the principle of “devotion to the welfare of mankind.” It is said that Dan-goon Wang-gum held sacrificial rituals for heaven. Cheomseongdan, which was an altar for the rituals, still exists in Ganghwa Island (Ministry of Education 1999: 8). Teaching the myth of Dan-gun at schools makes Korean students imagine the ethniccentered

“community,”

as

Benedict

Anderson

69

(1983)

explains.

A

textbook

Godeunghakgyo Guksa (sang) [High School Korean History (1/2)] for high school students published by the Ministry of Education in 1998, also emphasized the long history of the Korean nation and wrote in the chapter titled “The origin of the Korean nation”: In East Asia many nations made their cultures flourish during prehistoric times. Among them, the Korean nation maintained a unique culture… Our nation (minjok) formed a national community a long time ago, and developed an original culture based on an agricultural economy (Ministry of Education 1998: 16). Up to the present, the ROK maintained and even enhanced an ethnic notion of the Korean nation, found in its racial homogeneity, long history, and immutability.

5. The Effect of Ethnic Nationalism on Ethnic Minority Identity: Chinese case How securely the ethnic-centered, exclusionist national identity is rooted among the Korean common people is an interesting question. A study of the Hwagyo (Huaqiao in Chinese) case may help us answer the question. This was the largest minority group with the longest immigration history until the early 1990s. Indeed, the Koreans’ ethniccentered, exclusionist national identity is affirmed by their attitude toward Hanhwa, who have been living in Korea for almost a hundred years. Although it is impossible to distinguish Chinese from the Koreans racially,38 Korean society with its ethnic-centered national identity discriminated against the Hwagyo until the year 2000. According to the official definition of the Chinese government, Hwagyo (Huaqiao in Chinese) are overseas Chinese people with Chinese citizenship, while Huaren is an overseas Chinese with the

38

Most Hwagyo in Korea came from Northern China (Bak 1981a). Northern Chinese look very similar to Koreans. Furthermore, today most Hwagyo are more than a quarter Koreans, whose grandmothers or (and) mothers are Koreans.

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host country’s citizenship (Wang 1985: 28-30; ; Wu 1991). So Huaqiao is often translated into a Chinese sojourner, and Huaren is translated into ethnic Chinese. However, there is no word for Huaren but only Huaqiao in Korean. This is because there is no Huaren in South Korea because of the Korean ethnic-centered, exclusivist national identity. Only less than 10 Hwagyo were naturalized every year until 1985 (Ministry of Justice 2002), while most Hanhwa either remained as permanent aliens or left South Korea (Bak 1981a; Yang 2000; Yi and Bak 1981).

5.1. History of Chinese Migration into Korea: The presence of a Chinese minority in Korea began in 1882, when the Joseon and the Qing courts signed a trade agreement that enabled Chinese merchants to own and lease land and houses in treaty port areas. According to the Japanese GovernmentGeneral of Korea, the number of Chinese immigrants gradually increased to 11,818 in 1910 and to 23,989 in 1920 because of political and social turmoil in China such as the Boxer Rebellion (1898-1901), the Chinese Revolution (1911), the ensuing warlordism, and the great flood in Northern China in 1920-21. Industrialization in Korea also spurred Chinese migration into Korea in the 1920s and 1930s. The Chinese population reached 69,109 in 1930, and reached 82,661 by 1942. Most Chinese in Korea were engaged in commerce, industry, and agriculture over the years from 1910 to 1949 (Bak 1981a). The relationship between the Chinese and Koreans was not bad, although uneasiness between Chinese and Koreans grew as Chinese migrants and coolies competed with Korean workers for jobs. Just after the Wanbaoshan Incident (1931) in

71

Manchuria,39 the Japanese-controlled press distorted the nature and scale of the incident and provoked anti-Chinese sentiment in Korea. Although angry Korean mobs attacked Chinese residents in Korea and caused 700 casualties, Chinese and Korean leaders settled the riot within a short time. An attack on Chinese by Korean mobs never happened again. Thus, the Chinese population in Korea increased in the long run although the Manchurian Incident (1931) and the Sino-Japanese War (1937) intermittently discouraged further Chinese migration into Korea and even pushed some Chinese settlers to return home. Cooperation between Chinese and Koreans was possible because the Chinese and Koreans were both oppressed by Japanese imperialism and regarded Japan as their common enemy. However, an ethnic-centered Korean national identity could be observed in various ways. Despite a generally positive relationship between Chinese and Koreans, the ethnic national identity of Koreans prevented Korean women from marrying Chinese. Few Huagyo in colonial Korea married Korean women, while Chinese men in South Asia often married with women of the host country at the early stage of their immigration (Bak 1981b: 30).40 When Korea was liberated and divided in 1945, the Chinese population in South Korea was only 12,648, since over 80% of the Chinese lived in the more industrialized northern part of the Korean Peninsula (Yang 2000). The population of the Chinese in South Korea increased to about 17,687 shortly after the Korean War (1950-53) because some Chinese moved from North Korea before and during the Korean War (Yi and Bak 1981).41 The division of Korea, the founding of the PRC, and the Korean War prevented

39

I explained this incident in Chapter 3 of this dissertation. The ratio of Chinese women to the total Chinese population in colonial Korea varied from only 5.8% in 1911 to 25% in 1939. Therefore, marriage between Korean men and Chinese women was even rarer. 41 It is estimated that fewer than 10,000 Chinese reside in North Korea currently because many Chinese 40

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new Chinese immigration into South Korea. The Chinese population in South Korea reached 32,436 in 1976 due only to natural increase. After that, the Chinese in South Korea began to migrate to Taiwan, the USA, Australia, Canada, and other countries. Consequently, the Chinese population steadily diminished to under 20,000 in the 1990s. After the Korean War, the Chinese in South Korea gained the ROC citizenship because the ROK did not have diplomatic relations with the PRC. The South Korean government that was based on ethnic nationalism adopted an exclusionist rather than assimilationist policy toward Korean-Huagyo (or Hanhwa). The Chinese had to get permission to reside in South Korea and had to renew this permission every two years. The government also enacted laws and policies unfavorable to Hanhwa, in order to protect Koreans. The Aliens’ Land Act of 1961, which targeted Hanhwa, prohibited foreign ownership of land without permission. Chinese farmers had to give up their farms and merchants had to sell their commercial premises. Chinese merchants who held their shops under the names of Koreans often lost their ownership because the Koreans disposed of the property. As a result, Chinese commercial areas dramatically diminished and South Korea became the only industrialized country without a Chinatown. In addition, Hanhwa who ran businesses suffered from discriminatory taxation and lost most of their past glory.42 Chinese residents were also excluded from certain job categories. Of course they could neither be civil servants or directors of public agencies. To make matters worse, they could not take the bar examination or become lawyers, nor they could take the qualification examination to become certified public accountants. A Chinese cook’s sarcastic comment, “Our lives depend on strips of jajangmyeon (Chinese noodle

returned to Mainland China or moved to South Korea (Lee 2001a). 42 Hanhwa made great assets by trade and commerce until 1960 (Bak 1981b).

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popular among Koreans)” (Yang 1999: 32) dramatically described the situation of Hanhwa. In reality, more than half of the Chinese families of the pupils in the Seoul Overseas Chinese High School were engaged in the food service industry in 1998 (Choi 2000: 7). Consequently, more than 30% of the Hanhwa left South Korea in the last few decades. Exclusionist ethnic-nationalism and the government policy thus were responsible for the shrinking of the Hanhwa. In addition, it was not until the 1990s that Korean society, including NGOs, broke its long silence about the Korean government’s discriminatory policy toward Hanhwa. This also shows how strongly the ethnic-centered national identity was rooted among Korean people.

5.2. Identity of Huaqiao in Korea: The exclusionist Korean government policy based on ethnic nationalism made Hanhwa hold onto their Chinese identity. There were three main reasons why Hanhwa sustained a Chinese identity: (1) The Korean citizenship law precluded Hanhwa from acquiring Korean citizenship. Even fourth generation Hanhwa had to apply to the Minister of Justice for permission for naturalization just like any other foreigner if they wanted to be Korean citizens; (2) As I mentioned previously, Hanhwa faced many obstacles in occupational fields and in business. In order to escape from low income occupations, Hanhwa youth left for Taiwanese universities. Their parents encouraged them to do so; and (3) the Korean government did not attempt to assimilate Hanhwa. Most of all, the Korean government neither supported nor restricted Hwagyo Schools in Korea. Hanhwa enjoyed complete autonomy to control their own education without interference from the Korean government. As a result, most Hanhwa studied for 12 years 74

in Hwagyo schools after 1950, where the curriculum replicated the ROC education. Furthermore, until the 1990s, the majority of the top students who graduated from Hwagyo high schools entered Taiwanese universities.43 As a consequence, up to the 1990s Hanhwa strongly identified themselves as Chinese rather than Koreans. According to Sheena Choi’s 1998 survey research, only four percent of the Hanhwa students attending the Seoul Overseas Chinese High School in Seoul, Korea identified themselves as Koreans, while 96 percent identified themselves as Hanhwa or as Chinese (Choi 2000). According to survey research recently conducted among Koreans by the Seoul Center for Chinese Studies and Dong-a Ilbo [East Asia Daily News], 62 percent of 5,000 Koreans regarded Hanhwa as Chinese, while 67 percent of them regarded Joseonjok (ethnic Koreans with Chinese citizenship) as Koreans (Yang 2000). Korean ethnic-centered, exclusivist nationalism left a clear imprint both on Koreans and on their largest minority group with the longest immigration history, the Hanhwa.

43

In Chapter 6 of this dissertation, I am going to analyze the exclusionist policy of the Korean government in detail.

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CHAPTER FIVE V. The Legal Definition of Citizenship (or Subjectship) in China: My

research

on

Chinese

subjectship/citizenship

demonstrates

that

its

subjectship/citizenship has not been a politics of identity but a politics of interests. First, from the 1840s to 1945, China’s concerns over its sovereignty in relation to extraterritorial areas in China and neighboring Westerncolonies determined the Qing and the ROC’s subjectship/citizenship policy. The Qing and the ROC both adopted the principle of jus sanguinis, despite China’s state-centered, inclusive national identity. Such a combination deviated from the normal procedures elsewhere. Previous studies (Brubaker 1992; Castles and Davidson 2000; Cheng forthcoming; Faist 2000) generalize the claim that jus sanguinis is linked to an ethnic-centered, exclusionist national identity (as in the cases of Germany and Japan), while jus soli and jus domicili generally relate to a state-centered, inclusive national identity (as in the cases of France, the U.S.A., and the UK).44 In particular, the Qing adopted jus domicili and jus soli only minimally. At the same time, both the Qing and the ROC recognized the dual citizenship of overseas Chinese, an approach that deviated from international legal practice at that time (De la Garza, Baranoa, Pachon, Edmunds, Acosta-Rodriguez, and Morales 1996; Renshon 2000). By doing so, the Qing and the ROC were able to exercise their jurisdiction over ethnic Chinese who possessed foreign subjectship/citizenship.

44

Jus sanguinis is the norm in most countries around the world, as Aristotle suggested a long time ago in the Politics; jus soli is a relatively infrequent variant, usually associated with “settler societies” and often found only in modified form (i.e., citizenship is attributed to persons born on the soil of a given country only after one or two generations, or if one parent is a citizen of the country in question, or after the person has reached a certain age; see Patrick Weil, “Access to Citizenship: A Comparison of Twenty-Five Nationality Laws,” in T. Alexander Aleinikoff and Douglas Klusmeyer, eds., Citizenship Today: Global Perspectives and Practices [Washington, DC: Carnegie Endowment for International Peace, 2001]). Hence the question is to what extent the attribution of citizenship jus soli takes place in other, non-settler society

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Second, from the 1955 Bandung conference to the 1978 economic reform, the PRC discontinued its recognition of dual citizenship, excluding overseas Chinese from its citizenship. This was probably because extraterritorial areas within China disappeared and neighboring countries that had been Western colonies were given independence after World War II, and the PRC desired peaceful relations with neighboring nonaligned nations. Third, the PRC made efforts to rebuild connections with overseas ethnic Chinese after it undertook economic reforms in 1978, in order to entice capital and business expertise from them. Finally, after China became a member of the World Trade Organization (hereafter, WTO) on December 11, 2001, the PRC started actively to adopted the “permanent residence system” (Anonymous 2001a). Since 2001, the PRC has improved its legal system in order to entice foreigners of non-Chinese ethnicity to invest to China or to work for Chinese high-technological companies. Although some scholars regard denizenship as a type of post-national membership, the PRC exploits it as a method to build a strong and rich nation-state. Under the PRC, Chinese national interests directly define Chinese citizenship today.

1. The Legal Definition of Chinese Subjectship/Citizenship45 in Late Qing (1850s~1910): The traditional Manchu idea of a people (or nation) used to be combined with their

contexts; it is really jus soli rather than jus sanguinis that constitutes an anomaly in need of explanation. 45

The Qing court promulgated the Principles of Constitution and pronounced a nine-year program to transform China to a modern nation-state based on citizenship on August 17, 1908. However, the Principles of Constitution was not a modern constitution based on popular sovereignty yet. The nationality law of the Qing defined not its citizenship but its subjectship (Pan 1946). Thus, I use the term nationality instead of the term citizenship.

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territory. For instance, the Manchu word gurun meant a people and their territory (Crossley 1999: 67). Thus, Manchus literally meant the people from Manchuria. Manchuria prior to the Ming-Qing transition was a “melting pot” in which elements of Chinese, Mongol, Korean, Khitan and Jurchen (the name of the ethnic group which became the majority of Manchus) cultures mingled in response to political and economic changes (Crossley 1999: 47). The Qing state thus developed as a regional regime that dominated all the people in Manchuria, regardless of their cultural background. This history conditioned the Qing to have a land-based concept of its subjects from the beginning. For example, the ruling ethnic group of the Qing increasingly called itself Manchu instead of Jurchen. Additionally, the ethnic Chinese who lived in Manchuria prior to the Ming-Qing transition were distinguished from other Chinese and treated as almost the equals of Jurchens by the Qing (Crossley 1999; Elliott 2001). The land-based concept of subjects was accepted by the Qing government before the 1842 Treaty of Nanjing. All people in Chinese territory, except for tribute embassies whose courts expressed their fealty to China, were regarded as the Qing’s subjects. Even after the 1842 Treaty until the year 1860, the Qing government prohibited all Chinese, except officials entrusted with assignments, from going abroad. It excluded the people who left the Qing territory from its subjects before the 1860 Sino-British Treaty of Beijing, forbidding Chinese people who went abroad from returning. For example, in 1727, the Qing government ordered all Chinese abroad to return within a year with a warning that those who did not return within that period would lose the right to return. Then, one year later, the Qing government banned Chinese abroad from returning to China. Although this was before modern citizenship was known in China, the Qing court

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adopted jus soli as the regulating principle toward its subjects.

1.1. The Politics of Jus Sanguinis: China did not adopt jus sanguinis for reasons of national identity. This is apparent for the following reasons: (1) the Qing government traditionally regarded cultural identity mutable as I mentioned above; (2) the Qing as an empire encompassing various ethnic groups and races never equated the cultural boundary with a political one; (3) the Qing government did not adopt an ethnic-centered, exclusionist nationalism, which was exploited by Han nationalists in order to mobilize people against the Qing; and (4) the Qing did not prevent foreigners from being naturalized because the Qing regarded population as one of its most important resources. Instead, jus sanguinis was the result of the political and economic conditions under which the late Qing government existed, including: (1) the violation of Chinese sovereignty by foreign powers, (2) the existence of traditional Chinese legal practices such as the household registration system, (3) the prevalence of jus sanguinis in international legal practices (particularly, the Japanese precedent to adopt jus sanguinis), and (4) the existence of overseas Chinese with huge financial power. However, the Qing court started to adopt jus sanguinis when it was forced to define Chinese subjectship after the Opium War (1839-1842) and the 1860 Sino-British Treaty. Foreigners started to freely come to the Qing after the 1842 Treaty of Nanjing. In addition, the Qing government allowed Chinese to go abroad freely and had to protect overseas Chinese after the 1860 Sino-British Treaty of Beijing. The Qing experienced nationality conflicts with foreign states. Although the Qing court did not enact its nationality law until 1909, the regime started to apply patrilineal jus sanguinis to regulate 79

the subjectship of the Chinese after the 1842 Treaty of Nanjing, which meant that the children of a Qing subject acquired their father’s nationality. The Qing court adopted jus sanguinis in order to protect its sovereignty. Many foreign settlements, as extraterritorial areas, were set up in China after the Opium War. Foreign authorities granted naturalization certificates to Chinese who were born in their settlement areas. In addition, many Chinese who obtained naturalization certificates from the authorities of the European colonies near China were engaged in various political and economic activities in China, since many overseas Chinese with French (Vietnam was a French colony after 1861), Portuguese (Macao was a Portuguese colony after 1887), or Dutch (Indonesia was a Dutch colony after 1798) citizenship were engaged in the China trade, which meant they traveled to China from time to time (Wang 2000: 59). Furthermore, many Chinese who had never left China obtained naturalization certificates from the authorities of the European colonies near China in order to escape the penalties of their crimes in China. Due to unequal treaties and the absence of its own nationality law, the Qing government could not exercise jurisdiction over any Chinese person with foreign naturalization certificates. This situation was explained by a Chinese scholar as follows: For many decades the authorities of the European colonies near China and especially the Portuguese authorities at Macao have, partly for political and partly for pecuniary reasons, granted naturalization certificates to Chinese who have not been out of China and who simply have to allege that they were born in one of those colonies. Having secured this naturalization they continue to reside in China without disclosing their change of allegiance. They enjoy all civil and political rights as native subjects of China, and in some cases they even hold official positions of honor and trust. It is only when they are involved in law suits, which generally arise through their own fault, or when they desire to enjoy such privileges as are secured to foreigners by treaties, that they declare their foreign citizenship. What is worse, the moment their declaration is made, they—thanks to the institution of consular jurisdiction in China—are out of reach of the Chinese court in respect

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both to what they have done before and to what they may hereafter do. The last fifty years are full of instances of cases abruptly dismissed, or transferred to the consular courts, simply because a consul declared that the defendants were naturalized subjects of his country. Respecting the control of these men, China has experienced great difficulty, but in spite of her efforts has failed to affect an understanding with foreign governments (Chiu 1990: 5-6). In 1909, the Office of Compilation and Research in Constitutional Government sent a memorandum to the Qing emperor, explaining the importance of the statute. It reasoned that the statute was necessary for the preservation of state sovereignty while

the

European powers were struggling to obtain more territories and colonies (Yu 1983: 205). A foreign expert in international law also pointed out that one of the most important aims of the law was “to minimize the abuse of the lax naturalization laws of some foreign countries as applied in their colonies near China” (Tsai 1910: 404). A second factor in the Qing government’s adoption of jus sanguinis was the Chinese traditional household registration system, which was based on patrilineal jus sanguinis. Depending on the household registry, the Qing government mobilized human resources for war, maintain social order, and tax its subjects. According to the household registration system, each household member was registered under the name of its patriarch (Elliott 2001). This system gave for the Qing government a model of defining its subjects in the household as a basic unit, and hence, transmitting membership through patriarchal lineage. The household registry was the most comprehensive and reliable record of its subjects when the Qing defined Chinese subjectship after the 1842 Treaty of Nanjing. The Qing government had to define its subjectship on the basis of the household registry despite its territorial understanding of the subject. If not, the Qing government would have had to re-register the some 400 million subjects in their territory, which was just about impossible. As a result, the nationality law of the Qing adopted patrilineal jus

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sanguinis. Studies of China, Japan, and Korea have demonstrated that all three countries adopted the same principle of patrilineal jus sanguinis although they had different national identities at the beginning of their nation-state building (Chiu 1990; Kashiwazaki 1998; Lee 2001a).46 Chickako Kashiwazaki in her article titled “Jus sanguinis in Japan: the origins of citizenship in a comparative perspective” (1998) associates Japanese jus sanguinis with the household registration system, rebutting previous studies that tended to associate ethnic-centered, exclusionist nationalism with jus sanguinis. According to Kashiwazaki, the Japanese state officials had a political or territorial understanding of the nation until the 1880s because of the ethnic heterogeneity of the population and a long history of feudalism ruled by local lords (daimyo). Reflecting a territorial understanding of the nation, the Japanese government attributed subjectship to minority groups such as the Burakumin, Okinawans, and the Ainu although they had been differentiated by racial and ethnic origin for a long time. In this vein, one might have expected the Japanese government to adopt jus soli when it enacted the Nationality Law in 1899. However, the Japanese government adopted jus sanguinis. One of the major factors that disposed the Nationality Law to adopt jus sanguinis was the household registration system. After Japan imported the household registration system from China and Korea around the 6th century, the pre-modern Japanese government (at both central and local levels) used the system to extract resources from the population and control the population (Kashiwazaki 1998). In addition, when the Japanese government started to build a modern nation-state with the 1868 Meiji Restoration, it organized the population

46

I will elaborate on the effect of the household registration system on the Korean nationality law in Chapter 6. Thus, I just explicate the Japanese case here.

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on the basis of the household registration system. The Meiji government promulgated the Household Registration Law in 1871 and used the registry to enforce compulsory education and universal conscription, both of which were essential parts of nationbuilding. The drafters of the Nationality Law of 1899 paid particular attention “to make it compatible with our country’s unique family (ie) system” (Kashiwazaki 1998: 285). The analogy between the Chinese case, which was ethnically much more complex and, thus, much more likely to adopt jus soli, and the Japanese one could be explained by the household registration system. Finally, international legal practice positively affected the Qing government’s adoption of jus sanguinis. Prior to 1909, the Qing government had had no nationality law. The Qing government had to learn from the example of the nationality laws of Western powers. In particular, the Qing government enacted its nationality law in relation to foreign countries, and considered international legal practice. In those days, jus sanguinis was much more prevalent than jus soli. The lawmakers of the Qing adopted jus sanguinis despite the Chinese ethnic complexity, because of its compatibility with international legal practice. Kashiwazaki (1998) makes a similar argument about Japan. She argues that scholars and officials who drafted the Japanese nationality law were heavily influenced by international legal practice because nationality laws were always multilateral. According to Kashiwazaki, the Japanese lawmakers adopted jus sanguinis despite the Japanese ethnic complexity simply because the majority of countries adopted jus sanguinis. The Qing court finally promulgated its statute on Nationality in 1909 (see

83

Appendix). 47

This statute had three features: jus sanguinis, recognition of dual

nationality, and inequality between genders. First, the statute upheld jus sanguinis of the previous unwritten regulations regarding subjectship. The statute followed jus sanguinis as the primary principle (Sections 1, 2, and 3, Article 1, Chapter 1), while jus soli was followed as a supplementary principle to a minimum (Article 2, Chapter 1). The Qing court reserved Chinese citizenship for ethnic Chinese abroad in any generation of a patriarchal line. In addition, the 1909 statute adopted the principle that permission of the Qing court should be required to renounce Chinese subjectship (Article 11 and Article 12). Thus, Chinese descendants who had been born abroad and did not get permission of the Qing court to renounce Chinese subjectship had to maintain it, amounting to the recognition of dual citizenship. Lastly, the statute discriminated against children of Chinese women as opposed to children of Chinese men when they acquired citizenship by birth (Article 1). Furthermore, the 1909 statute did not allow women the right to choose their nationality regardless of their marital status (Article 5).

Naturalization: Jus sanguinis did not go hand in hand with an exclusionist subjectship policy in Qing China. The Qing opened the door to easy naturalization by stipulating a provision that foreigners who rendered notable service to China could obtain Chinese subjectship without releasing their original nationality (Article 4). Indeed, the Qing government was willing to allow Chinese subjectship to immigrants from Russia, Korea, and so on, until

47

During the Qing Dynasty (1644-1911), the Qing central government directly controlled only the eighteen provinces (later to become nineteen with the addition of Taiwan), which were called China proper, while Mongolia, Manchuria, and Tibet were autonomous regions with their own laws and legal system. Thus, it was not clear if the statute was applicable to Mongolia, Manchuria, and Tibet from 1909 to 1911 (Chiu

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the collapse of the Qing in 1910 (Lee 1999). To the Qing court, an increase of population meant an increase in revenue at that time.

Discrimination against Women: The 1909 statute did not accept equality between genders. The children of Chinese women became Chinese nationals only if their fathers were stateless or unknown, while the children of Chinese men became Chinese nationals regardless of their mothers’ nationality. This demonstrated that the Qing government adopted not jus sanguinis but patrilineal jus sanguinis (patriarchal jus sanguinis), which was the principle that household registration had adopted. In addition, under the 1909 statute, the nationality of a married woman automatically followed her husband’s nationality. A foreign woman who married a Chinese acquired Chinese subjectship regardless of her decision. Likewise, a Chinese woman who married a foreigner automatically forfeited her Chinese subjectship. As long as her husband was alive, a married woman could not apply for naturalization or be released from her Chinese subjectship under the statute. Culturalists would attribute the patrilineal jus sanguinis and the disregard of women’s choice of nationality to Chinese traditional patriarchy. However, I suggest that those discriminatory elements of the statute did not directly result from a Chinese national identity that emphasized patriarchal lineage. I argue this for two reasons. First, China removed this discrimination against women, in spite of strong patriarchal feelings among Chinese people, as a result of the changes in

1990: 13).

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international legal practice and the domestic political situation.48 Adopting and removing discriminatory provisions that disregarded women’s choices in the nationality laws rather directly depended on the changes in international legal practice. In the 19 th century and later, many European countries had the same discriminatory provisions in their nationality laws. The 1909 statute and other nationality laws of the Qing were thus made compatible with international legal practice. However, the situation began to change after the Russian Revolution of 1917. Based on the principle of equality between the genders, the Russian Soviet Federated Socialist Republic government stipulated that marriage would not affect the citizenship of women for the first time in history in 1918. After this date, many European countries adopted the principle of equality between the genders and removed some discriminatory provisions. Thus, the 1929 Chinese Nationality Law reflected new international legal practice and removed unequal gender provisions (Wang 1983: 223). Later, the victory of the CCP brought fundamental changes to the nationality law. Second, as previously mentioned, the household registration system could be used to explain patrilineal jus sanguinis in China. East Asian countries that had different national identities but maintained similar household registration systems adopted patrilineal jus sanguinis and disregarded married women’s right to choose their nationality. For example, Article 5 of the 1899 Japanese Nationality Law stipulated the loss of citizenship of a Japanese woman who married a foreign man and the acquisition of the Japanese citizenship of a foreign woman who married a Japanese man. According

48

It is well known that popular Chinese patriarchal ideas cause serious social problems such as the cases of female-infanticide that occur up to the present. I will elaborate on the removal of some discriminatory provisions toward women from the 1929 Nationality Law in relation to international legal practice later.

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to explanatory notes of Article 5, ‘should a wife who is married to a Japanese husband remain as a foreigner, it would create a situation where a foreigner is present in a Japanese family (ie). Therefore, she shall be a Japanese.” (Kashiwazaki 1998: 286) The same logic was likely to be applied when the 1909 Chinese statute did not recognize married women’s right to choose their nationality.

1.2. Policy toward Chinese with Foreign Citiznship and Dual Citizenship: As I previously mentioned, the Qing government was strongly concerned about its jurisdiction over Chinese who obtained foreign citizenship from extraterritorial regimes imposed by Western powers on China or from foreign authorities in the European colonies near China. This concern explained the Qing government’s attitude toward dual citizenship. The Qing recognized dual citizenhip in practice, although Article 11 and Article 12 seemed to be stipulated for preventing dual citizenship. Literally, Article 11 stated that the Chinese had to release their Chinese citizenship before acquiring foreign citizenship. Article 12 defined the prerequisites that had to be fulfilled in order for a subject to be released from his Chinese citizenship. However, a country that wanted to prevent dual citizenship usually stipulated that a citizen who had acquired foreign citizenship automatically forfeited his citizenship. In legal terms, it was called the principle of a negative act.49 Supplemental Provisions 1, 2, 3, 4 and 5 all stipulated that all Chinese who had acquired foreign citizenship had to report the fact to the proper

49

For example, the Republic of China also maintained the principle of a positive act and allowed dual citizenship. However, the People’s Republic of China and the Republic of Korea adopted the principle of a negative act and, thus, recognized dual citizenship only exceptionally and temporarily (Chiu 1990; Wang 1983).

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Chinese authorities. If not, they were regarded as Chinese subjects. By doing so, the Qing government clarified that it was willing to prohibit a Chinese from acquiring foreign citizenship in order to avoid Chinese jurisdiction. Thus, the Qing government allowed dual citizenship, which only a few countries did in those days. Vargas (1996) listed 40 countries that accepted dual citizenship in 1996. The draft memorandum for the U.S. Commission on Immigration Reform prepared by Morrison & Foerster LLP in 1997 wrote, “at least 37 and possibly as many as 47 countries allow their nationals to possess dual citizenship” (LLP 1997: 9). Eugene Goldstein argued that 55 countries accepted dual citizenship in the world in 1998. Renshon in his study listed 89 countries that allowed dual citizenship in 2000 (Renshon 2000). In addition, a survey by a Hispanic advocacy group pointed out that only 7 out of 17 Latin American countries (41%) allowed dual citizenship in 1996 (De la Garza et al. 1996), while 14 of them (84%) did by 2000, only four years later (Renshon 2000). These data demonstrated that the number of countries that allow dual citizenship has been growing rapidly in recent years. But why did the Qing government enact the 1909 law allowing dual citizenship? I suggest that it was because the Qing government was willing to claim its jurisdiction over Chinese with dual citizenship who resided in the Chinese territories on the basis of international customary law. According to international customary law, a Chinese citizen with dual citizenship was a Chinese subject in Chinese territory (Wang 1983: 226).50 By adopting jus sanguinis and this principle of a positive act, the Qing government gave

50

The ROC, which also had the same jurisdiction problem with the European powers, clearly stipulated her jurisdiction over Chinese subjects with dual citizenship in her territory. According to the 1929 Nationality Law, “The status of a dual national Chinese in the Republic of China is the same as that of a Chinese with single Chinese nationality” (Chiu 1990: 34).

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Chinese citizenship to ethnic Chinese born in an extraterritorial regime in China and even in foreign countries and executed its jurisdiction over the Chinese subjects until they were released from their Chinese citizenship. Although not many countries accepted dual citizenship at the beginning of the 20th century, it did not matter to the Qing government. From this, it was also confirmed that the direct motive for enacting the statute was securing the jurisdiction of the Qing. Adopting jus sanguinis and the principle of a positive act by the Qing government resulted from political concern over its jurisdiction rather than exclusionist, ethnic nationalism, which the Qing did not hold. The Qing government’s citizenship policy toward overseas Chinese born in the then Dutch East Indies (now Indonesia) also supports my argument about the motive for adopting jus sanguinis and the principle of a positive act. According to Hungdah Chiu (1990) and Yu Sheng (1983), the 1909 statute was a direct measure to deal with the new Dutch law that regarded all the Chinese born in the then Dutch East Indies (now Indonesia) as Dutch citizens. Thus, the legal status of the Chinese born in the then Dutch East Indies was seriously considered by the Qing government. According to Chiu, by adopting jus sanguinis, the Qing reserved its right to exercise diplomatic protection over overseas Chinese. However, the Qing government gave up its right to exercise diplomatic protection over overseas Chinese born in the then Dutch East Indies, thereby approving the Dutch jurisdiction over them. The Qing government claimed only its jurisdiction over Chinese with both Dutch and Chinese citizenship in the Chinese territory. On May 8, 1911, the Qing and the Netherlands agreed, “The Chinese in the Dutch Indies, who were regarded as Dutch subjects under Dutch law, reserved the right to revert to their Chinese citizenship when they returned to China (Chiu 1990: 6).” The Dutch Indies was only one of many European colonies near China, where numerous overseas Chinese resided and 89

frequently returned to China. By adopting jus sanguinis, the Qing reserved her jurisdiction over overseas Chinese in Chinese territory in the long run. During its later years, the Qing government wooed overseas Chinese for their investments and technical knowledge (Wang 2000: 67). One of the important reasons why the Qing government allowed them to maintain Chinese citizenship was because overseas Chinese who had notable financial power and technological expertise could participate in developing the empire’s economy. This also helps explain why the Qing allowed dual citizenship. China’s policy toward overseas Chinese changed dramatically in a relatively short period of time, without regard to Chinese national identity. Political and economic concerns explained a lot of those changes. I will demonstrate what differences the Qing, the ROC, and the PRC had in their policies toward overseas Chinese and analyze what produced those differences later.

1.3. The Qing’s Policy toward Korean Immigrants: The Qing government’s policy toward Koreans in Manchuria confirmed that there was no close connection between jus sanguinis and exclusive nationalism in China. In particular, the Jiandao (Gando in Korean, the ancient name for the northern bank of the Tumen River) Treaty demonstrated that the Qing government gave priority to its territorial sovereignty over jus sanguinis. At the time of the treaty, Korean and Chinese officials had already been negotiating over the allocation of the Jiandao for over two decades. As early as 1712, Joseon and Qing dynasty officials sought to delimit and demarcate this section of the frontier. However, a number of significant ambiguities remained. With the rise of modern nationalism and new concepts of territorial sovereignty, these ambiguities produced conflicts between China and Korea in the early 90

1900s. However, Japan, in control of Korean foreign policy since 1905, signed the Jiandao Treaty with the Qing that recognized the Qing’s claims on the Jiandao area in 1909 in exchange for the rights to lay railways and open centers for Japanese trade in the main cities and towns in China. According to the Jiandao Treaty, about 100,000 Koreans in Jiandao obtained full Chinese subjectship, including the rights to own land and property (Lee 1999). This demonstrated that jus sanguinis was not adopted for exclusionist concerns toward foreigners and that the Qing government was very inclusive toward foreigners despite its jus sanguinis. Although the Qing government adopted jus sanguinis, it was willing to give up jus sanguinis for its territorial sovereignty. In other words, the boundary of subjectship was not so rigorous that political concerns might change the boundary for the Qing. Therefore, the case of the Qing leads me to challenge two propositions: (1) that national identity determines the legal definition of citizenship and (2) that the legal definition of citizenship is very rigorous and stable because it is based on a long-term cultural identity.

In conclusion, the Qing government adopted jus sanguinis as a primary principle despite its state-centered, inclusivist national identity. Sovereignty concerns, traditional legal practices, international legal practice, and the expectation of financial support from overseas Chinese explained why the Qing government adopted jus sanguinis. In addition, by recognizing dual citizenship the Qing government partly abandoned international legal practice in order to execute its jurisdiction over ethnic Chinese who possessed foreign subjectship/citizenship. Although the Qing government was seriously concerned about international legal practice, it recognized dual citizenship for the sake of sovereignty. This deviated from international legal practices at that time. 91

2. The Legal Definition of Citizenship under the Nationalist Regime (1912~1949): After the Republic of China (hereafter, ROC) was established on January 1, 1912, the ROC promulgated a Provisional Constitution on March 11, 1912. Former Qing subjects legally became the citizens of the Chinese Republic. The Provisional Constitution decreed that “The territory of the Chinese Republic consisted of 22 Provinces, Inner and Outer Mongolia, Tibet, and Qinghai (Art. 3)” (Pan 1946: 150). Thus, the ROC inevitably became a multi-ethnic state. The ROC enacted policies to protect minorities and to promote the unity of the Chinese nation. For example, Article 5 of the Provisional Constitution stipulated, “Citizens of the Chinese Republic are all equal and there shall be no racial, class or religious distinction.” (Pan 1946: 150) In addition, the ROC enacted a law to protect the property of the Qing royal family, which had been the symbol of the unity of various ethnic groups in China. From 1912 to 1928, China had two governments operating under the name of the ROC: The Warlord government in the North and the Nationalist government in the South. However, both Chinese governments adopted the five-color flag as their national emblem, which symbolized the unity of the various ethnic groups in China. From the beginning, harmony among ethnic groups in China was one of the most important political goals of the ROC government. The ethnic variety in China and political goals produced a rather inclusive legal definition of citizenship despite its reliance on patrilineal jus sanguinis. The ROC government promulgated the Nationality Law on November 18, 1912. Later, it amended this and published a Revised Nationality Law on December 30, 1914. These Nationality Laws were in substantial agreement with the 1909 statute, reflecting 92

the republican form of the new Chinese state. After the Guomindang (Kuomintang or Nationalist Party: hereafter, GMD) came to power in 1928, the GMD government eliminated some discriminatory provisions against women in the previous laws and promulgated its own Nationality Law in February 1929 (see Appendix). The 1929 Nationality Law applied to China from 1929 to 1949, while the GMD government was in power. Even after the nationalist government lost power in late 1949, this Law remained in force in China until the communist government enacted its new Nationality Law in 1953 (Cohen and Chiu 1974). The 1929 Nationality Law subscribed in total to the basic principles that the statute of 1909 had adopted: jus sanguinis, recognition of dual citizenship, and inequality between genders. However, the 1929 Nationality Law also adopted jus soli and jus domicili to a far greater degree than before and removed some discriminatory provisions toward women that the 1909 statute had contained. The 1929 Nationality Law adopted jus sanguinis as the primary principle and combined it with patriarchy. In particular, patrilineal jus sanguinis predominated in Article 1 and Article 2, which described the acquisition of Chinese citizenship through birth and through marriage, respectively. The Nationality Law differentiated between Chinese women’s children and Chinese men’s children. While Chinese men’s children acquired Chinese citizenship at birth regardless of their mothers’ citizenship, children born to Chinese women and foreign men could not. Furthermore, a foreigner who was the wife of a Chinese national could acquire Chinese citizenship through marriage, while a male alien could not acquire Chinese citizenship through marriage under the 1929 Nationality Law.

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2.1. Naturalization: Adopting jus sanguinis, the naturalization of foreigners who settled in China was a complex process: (1) Submission of an application; (2) Submission of a declaration of intention; (3) Submission of a document of guarantee signed by two persons at the applicant’s place; (4) The Ministry of the Interior’s approval; and (5) The applicant’s publishing the approval notice in two newspapers (Chiu 1990: 18-19). To obtain approval from the Ministry of the Interior, the foreigners had to meet the conditions specified in Article 3. The Chinese Nationality Law also defined conditions for bypassing the complex procedure or relaxing some of requirements. According to Article 4, the 1929 Chinese Nationality Law adopted both jus soli and jus domicili in naturalizing foreign nationals. Thus, second generation immigrants could easily acquire Chinese citizenship. On the contrary, the Korean naturalization policy never adopted jus soli and jus domicili and never advantaged second (or even third) generation immigrants until 1997. In addition, Article 6 of the 1929 Nationality Law exempted foreigners having rendered great services to China from all naturalization requirements laid down in Article 3. As a result, China continuously opened the door of citizenship toward foreigners despite applying jus sanguinis as a primary principle. For example, the Chinese naturalization procedure under the 1929 law was much simpler even than the Korean counterpart under its nationality law enacted in 1948. Indeed, the ROC policy was more inclusive than the ROK’s. The ROK naturalized only 528 people, most of whom were Chinese husbands of Korean women, between 1986 and 1995. In contrast, the ROC

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naturalized 4,902 foreigners and their family members (1,832 applicants and 3,070 family members of applicants) between June 1928 and June 1935, among whom there were only 101 female foreigners who acquired Chinese citizenship through marriage. Considering that international communication, transportation, and globalization progressed far less in the 1930s than in the 1990s, the differences in the number of naturalized persons by the ROC and ROK are very significant. Furthermore, the ROC naturalized more than 4,000 White Russians, and about 300 foreigners who emigrated from Great Britain, the United States, Germany, France, Italy, India, Switzerland, Denmark, Poland, and Afghanistan; these groups were racially distinguished from the Chinese. Korean persons (then Japanese subjects) naturalized in China numbered only around 500 (Chiu 1990: 19). It was particularly interesting that an overwhelming majority of the naturalized foreigners at that time were not of the “yellow race,” nor of Confucian culture. Although it was certain that there were more Caucasian applicants, I inferred from this that Chinese naturalization policy did not discriminate against applicants of a different race or cultural background. Chinese citizenship was not very exclusive to ethnic others. The strong state-centered, assimilationist Chinese national identity affected positively the citizenship policy so that foreigners could acquire Chinese citizenship in spite of their notable racial and cultural differences, at least until the PRC was founded in 1949. The 1929 Nationality Law imposed the same restriction of civil and political rights not only on a naturalized person (Article 9) but also on an ethnic Chinese who recovered her or his Chinese citizenship (Article 18) although the term of restriction varied from 3 to 10 years. Under the 1929 Nationality Law, a naturalized person had to satisfy the following conditions in order to remove the restriction: (1) be domiciled in China after naturalization and still reside in China; (2) be above 95

20 years of age and have legal capacity according to Chinese law; (3) be of good moral character; (4) have the ability to speak and write Chinese; (5) show no evidence of disloyal remarks and behavior toward [the ROC]; and (6) have substantial property or possess sufficient skills to support him/herself (Chiu 1990: 24). These conditions were not so difficult to satisfy. We might infer that the ROC government did not intend to discriminate against naturalized citizens. Additionally, once the restriction of civil and political rights was removed, the ROC government did not legally differentiate naturalized citizens from natural-born citizens (Chiu 1990: 24-25). Compared not only with the exclusivist Korean law but also with the inclusive law of the U.S.A., this was very generous toward naturalized citizens. For example, naturalized citizens were eligible for the office of President in China, while they were (and are) not in the U.S.A. (Pan 1946: 36). This might be regarded as the result of the state-centered, inclusive Chinese national identity that was institutionalized under the ROC.

2.2. Discrimination against Women: The 1929 Nationality Law mostly continued the principle of patrilineal jus sanguinis from previous nationality laws and, thus, maintained some discriminatory provisions against women. For example, a foreign woman who married a Chinese could acquire Chinese citizenship if she wanted, while a foreign man who married a Chinese could acquire Chinese citizenship only through the naturalization procedure that I mentioned previously. However, the 1929 law removed some discriminatory provisions against women that the previous laws had. As I mentioned previously, under the 1909 statute and the 1912 and 1914 nationality laws, the citizenship of a married woman depended on her husband’s citizenship regardless of her decision. A foreign woman who

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married a Chinese automatically acquired Chinese citizenship. Likewise, a Chinese woman who married a foreigner automatically forfeited her Chinese citizenship. However, this discriminatory provision was removed from the 1929 Nationality Law. Why did the Chinese government change the legal definition of citizenship? It is unlikely that this was related to changes in Chinese national identity based on patrilineage, since patriarchism remains strong in Chinese society up until the present. As I mentioned previously, many European countries adopted the principle of equality between the sexes and removed some discriminatory provisions toward married women after the 1917 Russian Revolution. Thus, the drafters of the 1929 Nationality Law acknowledged this new international legal practice and reflected the practice in the 1929 law (Wang 1983: 223). The study of Japanese nationality law also demonstrates that the change in international legal practice directly affected the Japanese nationality law. Compatibility with laws in other countries was apparently important for nationality laws (Kashiwazaki 1998: 286-287). China accepted international legal practice in order to reduce conflicts with other countries unless international legal practice is incompatible with its national interests.

2.3. Policy toward Ethnic Chinese and Dual Citizenship: As previously discussed, the 1929 Nationality Law continued the tradition of jus sanguinis as the primary principle in determining a person’s nationality. The Nationality Law also maintained the principle that a positive act should be required to renounce Chinese citizenship. The 1929 law permitted Chinese citizens to renounce their Chinese citizenship only with the approval of the Ministry of the Interior. Adopting the principle of renouncing Chinese citizenship with government approval, the ROC government 97

prevented Chinese citizens from acquiring foreign citizenship from the extraterritorial regime imposed by Western powers on China before 1945 or neighboring countries in order to avoid Chinese jurisdiction. Presenting the revised draft of the Nationality Law in 1929, Fu Ping-chang, Chairman of the Foreign Affairs Committee of the Legislative Yuan, stated: There are foreign concessions in China such as in Shanghai and other cities where some Chinese acquired foreign nationality in order to enjoy the privileges of foreigners and to avoid the obligations of Chinese citizens; therefore, [the Nationality Law] should prevent Chinese from acquiring foreign nationality at will (Chiu 1990: 10). Since the sovereignty problem that the previous Qing court faced remained until 1945, the ROC government adhered to the same solution. As a result, many overseas Chinese maintained dual citizenship under the 1929 Nationality Law of the ROC as they did under the 1909 statute on Nationality of the Qing. However, the policy of the ROC toward overseas Chinese was somewhat different from that of the Qing government. While the Qing government did little to protect overseas Chinese, the ROC did many things to protect them. The policy toward overseas Chinese by the ROC was very ethnic-centered and interventionist. The ROC started to call overseas Chinese Huaqiao (literally, Chinese sojourner), which connoted the affirmation of their national consciousness, a faith in their loyalty, and the expectation of their participation in developing a new China. At the same time, the ROC government organized an Overseas Chinese Affairs Department under the Ministry of Foreign Affairs. The ROC government made an effort to protect overseas Chinese diplomatically, and to help their ethnic education and identity retention. The ROC government supplied programs for new textbooks and sent trained teachers to overseas Chinese communities.

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In addition, the ROC’s endeavor to preserve and protect overseas Chinese became even stronger when the GMD came to power in 1928. For example, the Chinese government established a research center for the study of the overseas Chinese at Jinan University in Shanghai and encouraged scholars to produce in-depth studies of overseas Chinese in order to make better policy for them (Wang 2000: 67- 71). The ROC policy toward overseas Chinese was reflected in the 1929 Nationality Law. Overseas Chinese who had lost their Chinese citizenship could recover it at any time with the permission of the Ministry of the Interior under the 1929 Nationality Law (Article 16). There was no residence or domicile requirement for overseas Chinese as long as they were of good character and possessed sufficient property or skills and abilities by which they could make an independent living. Furthermore, while the 1909 statute required that naturalized foreigners cancel their original nationality in order to reduce dual citizenship (Article 3 paragraph 5), the 1929 Nationality Law removed this requirement and authorized the Ministry of Interior to examine each case. Thus, overseas Chinese could acquire Chinese citizenship without losing their other citizenship. Why did the ROC (especially the GMD government) adopt an ethnic-centered, interventionist policy toward overseas Chinese unlike the Qing? Most scholars have presumed that the reason was either because most Chinese had an ethnic-centered national identity or because Han elites, who had emphasized an ethnic-centered national identity against the Qing before the 1911 Revolution, dominated the ROC and upheld ethnic nationalism. However, the ROC and the PRC respectively had different citizenship policies toward overseas Chinese in spite of a relatively stable popular national identity. In addition, as reviewed in Chapter 3, Chinese elites and nationalists kept a distance from ethnic nationalism and vigorously promoted a state-centered national identity after the 99

1911 Revolution. Thus, it seems implausible that either the ethnic nationalism of the Chinese elite or popular ethnic-centered national identity should have laid behind the ethnic-centered, interventionist policies. Instead, two political conditions made the ROC execute an inclusive, interventionist policy toward overseas Chinese: (1) the overseas Chinese actively participated in building the ROC, and (2) the ethnic-centered, interventionist policy did not create conflicts at the time with neighboring countries that were colonies of Western powers until 1945. Overseas Chinese were very supportive of Sun Yat-sen’s nationalism before and after the 1911 Revolution. The highly emotional Song of Revolution (Gemingge) was widely sung by overseas Chinese and loyalty to China was very strong among overseas Chinese before the Revolution. Overseas Chinese enthusiastically supported Sun Yat-sen and the Chinese nationalists. They supplied political funds and human resources for the nationalist revolution. The Guomindang recruited new members from overseas Chinese. Overseas Chinese included patriots and founders of the ROC. It was natural that Sun Yatsen and his followers kept faith with overseas Chinese and wanted to offer them Chinese citizenship after the founding of the ROC (Wang 2000). The citizenship policy of the ROC helped the overseas Chinese bring their technical knowledge back to China and invest in the economic development of China. Furthermore, the Southeast Asian countries, where most overseas Chinese resided, were European colonies in those days. The Western powers were not threatened by the inclusive nationalist policy and the interventionist policy toward ethnic Chinese in their territory. On the contrary, the colonial powers exploited the ethnic conflicts between ethnic Chinese and native people in their colonies. Therefore, they did not strongly object to the Chinese interventionist policy and had little conflict with the Chinese inclusive 100

citizenship policy toward overseas Chinese. As a result, China could maintain an inclusive and interventionist policy toward overseas Chinese up until the time when the former colonies in Southeast Asia became nation-states after World War II.

2.4. Naturalization of Korean Immigrants: After the Revolution in 1911, China entered the Warlord period in 1916. Yuan Shikai and his Northern Warlord government controlled Manchuria between 1912 and 1916. After Yuan Shikai died in 1916, warlord Zhang Zuolin (and his son Zhang Xueliang after Zhang Zuolin was assassinated by Japan in 1928) and his Fengtian government became the real power in Manchuria. Even after the GMD established the ROC in 1928, Zhang Xueliang and the Fengtian government were the only authority in Manchuria until Japan invaded it in 1931 and built the Manchurian state (Manzhuguo or Manchukuo: 1932-45) in 1932. Therefore, the Fengtian government created a policy concerning the Koreans in Manchuria. In 1915, the Northern Warlord government concluded the Treaty of Manchuria and Mongolia with Japan. According to the treaty, ethnic Koreans in Manchuria and Mongolia were identified as Japanese citizens. However, the 1909 Jiandao Treaty identified as Chinese citizens the Koreans in Jiandao, which was the southeastern part of Manchuria. Thus, there were contradictions between the Jiandao Treaty and the Treaty of Manchuria and Mongolia. As the Jiandao area became the base of the Korean independence movement, the Japanese government wanted to nullify the Jiandao Treaty in order to execute its jurisdiction over ethnic Koreans in Jiandao. The Japanese government urged the Fengtian government to follow the Treaty of Manchuria and Mongolia and tried to take the initiative in Manchuria. Japan was too strong for the 101

Fengtian (and the ROC) government to fight against in those days. Thus, the Fengtian government with the authorization of the ROC central government strategically naturalized the Koreans as Chinese citizens despite the ROC’s jus sanguinis in order to prevent the Japanese government from claiming jurisdiction over them (Lee 1999). The Chinese government often coercively naturalized Koreans in Manchuria. The Fengtian government enacted anti-Korean Laws between 1927 and 1928, according to which Koreans were asked to acquire Chinese citizenship within six months so that they would not suffer from the laws. Koreans without Chinese citizenship could not renew their contracts of tenancy for the houses and land. Various new taxes were imposed on the Koreans. However, Japan did not allow the Koreans (who were Japanese subjects then) to renounce Japanese subjectship in order to claim its jurisdiction over them. Thus, the nationality of Koreans in Manchuria became a hot issue between China and Japan. China was weaker than Japan so the Chinese government endeavored to assimilate the Koreans in order to prevent the Japanese acquiring control over them. The Fengtian government urged the Koreans to speak Chinese, to wear Chinese costumes, and to live in Chinese style houses with Chinese style furniture. The Fengtian government prohibited Korean schools in Manchuria. The Chinese central government approved the assimilation policy of the Fengtian government toward Koreans and the Fengtian government maintained the assimilation policy until the Japanese invasion of Manchuria in 1931. As a result, many Koreans acquired Chinese citizenship to protect their lives and property. However, ethnic Koreans in Manchuria did not have either full Chinese citizenship or full Japanese citizenship until 1949. The Korean case also demonstrates the close connection between nationality policy and political concerns over state sovereignty in China. 102

3. The Legal Definition of Chinese Citizenship51 from 1949 to 1978: As I mentioned in Chapter 3, the PRC drove Chinese national identity further in the state-centered direction than the preceding regime. However, the PRC did not initiate a new legal definition of Chinese citizenship for the first few years of its government (Cohen and Chiu 1974). Political and economic factors were very helpful in explaining why the PRC maintained the so-called reactionary nationality law of the ROC until the mid 1950s, and why it launched a new legal definition of PRC citizenship after that. In order to figure out the citizenship policy of the PRC, we should analyze its constitutions, treaties, and administrative orders, because the PRC did not enact a nationality law until 1980. The Ministry of the Interior of the Central People’s Government issued administrative orders about naturalization in 1953. The PRC promulgated its constitution in 1954, which defined the boundary of Chinese citizenship. China and Indonesia signed a treaty concerning the legal status of overseas Chinese in Indonesia in 1955. Then, China signed an agreement on the citizenship of children born to Chinese and Mongol citizens in 1957. Later, it exchanged notes regarding the citizenship of border inhabitants with Burma in 1960 and with Nepal in 1962. China also

51

According to some sinology experts (Cheng and Selden 1994; Solinger 1999), the PRC walled off its cities from the countryside and did not grant to Chinese rural dwellers some rights that Chinese urbanites enjoyed after the 1950s. By doing so, the PRC developed a hierarchical citizenship system between urbanites and rural people in practice. The PRC citizenship system thus excluded not only foreigners but also most Chinese nationals. This hierarchical citizenship was new in Chinese history and was not a result of the Chinese national identity. In other words, the Chinese nation did not make an ethnic distinction between urban and rural dwellers before the PRC. On the contrary, the hierarchical citizenship system amounted to a kind of ethnic distinction between urban and rural. The PRC adopted this citizenship in order to develop a socialist economy following the Soviet experience (Solinger 1999: 32-34; ; Torpey 1998). Pre1983 hukou (household registration) was utilized to control migration between cities and countries and to maintain the hierarchical citizenship system (Solinger 1999: 35-36). In this sense, the hierarchical citizenship system can be an example to support my arguments about the importance of political and economic interests and the pre-1911 legal practice as factors determining citizenship. However, this study focuses on the boundary between foreigners and citizens.

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made joint official announcements with Malaysia in May 1974, the Philippines in June 1975, and Thailand in July 1975. Finally, the PRC promulgated its Nationality Law in 1980 (Wang 1983; Yu 1983). Although the Nationality Law was issued at the beginning of the reform era, it should be regarded as a summary of the citizenship policy before the post-reform period. Sheng Yu, a member of the Council of the Chinese Society of International Law and a Deputy Director of the Law institute, Chinese Academy of Social Sciences, thus writes, “The Nationality Law of the People’s Republic of China adopted on September 10, 1980, is a concentrated expression of China’s consistent policies and protracted experience in handling the nationality question [before the reform]” (Yu 1983: 214).

3.1. Policy toward Overseas Chinese and Dual Citizenship: Analysis of the PRC’s policy toward overseas Chinese strongly suggests that political interests rather than national identity determined the boundary of citizenship in the PRC. Furthermore, contrary to the culturalist argument, national identity was not an independent variable but a dependent variable. In other words, political interests changed national identity in the PRC rather than the other way around. After the PRC was founded in 1949, it faced two serious problems in relation to its citizenship policy: (1) the dual citizenship of overseas Chinese and (2) the citizenship of inhabitants in the border regions. After World War II, the Southeast Asian countries one after another became independent nation-states. Unlike colonial regimes established by Western powers in Southeast Asia, the new nation-states had to produce loyal citizens and allowed no more Chinese interventionist policies toward ethnic Chinese in their territory. The new Southeast Asian nation-states made efforts to protect their sovereignty. 104

In addition, those nation-states, most of which were anticommunist, suspected the PRC of spreading communist revolution. Thus, the new Southeast Asian nation-states objected to the existing interventionist policy of the previous Chinese regime toward overseas Chinese. Those nation-states enacted laws to prohibit China from executing her interventionist policy toward ethnic Chinese in their territory. For example, Indonesia proclaimed in 1949, “[T]he Chinese in Indonesia must, within a period of two years (from December 27, 1949 to December 27, 1951), state the nationality they wish to choose, and those who fail to state their choice after the period expires will, without exception, be regarded as Indonesian nationals” (Yu 1983: 210). Therefore, the dual citizenship of overseas Chinese became a hot issue between the PRC and the neighboring nation-states in Southeast Asia. From 1948 to the mid-1950s, the PRC’s foreign policy was based on the Socialistcamp line, which regarded all capitalist nation-states as the enemy (Van Ness 1993). The PRC intended to export socialist revolution to Southeast Asian countries, most of which were capitalist and, thus, their presumed enemies. For example, it supported communist parties in Burma, French Indochina, Indonesia, Malaysia, and the Philippines (Clough 1993). In this context, the PRC hoped that overseas Chinese could be the messengers of communist revolution in neighboring countries in Southeast Asia. It regarded overseas Chinese as its latent allies against the enemies. In addition, China expected that overseas Chinese would return to China and participate in building a strong and rich Chinese nation-state.52 The PRC accepted all overseas Chinese who wanted to return for its first few years. Thus, the PRC inherited and continued the interventionist policy from the

52

In reality, hundreds of thousands of overseas Chinese returned to the PRC in the 1950s (Wang 1983: 936).

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previous regimes, allowing overseas Chinese to hold dual citizenship. After the Chinese Communist Party came to power, the Chinese government declared, “all of the reactionary Guomindang government’s laws, decrees, and judicial systems that oppress the people should be abolished” (Cohen and Chiu 1974: 749). However, the PRC enacted no nationality law or regulation. Legally this meant that the PRC retained the 1929 Nationality Law. 53 The 1953 census of the PRC included about 11.5 million overseas Chinese as part of the Chinese population (Fitzgerald 1972: 79). In addition, the 1954 Constitution of the PRC stipulated, “The PRC protects the proper rights and interests of Chinese residents abroad (Article 98)” (Wang and China 1976: 55). Article 23 of the 1954 Constitution of the PRC stipulated that deputies elected by overseas Chinese would participate in the National People’s Congress (Wang and China 1976). It was certain that the PRC regarded overseas Chinese as its citizens.54 However, the PRC’s interpretation of international relations and its foreign policy changed from the ‘socialist-camp line” into the “Third World line” in the mid- and late1950s (Van Ness 1993). This change coincided with the change in the PRC’s citizenship policy toward overseas Chinese. In the mid-1950s, the PRC began to identify itself with the Third World countries. It endeavored to establish good relations with the Third World countries and to gain support from them. In addition, the PRC realized that communism found little resonance among overseas Chinese after most of the pro-communist Chinese

According to Suryadinata, “Many were of the opinion that the PRC inherited the nationality law of the KMT issued in 1929” (Suryadinata 1985: 84). 54 A provision about Chinese abroad disappeared in the 1975 Constitutions of the PRC but reappeared in the 1982 Constitutions of the PRC with some changes: “The People’s Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and the family members of Chinese nationals residing abroad (Article 50)” (China 1982). 53

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abroad returned to the PRC in the early 1950s. Therefore, it started to stand against dual citizenship, to encourage overseas Chinese to acquire the citizenship of the countries where they settled, and to exclude overseas Chinese from its citizenship spacing from the late 1950s (Cohen and Chiu 1974; Wang 1985; 2000). At the Bandung Conference held in 1955, the Chinese Premier Zhou Enlai declared: The problem of dual nationality of overseas Chinese is something left behind by old China... The People’s Government of New China is ready to solve the problem with the governments of the countries concerned (Yu 1983: 211). The PRC settled the citizenship problems of overseas Chinese with the Southeast Asian countries after this conference. China and Indonesia concluded a treaty concerning the legal status of overseas Chinese in Indonesia. The treaty clearly stipulated provisions in order to prohibit overseas Chinese in Indonesia from maintaining dual citizenship. According to the treaty, “Whoever has Chinese and Indonesian nationality at the same time, i.e., any overseas Chinese who was born in Indonesia, should, in accordance with the principle, of voluntariness, choose one nationality within two years after the Treaty goes into force, which would automatically entail the loss of the other nationality” (Yu 1983: 211; , emphasis is mine). This treaty became a prototype of the PRC’s treaty on the citizenship question of overseas Chinese from that time on. From early 1958 on the PRC launched the “three-good” overseas Chinese policy: (1) the PRC would prefer overseas Chinese to choose a local citizenship and those who chose a local citizenship would no longer be Chinese citizens; the PRC would ask them to be loyal to the country in which they resided; (2) the PRC would urge overseas Chinese with Chinese citizenship not to interfere in local politics; and (3) the PRC would accommodate overseas Chinese who wanted to return to China (Fitzgerald 1972: 141-149). The treaties that the PRC signed with Malaysia in 1974, the Philippines in 1975, and Thailand in 1975 all stipulated that 107

citizens would automatically forfeit the citizenship of one country if they acquired the citizenship of the other country. By so doing, the PRC no longer allowed dual citizenship. Concerning the citizenship of border inhabitants, the PRC exchanged diplomatic notes with Burma in 1960 and with Nepal in 1962. Those diplomatic notes also stipulated specific and detailed provisions in order to avoid dual citizenship. The PRC’s foreign policy affected not only the boundary of citizenship but also national identity. The PRC changed the definition of the term Huaqiao, which had originally meant all overseas Chinese regardless of their citizenship. The PRC redefined this term to include only citizens of the PRC living abroad. The PRC used the term Huaren (literally meaning Chinese persons) or the term Huayi (Chinese descendants) for overseas Chinese without Chinese citizenship (Wang 1985: 28-30; ; Wu 1991). While Huaqiao always connoted the identity of Chinese citizenship of an overseas Chinese, Huaren or Huayi did not. By using the term Huaren or Huayi, Chinese citizens widened the emotional distance from overseas Chinese. As overseas Chinese in Southeast Asia lost their Chinese citizenship, political and economic connections with the PRC, and educational support from the PRC, they inevitably continued to lose their Chinese identity. For example, the majority of Chinese children in Indonesia could not speak Chinese by the 1970s (Wu 1991).

3.2. The Naturalization of Korean Immigrants: According to an agreement with the Allies, the Soviet Army liberated Manchuria from Japan before Japan surrendered on August 15, 1945. The Soviet Army handed control over Manchuria to the ROC government in 1946 because the Soviets and the ROC were allied. Thus, the ROC government became the legitimate power in Manchuria. 108

However, Chinese communists backed by the Soviet Red Army rapidly expanded their influence in Manchuria, especially in the rural areas. Manchuria soon became one of the most hard-fought battlefields in the Chinese Civil War. At that time, the number of Koreans in Manchuria reached about 2 million. The Manzhouguo government regarded them as Japanese subjects between 1932 and 1945, and the ROC government regarded them as foreign immigrants after 1945. The CCP’s policy toward ethnic Koreans in Manchuria was somewhat obscure. While the CCP developed a clear general policy toward minorities, the CCP defined Koreans in Manchuria not as a minority but as foreign allies against Japan. The Koreans in Manchuria regarded themselves not as Chinese or Japanese but as Koreans until the end of World War II. The historical process of the acquisition of Chinese citizenship by the Koreans in Manchuria also demonstrated that the boundary of Chinese citizenship was very flexible in light of China’s changing political interests. Under Japanese imperialism, most Koreans in Manchuria were farmers who were oppressed by Japan and exploited by Manchu (or Chinese) landlords. They thus were actively engaged in the anti-Japanese movement and anti-feudalism movement under the influence of communism, which promoted their Korean national identity. Although the Korean communists joined the CCP after 1930 following the Comintern’s organizational principle of “one country, one party,” their ultimate goal was the independence of Korea. They thought that China’s victory against Japan would serve as a stepping stone for the independence of Korea. In cooperation with the CCP, various Korean nationalist guerrilla units in Manchuria organized the Northeast Anti-Japanese United Army (hereafter, NAJUA). The majority of the NEAJA members were Koreans (Lee 1999; Masayuki 1990; Piao 1990). Gim Ilseong (or Kim Ilsung: the late leader of North Korea) was a commanding officer of a 109

Korean unit of the NEAJA. In Yenan, a number of Korean nationalists and communists such as Mujeong and Choe Chang-ik organized the Hwabuk Joseon Dongnip Dongmaeng [North China Korean Independence League] and the Joseon Uiyonggun [Korean Volunteers Army: hereafter, KVA] in 1942. The Koreans in Manchuria enthusiastically supported Korean nationalist movements. They were the reservoir of the soldiers of the NAJUA and other guerrilla units. The KVA joined with the Eighth Route Army or the new Fourth Army of the People’s Liberation Army (hereafter, PLA) of the CCP so that they could cooperate in the Anti-Japanese war. These two Korean nationalist organizations led by communists played a major role in the Anti-Japanese War and the Chinese Civil War (Piao 1990). The CCP basically regarded the Koreans in China as immigrants and foreign allies, most of whom would return to Korea after the independence of Korea. Most of the Koreans held the same perspective. Mao Zedong and Zhu De, the Commander in chief of the PLA, stated that all Korean revolutionaries would regain the independence of their country after defeating Japan in China. Mao and Zhu repeatedly promised that the CCP would help Korean communists and revolutionaries build an independent Korean nationstate (Masayuki

1990).

In

Guanyu dongbei

shijude juti

zhuzhang (caoan)

zhizhongyangdian [Concrete proposition (draft) about situations in Manchuria for fulfilling orders of the Central Committee of the CCP], the Bureau of the Northeast (or Manchuria) of the CCP defined Koreans not as shaoshuminzu (minority nationality) but as qiaojuhanguorenmin (Korean immigrants) in 1945 (Huang forthcoming: 12). As a result, the Bureau of the Northeast of the CCP did not decide if it should officially distribute lands to Korean farmers in Manchuria at the beginning of land reform in 1946. However, there were many Korean commissars, staff, and officials in the various 110

organizations of the Northeast of the CCP in Manchuria. On August 11, 1945, Zhu sent an order to Mujeong: “Mujeong, the commander of the KVA, with his staff shall lead the KVA from Yenan to Manchuria, vanquish the enemy, organize the Korean people, and obtain the independence of Korea” (Huang forthcoming: 10). The NAJUA, which escaped from the Japanese attacks and established a base in the Soviet Union in 1943, returned with the Red Army and organized Koreans in Manchuria. These two organizations became an important part of the CCP organization in Manchuria. This was the reason why Koreans took up various positions in the CCP in Manchuria. The Korean officials in the CCP distributed the same share of land to Korean farmers as to other Chinese farmers and made the CCP to distribute officially lands to Korean farmers shortly after the land reform started in 1946 (Huang forthcoming: 11). At the same time, the Korean members of the CCP mobilized Korean farmers to participate in the Chinese Civil War. The Koreans in Manchuria eagerly joined the People’s Liberation Army to protect their lands from the landlords and the GMD government and fought for the victory of the CCP. Sixty two thousand nine hundred forty two Korean youths in Manchuria joined the Army. This was six percent of the total Korean population. In addition, other Koreans voluntarily supported the CCP in various projects. The Koreans became model citizens during the Chinese Civil War between 1946 and 1949 (Piao 1990). Finally, the Renmin Zhengzhi Xieshang Huiyi [People’s Political Consultative Conference: then legislative organization of the PRC] at the opening ceremony in September 1949 declared, “1.2 million Koreans in Manchuria have been transformed from guest immigrants to host citizens of the PRC” (Huang forthcoming).

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The PRC made an exception55 and allowed Koreans in Manchuria to maintain their North Korean citizenship even after acquiring Chinese citizenship up to 1957 (Lee 1999). Four political conditions explained this policy of the PRC. First, as previously mentioned, the CCP adopted the ‘socialist-camp line” until the mid-1950s. The CCP endeavored to spread the socialist revolution as far as possible. Secondly, the Chinese and Korean communists fought together for a long time and had a good relationship with each other. The Koreans fought with the Chinese against Japanese imperialism. Furthermore, North Korea sent its soldiers to China and supplied grain and other materials for the CCP during the Chinese Civil War (Cumings 1997: 239). The CCP repeatedly promised that the CCP would aid Koreans to build an independent nation-state and complete their revolution as a reward for their help in the Anti-Japanese War and the Chinese Civil War. The PRC assisted North Korea and many Koreans in Manchuria joined the North Korean Army after the Chinese Civil War (Cumings 1997: 238-243). Third, and most importantly, the security of North Korea was directly connected with that of the PRC in facing the threat of the capitalist bloc. The CCP leaders knew well the Chinese diplomatic epigram “chunwangchihan [If the lips are gone, the teeth are cold].” They felt severely “threatened by ‘a free and united Korea’” (Cumings 1997: 283). Thus, the PRC was heartily willing to support the socialist regime in North Korea. Finally, however, the PRC could not openly help North Korea. On the one hand, the USSR did not want the PRC to be influential in North Korea.56 On the other hand, the PRC feared that its intervention in

55

The Ministry of the Interior stipulated provisions for prohibiting naturalized citizens from having dual nationality in 1953. According to the orders, “[F]oreign nationals applying for naturalization in China should complete the procedure of giving up their former nationality or, should there be any difficulty in doing so, make a public statement in the press renouncing their former nationality” (Yu 1983: 211). Thus, it was an exception for ethnic Koreans in Chinese territory to maintain dual citizenship until 1957. 56 On the USSR’s concerns about Korea, see Cumings (1997: 226).

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Korea would cause a US invasion of Manchuria.57 Therefore, the PRC allowed the Koreans in Manchuria to hold dual citizenship. By doing so, the PRC was able to help North Korea in many ways, to escape blame for intervention in Korean affairs, and to keep its influence in Korea. For example, the PRC sent 75,000-100,000 Korean soldiers of the PLA who became the main force of the Korean People’s Army to North Korea from 1948 to the autumn of 1950 (Cumings 1997: 241). The soldiers were ordered to change their uniform and inscribe in their diaries pledges of loyalty to North Korea: I, as a citizen of the Democratic People’s Republic of Korea [North Korea], have solemn duties to my Motherland. Thus I will enter the KPA and faithfully devote my self to the homeland, the people, and the democratic people’s government. If I disobey any of my pledges, I will be dealt with mercilessly by a people’s court (Cumings 1997: 242). In relation to my argument, another interesting thing about Koreans in Manchuria was the change of their national identity and the relationship between their cultural identity and national identity. Most of the Koreans in Manchuria used the Korean language, wore Korean costumes, and fought against Japan with the purpose of achieving the independence for Korea. When World War II ended in 1945, they maintained a Korean ethnic identity and regarded themselves as future Korean citizens. The CCP also regarded them as a kind of ally until the end of World War II. However, the CCP transformed those Korean farmers into Chinese citizens after the end of World War II. First, the 1946 land reform by the CCP initiated the Koreans’ loyalty to China. Under Japanese colonialism, Korean tenant farmers were exploited by Chinese landlords and oppressed by the Japanese authorities. Even after the end of Japanese colonialism the

57

For the same reason, it was not until the US Army threatened the Sino-Korea border that the PRC directly intervened in the Korean War (Cumings 1997: 283-288).

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GMD government did not protect their lives and rights.58 They had only been subjects consecutively of the Joseon Dynasty, Japanese colonialism, and the GMD government but finally became the citizens under the CCP government. The CCP guaranteed a means of making a living through land reform and protected their lives and citizenship rights. They greatly appreciated the CCP for the land they obtained. They fought for the land and for the CCP during the Chinese Civil War. Many Koreans in Manchuria started to regard themselves as Chinese citizens, especially after the CCP’s land reform. Second, shortly after the foundation of the PRC, Koreans in Manchuria were allowed to establish their own Autonomous Prefectures: the Yanbian Korean Autonomous Prefecture was founded on September 3, 1952 and the Changbai Korean Autonomous Prefecture on September 15, 1958 (Cui 1990). The PRC guaranteed them ethnic education, the maintenance of cultural identity, and economic and political power. The PRC protected Koreans in Manchuria as Chinese citizens. Koreans in Manchuria enjoyed modern citizenship for the first time in their history. Although Chinese citizenship lacked some civil and political rights in comparison to Western citizenship, it granted substantive social and economic rights (Wong 1999). Han and Kwon interviewed a Korean-Chinese man in 1990. He had experienced the land reform by the CCP in his 20s. Even though he could not speak Chinese, he dropped tears of gratitude and said, “By the grace of the CCP, I became well-off. I cannot thank the CCP enough.” (Han and Kwon 1993: 94) Many studies of the Korean-Chinese, either by Korean scholars or by Chinese scholars, demonstrated that most Korean-Chinese share the same attitude toward

“The KMT [GMD or Nationalist Party], treating Koreans uniformly as “migrants,” would only grant them residence permits but not recognize their right to live on or own land and property. Moreover, from April to September 1946 they forcefully took 69,730 hectares of land cultivated by Koreans and divided it among landlords and KMT officials, and they seized or confiscated 1,516 businesses run by Koreans, even 58

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the CCP (Han and Kwon 1993; Jeong 1997; Jin 1990; Lee 1999; Min 1992; Piao 1990; Yi 1994). According to Jeong (1997), a Chaoxianzu (Korean-Chinese) scholar, the population of Chaoxianzu was about 1.92 million in 1990. Chaoxianzu ran 1,363 ethnic elementary schools, 288 ethnic high schools, and 1 ethnic university, with a total of about 635,000 Korean students. Although most of the Korean-Chinese were 3rd or 4th generation immigrants, only less than 10% could not speak Korean. Chaoxianzu maintained Korean rituals, costumes, and food preferences. Chaoxianzu ethnically identified themselves with Koreans in Korea, and they distinguished themselves from Han Chinese. However, they regarded themselves as a minority of China and identified themselves with the PRC. Whenever Chaoxianzu mentioned “my country” or “my state,” they meant the PRC. They were very proud of being citizens of the PRC (Han and Kwon 1993). Therefore, the Korean-Chinese maintained a Korean ethnic identity, but they developed a new Chinese national identity in the last several decades. The Korean-Chinese case suggests that ethnic identity and national identity should be clearly distinguished from one another at least in this instance. This case also suggested that citizenship was not only a dependent variable but an independent variable in relation to national identity. This finding shows that the culturalist approach toward explaining cultural identity and citizenship has limits in some cases.

3.3. The 1980 Nationality Law: As the PRC drew aside the “bamboo curtain,” and opened its door to the West after

including private hospitals. Because of the forced seizures, among the 90,496 Koreans living under KMT jurisdiction at the end of 1947, 24,149 had become homeless” (Piao 1990: 69).

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1978, the country expected a dramatic increase in international migration and, thus, citizenship conflicts. Thus, the PRC enacted its Nationality Law in 1980 in order to prepare for the new situation. Although this nationality law was enacted in 1980, it should be regarded as a codification of citizenship policy that had existed before the reform. Thus, Wang Keju, a researcher at the Institute of Law in the Chinese Academy of Social Sciences, wrote, “It is a summation of the experience China has gained in handling citizenship problems in the long years since the founding of the People’s Republic of China” (Wang 1983: 220). Therefore, I refer to this law in order to figure out the policies before the reform. The 1980 Nationality Law was based on four principles (see Appendix). First, it emphasized a unified citizenship based on national equality as an important principle (Article 2). This principle had never been clearly declared in the nationality laws of the previous Chinese regimes. Second, this nationality law also adopted jus sanguinis as the main principle that constitutes citizenship and jus soli as a supplementary principle (Article 4, 5, and 6). Third, this nationality law was based on a strict principle of gender equality (Article 4, 5, 6, 7, and 10). Finally, this nationality law did not recognize dual citizenship (Article 3). The Chinese Communist Party continued to emphasize that a nation was a political and economic community. The CCP criticized ethnic-centered nationalism and endeavored to develop proper minority nationality policies before the founding of the PRC. In the 1930s, the CCP guaranteed the right for minorities to separate into an independent nation from China in order to develop good relations with minorities. However, the minorities occupied up to 70% of Chinese territory. In addition, the land occupied by the minorities abounded with natural resources. Minority areas contained a 116

great amount of wood, water, energy, and minerals, which were essential for building a strong and rich Chinese nation-state (He 1990). After the CCP came to power, it did its best to maintain a unified state. The PRC declared that the PRC was a multi-ethnic socialist nation-state, and all ethnic groups were equal under its Constitution. The PRC allowed some autonomy to minorities but crushed separatist movements among them.59 The 1980 Nationality Law reaffirmed that principle. The PRC shared its border with various countries, and many people continuously crossed the borderlines. The PRC thus had to combine jus soli or jus domicili with jus sanguinis although it adopted jus sanguinis as the primary principle. For example, treaties about border inhabitants decided the border inhabitants’ citizenship based on their domicile (Yu 1983). These PRC’s citizenship practices toward border inhabitants demonstrated the problems that a multiethnic nation-state that adopted jus sanguinis could experience.

3.4. Naturalization: Under the PRC’s Nationality Law, persons could acquire Chinese citizenship through the parents-offspring relationship regardless of their birthplace. In contrast, the children of foreigners could not have Chinese citizenship even if they were born in China and had settled therein. They could acquire Chinese citizenship upon birth only when their parents were stateless or of uncertain citizenship and had settled in China (Article 6). Otherwise, they could acquire Chinese citizenship only through naturalization. The PRC

59

Yet the implication of this principle has been changing over time depending on political and economic

situations. For example, the Hundred Flower (1958), the Great Leap Forward (1958), the Cultural Revolution (1965), and the Economic Reforms (1978) directly affected the PRC’s minority policies (Brugger and Reglar 1994; Dreyer 1976).

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did not stipulate any provision to grant advantages for foreigners born in China, while the previous Chinese regime did. Yet, Article 7, Paragraph 1 stipulated that foreigners who were close relatives of Chinese citizens could be naturalized. It was natural that overseas Chinese had relatives who were Chinese citizens. So naturalization (or restoring Chinese citizenship) of overseas Chinese was easier than that of other foreigners. Kinship relation was still an important criterion for naturalization. Although the PRC emphasized a statecentered, assimilationist Chinese national identity, it gave priority to ethnic Chinese who applied for naturalization depending on jus sanguinis. Furthermore, it adopted jus soli and jus domicili to a smaller degree than the ROC did in its 1929 nationality law. Another interesting thing was that the PRC’s Nationality Law did not stipulate the conditions for naturalization. The previous Chinese nationality laws had stipulated naturalization requirements, such as personal skill, property status, and duration of residence, but the PRC’s nationality law did not. Chinese scholars argued that this was because the PRC did not discriminate against naturalization applicants based on their race, religion, educational level, property status or duration of residence (Wang 1983). An egalitarian socialist ideology partly explained the removal of those requirements. However, I suggest that the more important reason for this was because of the legacy of “policy making by Party edict” (Tanner 1999: 8) and lack of “rule by law” in the PRC. Lack of codified requirements inevitably increased the discretionary power delegated to relevant authorities. As a result, the PRC’s naturalization policy was likely to change according to its national interests. This is confirmed by the changes in the PRC’s citizenship policy toward overseas Chinese and non-Chinese ethnic foreigners after 1980s, which I will review later.

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3.5. Discrimination against Women: The removal of discrimination against women was one of the most notable changes that the 1980 Nationality Law made from the previous nationality laws. As I previously mentioned, the 1929 Nationality Law maintained other discriminatory provisions against women except for the one that did not recognize married women’s right to choose their citizenship. The PRC’s 1980 Nationality Law removed all discriminatory provisions against women. First, the previous nationality laws regarded the citizenship of the father as the criterion to decide the citizenship of newborn children. In other words, the previous laws adopted patrilineal jus sanguinis. However, the 1980 Nationality Law adopted the principle of dual-line jus sanguinis (Article 4). Secondly, under this law, the citizenship of a married woman did not depend on her husband’s citizenship. This law granted foreign men and women who married with Chinese citizens the right to choose their citizenship (Article 7). This law also granted Chinese men and women who married with foreign citizens the right to choose their citizenship (Article 10). Chinese citizens who settled abroad and acquired the citizenship of their spouse would lose Chinese citizenship regardless of their gender (Article 9). The PRC and the ROK had a similar patriarchal tradition but clearly declared equality of gender in their Constitutions, when they were founded in 1949 and 1948 respectively. However, the PRC and the ROK maintained totally different policy regarding gender equality. For example, the PRC actually adopted gender equality in dealing with the citizenship problem after it signed a treaty with Indonesia in 1955. In contrast, the ROK did not remove gender discrimination in nationality law until 1997. This difference was not explained by cultural factors. Indeed, the PRC and the CCP embodied their socialist ideals such as gender equality in their legal system just after the 119

founding of the PRC, consulting the socialist legal system of the USSR (Tanner 1999; Wang 1983). In contrast, the ROK still maintains patriarchal provisions in its various laws such as family law, although it removed gender discriminatory provisions from its nationality law in 1997. In this sense, I suggest that the gender equality in the legal definition of citizenship by the PRC was a reflection of the economic and political program of the CCP and its socialist legal practice (or rhetoric). I will elaborate on this point when I analyze the changes in Korean subjectship/citizenship law in chapter 6.

4. Economic Reform and the Definition of Citizenship after 1978: Chinese economic reform has brought about great changes in the legal definition of Chinese citizenship.

4.1. Overseas Chinese: The PRC initiated its economic reform and modernization program in 1978. Since then the goals of economic reform and modernization directly defined the PRC’s policy priorities. In particular, the PRC paid special attention to mobilizing overseas Chinese to assist with the reform and modernization. It was natural that Chinese policies toward overseas Chinese underwent a dramatic change in accordance with these goals after 1978. As early as 1977, PRC leaders pointed out that the PRC needed a new policy toward overseas Chinese. Deng Xiaoping, then Vice-Chairman of the CCP, mentioned that “overseas Chinese affairs’ should be an important part of the new government work program in 1977. At the beginning of the following year, the Renmin Ribao [People’s Daily], the government’s official newspaper, carried an editorial titled Attention Must be paid to overseas Chinese Affairs:

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They [overseas Chinese] constitute part of the Chinese nation… We should welcome and make proper arrangements for those overseas Chinese who wish to return to China to take part in building up the motherland or to settle down… We should continue to implement the policy set forth by Chairman Mao for settling the question of dual nationality among overseas Chinese and encourage them to acquire the nationality of the country of residence on a voluntary basis. Upon acquiring such a nationality, they are no longer citizens of China, but they are still our kinfolk and friends… As to those overseas Chinese who wish to retain their Chinese nationality, we should welcome their Chinese, and the state has the duty to protect their legitimate rights and interests” (1978 14-16). Although the PRC strictly drew distinctions between overseas Chinese with Chinese citizenship and ethnic Chinese with foreign citizenship from the late 1950s, the PRC saw little difference between those with Chinese citizenship and those with foreign citizenship in terms of their utility for China’s modernization. Furthermore, overseas Chinese with Chinese citizenship accounted only for five percent of the total overseas Chinese population. As a result, the PRC often used the English term “overseas Chinese” to point to both Chinese nationals abroad and ethnic Chinese with foreign citizenship (Bolt 2000: 63). According to Thuno (2001: 921), the major part of the internal documents concerning overseas Chinese for State Council meetings in 1989 and 1996 focused on how to woo overseas ethnic Chinese. The PRC regarded overseas Chinese as the primary sources of capital and expertise that were needed for the modernization of China. This belief was grounded in several factors: (1) the overseas Chinese had plenty of capital and expertise. A recent survey shows that current assets held by overseas Chinese account for 2 trillion U.S. dollars (Jang 1999), (2) they were willing to invest their capital and use their expertise in China, and (3) the PRC believed that they were more credible and their investment was less risky than that of non-Chinese foreigners. After the third plenum of the 11the CCP Central Committee meeting in late 1978, which formed the watershed that opened the

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reform era, the PRC mobilized overseas Chinese through three strategies: (1) organizing various institutions for overseas Chinese affairs, (2) appealing to overseas Chinese” supposed love of China, and (3) improving the treatment of domestic overseas Chinese and providing special preferences for overseas Chinese to invest. First, government and party offices responsible for overseas Chinese affairs were established. The Qiaowu Bangongshi [Overseas Chinese Affairs Office] was established under the State Council in 1978. The Quanguo Guiqiao Lianhehui [All-China Federation of Returned Overseas Chinese] as a mass organization was organized under the PRC’s support. Various offices and committees for overseas Chinese affairs were established at the provincial and local levels. In 1983, the National People’s Congress (NPC) also established a committee on overseas Chinese affairs. Various academic institutions focusing on overseas Chinese were founded. The main goals of those offices were to mobilize overseas Chinese into the PRC’s modernization program (Bolt 2000). The Chinese People’s Political Consultative Conference (CPPCC: an organization of the patriotic United Front of the Chinese people after 1954) founded the Zhonghua Haiwai Lianyihui [China Overseas Friendship Association] in 1997 to promote the unity of overseas Chinese and ethnic Chinese abroad (Thuno 2001). Second, the PRC launched propaganda, cultural activities, and educational programs that were designed to promote loyalty to the PRC and to appeal emotionally to overseas Chinese. The PRC supported overseas Chinese to establish local Chinese schools, supplying educational curriculums and 20 sets of teaching materials used in 78 countries. The PRC dispatched around 150 teachers of Chinese to 20 countries and trained several thousand teachers from overseas for Chinese education. The PRC opened summer language camps for second and third generation ethnic Chinese and taught 122

100,000 overseas Chinese students (Thuno 2001). Finally, at the beginning of the reform era, the PRC provided privileges to returned overseas Chinese in order to attract funds from their relatives abroad. Renmin Ribao stated on January 4 1978: The family members of overseas Chinese and returned overseas Chinese enjoy the same rights and have the same obligations as other Chinese citizens… we must not discriminate against family members of overseas Chinese or returned overseas Chinese… Remittances from overseas Chinese for supporting their families and the legitimate rights and interests of their family members and returned overseas Chinese must be protected” (1978: 15-16). The 1982 Constitution of the PRC included a provision regarding the protection of overseas Chinese with Chinese citizenship, family members of overseas Chinese, and returned overseas Chinese. Although the Constitution clarified that the PRC protected only overseas Chinese with Chinese citizenship in order to persuade countries in Southeast Asia of its non-colonial intentions concerning overseas Chinese, the PRC often sought attachment with both Chinese nationals and ethnic Chinese abroad. The PRC gave preferences to overseas Chinese. An interview with Xiang Nan, executive secretary of the Fujian Provincial CCP Committee, printed on November 1, 1981 by the Hong Kong newspaper Wenweipo clearly demonstrated this: Question: Will you offer more favorable terms to Overseas Chinese investors? Answer: We will offer favorable terms to all foreign investors in Fujian and the terms for overseas Chinese investors will be even more favorable… Foreign investors might not be willing to invest in some projects and we will not invite them to either. But no such restriction will be placed upon overseas Chinese investors, because we treat them as the people of the mainland and regard them as our compatriots. They may put forth any investment plan they wish (Bolt 2000: 60). Guangzhou provincial issued “Temporary Preferential Measures Regarding Investment by Overseas Chinese, Hong Kong, and Macao Compatriots in Guangzhou” in

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1984. The State Council promulgated the “Regulations on Encouraging Overseas Chinese, Hong Kong, and Macao Compatriots to Invest in the Mainland” in 1990. Based on those laws, the PRC provided priorities to overseas Chinese and ethnic Chinese over foreigners and ethnic others. In other words, overseas Chinese regardless of their citizenship enjoyed rights and advantages that neither foreigners nor Chinese citizens could enjoy. The PRC reduced rent and tax for overseas Chinese and allowed them to reside in urban areas. Finally, the PRC enacted the “Law of the Protection of the Rights and Interests of Returned Overseas Chinese and Relatives of Overseas Chinese” on September 7, 1990 (see Appendix). Although this law was designed for overseas Chinese with Chinese citizenship, it applied to overseas Chinese without Chinese citizenship (Bolt 2000: 60; ; Thuno 2001: 921). According to this law, the PRC granted not only civil rights (Article 9) but also social rights (Article 4, 5, 7, 11, and so on) and political rights (Article 5 and 6). Even nation-states with a very generous policy toward newcomers such as the U.S.A. restricted the political rights of non-citizens and naturalized citizens. Therefore, this law guaranteed unrestricted citizenship to overseas Chinese when they returned to China. Article 3 confirmed that. Furthermore, the PRC granted educational and financial privileges to returned overseas Chinese. In this respect, I suggest that the PRC regarded overseas Chinese as a kind of Chinese citizen regardless of their citizenship status after 1978, although the PRC did not renounce the principle of single citizenship and legally distinguished Chinese nationals abroad from ethnic Chinese with foreign citizenship. Beijing continuously maintained a non-interventionist policy toward overseas Chinese with foreign citizenship and did not criticize foreign countries’ policies toward them. However, the PRC criticized the Indonesian government for the violence against ethnic 124

Chinese and the Indonesian government’s negligence of them in the May 1998 riot and rape incidents in Indonesia (Bolt 2000: 62). This shows that the PRC is willing to protect overseas Chinese at the risk of diplomatic conflicts with neighboring countries. It is inferred that overseas Chinese, who are playing major roles in the PRC’s economic development, requested the government to protect them through their personal and organizational connections. The PRC government also cannot neglect their request, because it continues to need financial and technological supports from overseas Chinese. On the one hand, the PRC granted to overseas Chinese benefits and rights that other foreigners could not enjoy by law. On the other hand, the PRC authorities tacitly gave preferential treatment to overseas Chinese. As I mentioned previously, the PRC legal system delegated discretionary power to relevant authorities instead of codifying legal provisions in detail (Tanner 1999). Thus, the PRC authorities tacitly privileged overseas Chinese through the substantial discretionary power whenever they wanted to. The notably high ratio of investment by overseas Chinese to the total foreign investment in China indirectly evidenced not only codified but also uncodified preferential treatment of overseas Chinese by the PRC. The majority of Foreign Direct Investment (FDI) came from areas with large ethnic Chinese populations (Hong Kong, Macau, Taiwan, Malaysia, the Philippines, Singapore and Thailand). According to the Chinese official news agency Xinhuashe [New China News Agency], investment by overseas Chinese and residents of Hong Kong, Macao and Taiwan amounted to thirty billion dollars and accounted for over seventy percent of the total foreign investment in China in 1989. Xinhuashe also reported that investments by ethnic Chinese accounted for over seventy percent in 1999 (Bolt 2000: 64).

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4.2. Introduction of the

“Permanent Residence System

(or

Denizenship)”: The PRC adopted the “Law on the Entry and Exit of Foreigners’ in 1985 and “Rules Governing the Implementation of the Law on the Entry and Exit of Foreigners’ in 1986. The Law and Rules for the first time in Chinese history adopted a permanent residence system. Article 9 of the law stated: Foreigners wishing to reside in China permanently shall, in applying for visas, present residence confirmation forms, which may be obtained upon application from the public security organs at the intended places of residence (China 1985). The Rules allocated Visa D to foreigners who were to reside permanently in China. The goal of adopting a permanent residence system was mainly to entice foreign investors and experts. Thus, the law defined conditions for permanent residency as the following: Foreigners who, in compliance with Chinese law, wish to have long-term residence in China for the purpose of investing in China or engaging in cooperative projects with Chinese enterprises or institutions in the economic, scientific-technological and cultural fields or for other purposes may be granted the status of long-term or permanent residence upon approval by the competent authorities of the Chinese Government (Article 14) (China 1985). However, as of November 27, 2001, the PRC government had granted permanent residence to only 67 foreigners since 1986, although some 600,000 foreign nationals worked in China (Anonymous 2001c). This shows that the PRC did not actively use the permanent residence system before 2001. I suggest that there were two major reasons: (1) the PRC already provided preferential treatment for overseas Chinese with foreign citizenship. According to a diplomatic official in charge of Chinese affairs that I interview in South Korea, the overseas Chinese used to enjoy free entry and exit, and the PRC was willing to renew their visa status before improving the “permanent residence system” in 2001, and (2) the PRC did not have an urgent need for people with special

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expertise because it promoted labor-intensive industries at the beginning of the economic reform. The PRC increasingly made an effort to entice high-technological expertise after it became a formal member of the WTO on December 11, 2001. However, after the PRC became a member of the WTO, the PRC started to more actively use a green card system to attract foreign investors, experts, and technicians of non-Chinese ethnicity from 2001. Renmin Ribao [People’s Daily] reported that Tianjin granted green cards to Koreans, Japanese, and Malaysian in February 2001 (Anonymous 2001d). Just a few days before the PRC entered the WTO, Zhongguo Ribao [China Daily] reported that the PRC reformed (and planned to reform further) entry and exit procedures to provide a systematic and transparent permanent residence system: One of the series of reforms on exit and entry procedures recently announced by the Ministry of Public Security is the new initiative aimed at attracting more professional people from abroad to fill the urgent need for people with special expertise, especially after China becomes a formal member of the World Trade Organization on December 11. Zhang Yindi, deputy director of the Bureau of Exit Entry Administration under the Ministry of Public Security (MPS), told China Daily during an exclusive interview yesterday… Nowadays, in most cases, the foreign residents in China want to apply for from one to five years’ permanent resident status instead of applying for Chinese nationality, she said… To fit in with the new measures, China will amend its laws on nationality and exit and entry procedures during the 10th Five-Year Plan period (2001-05), she disclosed (Anonymous 2001a). China uses denizenship to promote high-technological industries by enticing both foreigners of non-Chinese ethnicity and overseas ethnic Chinese with high-technological expertise or financial abilities. Therefore, Xinhuashe carried an article titled “More Foreigners to Get Permanent Residence Permits in China” on November 27, 2001: Up to now, only 67 foreigners have been given the permits to stay permanently in China since 1989, said sources from the Chinese Ministry of Public Security. According to the same sources, China will borrow the experience from international common practice and build a regular system of giving more qualified foreigners permits to stay in this country permanently or be allowed to enter China without a

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visa before 2003 (Anonymous 2001c). Many scholars have linked denizenship to international migration and the human rights movements (Jacobson 1997; Joppke 1998; Kymlicka 1995; Soysal 1994). Denizenship was usually granted to long term resident foreign workers according to criteria such as length of stay, labor market participation, and cultural integration in the West (Castles and Davidson 2000: 94). However, denizenship would be granted to upper foreigners with technological skills and capital regardless of length of their residence in China. Introduction of denizenship by China was a strategy to increase international competitiveness. In addition, the main target of introducing denizenship was ethnic Chinese with foreign citizenship. This move was not undertaken as a result of an assimilationist, inclusive national identity, nor was the result of international migration, but was instead a result of economic interests.

Rogers Brubaker (1992) in Citizenship and Nationhood in France and Germany argues that citizenship is not a politics of interest but a politics of identity. However, I claim that citizenship is not a politics of identity but a politics of interest in China.

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CHAPTER SIX VI. Legal Definition of Subjectship/Citizenship in South Korea:60 The hojeok [household register], international legal practice, and the Japanese modernization experiences deeply affected the subjectship policy of the Joseon court in the late 19th century and the early 20th century (Kim 1988). Conscription, overpopulation, and unemployment affected the citizenship policy of the ROK until the 1980s. Since the 1990s globalization, the changes in the labor market, diplomatic relations, and social movements (domestic and international) directly influenced the citizenship policy of South Korea.

1. Subjectship in Joseon (1392~1910): During the Joseon Dynasty (1392~1910), there was no law that particularly defined its subjectship. However, the government had registered households every three years since the early Joseon Dynasty.61 The hojeok [household register] was a kind of census, which listed households in a certain area. The hojeok also listed name, sex, birth, and family relations of members of each household based on patrilineal jus sanguinis. The Joseon court used this register for taxation, conscription, and domestic migration control (Hangukjeongsinmunhwayeongguwon 2002). Thus, it was supposed that Joseon also regarded persons on the household register as its subjects, although the Joseon court enacted no particular provision on what that entailed. Indeed, there were only a few migrations during the Joseon period, although people of Jurchen, Chinese, and Japanese

60

I owe Dr. Chulwoo Lee a debt of gratitude for helping me complete this chapter. He supplied to me a great amount of valuable materials regarding nationality policy in Korea. 61 The household registration system was originally imported from China to Korea about 2000 years ago.

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heritage sometimes immigrated and became naturalized. Joseon seemed to welcome foreigners who wanted to settle down in the Joseon territory and to become naturalized. According to Gyeongguk Daejeon [the collective code of laws in Joseon], the Joseon court exempted naturalized foreigners from taxation for 3 years and from conscription for 10 years (Jeong 1988: 648). These exemptions were used as rewards only for good sons and loyal subjects. On the other hand, emigration was prohibited by the Joseon court. The Joseon court sentenced convicted transgressors to death. In addition, the Qing court prohibited nonManchus from entering southern Manchuria near Changbai Mountain in 1677 and transferred Korean trespassers to the Joseon court, which beheaded them. The Joseon court welcomed immigrants but prohibited emigration in order to ensure tax resources and to secure the border. It was not an unusual practice in pre-modern times, when population was one of the most important resources of state power. Qing lifted the ban on migration to south Manchuria in 1875. The Joseon court also opened the door to nationals from foreign countries after it concluded the first modern diplomatic treaty with Japan in 1876. In addition, the Joseon court regulated diplomatic relations with the U.S., Britain, and Germany in 1882. As a result, not a few foreigners legally resided in Korea, and many Koreans migrated to foreign countries either legally or illegally. Subsequently, Joseon began to participate in international diplomacy among nationstates and began to have disputes with other nation-states over nationality. The Joseon court stipulated regulations regarding the subjectship issue although Joseon did not enact a nationality law until it was annexed to Japan in 1910. The Joseon court started the

Joseon Dynasty improved this system (Hangukjeongsinmunhwayeongguwon 2002).

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Gabogyeonjang [1894 Political Reform] and introduced modern legal, political, and education systems in 1894. The 1894 Reform pledged to modernize Korea and obliterated traditional class distinctions, slavery, and prevention of widow remarriage. The Joseon court promulgated the Hogujosagyuchik [regulation on the household registration] on September 1, 1896, and took a nationwide census. The Joseon court removed the item of hereditary rank (such as gentry, commoner, slave, and so on) in the household registry in order to obliterate traditional class distinction by birth (Hangukjeongsinmunhwayeongguwon 2002). The Joseon court gave subjectship only to the persons who were listed on the household register. For example, only persons listed on the household register could possess, buy, and sell land, forest, and mines (Jeong 1988: 650). In addition, the Joseon court was not willing to allow its subjects to renounce Korean subjectship: it enacted a law forbidding this without its permit in 1898.62 When Koreans who acquired Russian subjectship claimed extraterritorial rights in Joseon in 1906, the Joseon court did not allow extraterritorial rights and regarded the Koreans of Russian subjectship as its subjects. The Joseon court announced that it would not recognize forfeiture of Korean subjectship by its subjects when they were naturalized by foreign countries without its permission in May 1908. The Joseon court substituted the Minjeokbeop [law of subject registration] with the Hogujosagyuchik [regulation on the household registration] in 1909 under the control of Japan. Thus, Joseon court adopted a household registration system similar to the Japanese household system. The household registration system transformed a kind of census system to a legal system defining legal

62

The Joseon court renamed the country Daehanjeguk [the Great Korean Empire] in 1897. However, Daehanjeguk is regarded as the continuation of Joseon.

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relations based on households (Hangukjeongsinmunhwayeongguwon 2002). Thus, this law stipulated some provisions regarding subjectship. Patrilineal jus sanguinis was the primary principle to determine the boundary of the Joseon subjectship because the Minjeokbeop (and the former Hogujosagyuchik) was on the same principle (Sakamoto 1997). However, children whose parents were unknown and found in Joseon were regarded as Korean subjects. Joseon registered ethnic Koreans with foreign citizenship on the subject register when they returned to Joseon (Jeong 1988: 150-152). Thus, Joseon seemed to recognize dual citizenship. As I previously mentioned, Joseon court welcomed foreigners who wanted to be naturalized based on jus domicili and jus soli. Why did the Joseon court come to adopt jus sanguinis? First, the Joseon court referred to both the Japanese and the Chinese experiences of adopting jus sanguinis when it introduced modern legal and citizenship system. Particularly, Japan controlled Joseon after the Sino-Japanese War (1894-5) and the Russo-Japanese War (1904-5). It was certain that the Japanese legal system positively affected Joseon to adopt jus sanguinis. Second, the household registration system was more compatible to jus sanguinis than jus soli. Thus, adopting jus sanguinis was less costly than adopting jus soli. Lastly, the Joseon court could claim sovereignty over ethnic Koreans with foreign citizenship (or subjectship) by adopting jus sanguinis. The Joseon court’s treatment of ethnic Koreans with Russian subjectship was an example of this. Therefore, I argue that jus sanguinis was the direct product of traditional legal practice and political considerations of sovereignty in Joseon. Furthermore, I argue that jus sanguinis was not the result of ethnic nationalism. Ethnic nationalism just formed but was not popular in the late Joseon. The late-Joseon court was under the control either of proChinese group, or of pro-Russian group, or of pro-Japanese group, and not able to 132

actively promote ethnic nationalism. Ethnic nationalism was promoted by unofficial intellectuals. For the Joseon court, political and financial considerations were more urgent than culture.

2. Subjectship under the Japanese Colonialism (1910~1945): Joseon was annexed to Japan in 1910. After the Japanese annexation of Joseon, Koreans became Japanese subjects regardless of their residence.63 The minjeok [subject register] implemented in 1909 by the Empire of Korea was the most comprehensive record of the Korean population at the time. This register was used by the Japanese government to identify those who used to be subjects of the Empire of Korea and their offspring. Japan had an experience that redefined its citizens based on the traditional household register (koseki in Japanese), which was basically the same as the minjeok of Joseon. Thus, Japan had no legal and practical problems in redefining Koreans as Japanese subjects exploiting the minjeok of Joseon. Even after the Japanese authority promulgated new regulations on household registration on July 1, 1923, minjeok was still valid and the Japanese authority utilized it. However, the Japanese registered Korean subjects on a separate register and classified Koreans into a different legal status from that of the metropolitan Japanese during the whole Japanese colonial period (1910~1945). Thus, ethnic Koreans could enter on the Japanese household register only through marriage, adoption, and recognition. Patrilineal jus sanguinis was the principle of the household register. Thus, a Japanese wife of a Korean man automatically entered on the

63

Some scholars argue that Japan committed serious irregularities in the process leading to the Annexation Treaty of 1910. Therefore, the Japanese annexation of Joseon was null and void and Koreans were legally subjects of Joseon from 1910 to 1945 (Lee 2001a; Yi 1995). Although there are grounds for this argument, Koreans did not have a de facto government in that time. Thus, I regard Koreans under the Japanese

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Korean household register, while a Korean wife of a Japanese man automatically entered on Japanese household register. A Japanese person who was recognized by a Korean father automatically entered the Korean household register (Jeong 1988). The Japanese government legally discriminated against the people on the Korean household register as opposed to the metropolitan Japanese and denied full citizenship to Koreans. The Japanese government did not grant constitutional rights such as the right to elect legislative representatives to Koreans (Lee 2001a). In this sense, Koreans were not citizens but subjects of Japan. As Koreans became subjects of Japan, the Japanese nationality law should have applied to Koreans. However, Japan discriminated against Koreans as opposed to the metropolitan Japanese in relation to nationality and Korean subjects could not renounce Japanese subjectship. According to Japanese nationality law, Japanese citizens would automatically lose Japanese citizenship if they acquired foreign citizenship. But Korean subjects could not renounce Japanese subjectship even if they acquired foreign citizenship (Jeong 1988; Lee 1999). Japan intended to put all ethnic Koreans under Japanese jurisdiction because numerous Koreans with foreign citizenship were engaged in the Korean independence movement (Lee 1999; No 1997a). Japanese colonialism affected the definition of Korean citizenship after the birth of the ROK in both direct and indirect ways. In a direct way, the Japanese legal practice affected the legal definition of Korean citizenship: (1) The Japanese kept the separate household register of ethnic Koreans and legally fixed the ethnic definition of South Koreans based on patrilineal jus sanguinis. This register of Korean household was used in

colonialism as Japanese subjects in this dissertation.

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identifying the Korean citizenry after Japanese colonialism ended in 1945; and (2) Japanese legal practice (and legal education) accustomed South Korean elites to the Japanese legal system, in which nationality law was based on patrilineal jus sanguinis. In an indirect way, the Japanese discrimination against Koreans affected the definition of Korean citizenship after 1948 by promoting an ethnic-centered national identity among South Korean elite and people. An ethnic-centered national identity resulted in an exclusionary citizenship policy toward ethnic others by the ROK.

3. Citizenship under the U.S. Military Government Occupation (1945. 8. 15~1948. 8. 15): After the Japanese Empire surrendered on August 15, 1945, the U.S. Military Government ruled South Korea until the ROK was founded on August 15, 1948.64 The U.S. Military Government did not have the legal right to define the boundary of Korean citizenship. However, the U.S. Military Government on occasion had to define who Koreans were. First, the U.S. Military Government had to confiscate Japanese property in Korea and to send Japanese people back to Japan. Second, when the Japanese colonialism ended in 1945, about 4 million Koreans were outside Korean territory, the number of whom reached 1/6 of the whole Korean population. Shortly after the independence of Korea, about 2 million Koreans abroad returned to Korea. Lastly, the Government had to administrate elections to found the legal government in South Korea. On those occasions, the U.S. Military Government had to define who Koreans were.

64

It is not easy to answer if Korean citizenship legally existed between the surrender of the Japanese Empire in 1945 and the foundation of the ROK in 1948. However, I presume that period as a period of foundation of the ROK. Thus, I presume that Korean citizens existed legally after 1945, who were distinguished from Japanese citizens.

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First, when the U.S. Military Government promulgated an order regarding “enemy property” and prohibited disposition of Japanese property on September 25, 1945, it sorted out holders of enemy property using the household register. Thus, the U.S. Military Government regarded all people listed on the Korean household register as South Korean citizens regardless of their ethnicity. For example, the property of the ethnic Japanese who were listed on the Korean household register through marriage was not was treated as enemy property, while property of the ethnic Koreans who were entered on the Japanese household register through marriage was seen as enemy property. Second, the U.S. Military Government applied the same principle to returned Koreans and regarded all of them as Korean nationals. Third, in repatriating Japanese in 1946, the U.S. Military Government regarded ethnicity as an important criterion. It ordered even Japanese spouses of Korean men who had been entered on the Korean household register to leave Korea unless they had a permit from the U.S. Military Government. Lastly, when the U.S. Military Government promulgated the “Law regarding election of the Constituent Assembly legislators’ on March 22, 1948, it again changed the criteria a little. According to the new rules, South Korean gungmin (nationals or citizens) who would be given the right to vote were defined as the following: (1) those who were recorded on the Korean household register, (2) those who had been born with Joseonin (Korean) parents, and (3) those whose fathers were Joseonin and not nationals or citizens of other states (Jeong 1988). The U.S. Military Government did not have a consistent set of criteria. However, it referred to the household register and increasingly adopted patrilineal jus sanguinis upon which the household register was based. Although the U.S. Military Government adopted neither ethnic nationalism nor patriarchy, it adopted patrilineal jus sanguinis. This demonstrated that the household register deeply affected the definition of 136

South Korean citizenship under the U.S. Military Government. The South Korean Interim Government, the governmental organization of Koreans under the auspices of the U.S. Military Government, enacted Provisional Rules on Nationality on May 11, 1948 (see Appendix). The Provisional Rules also implicitly recognized the significance of the household register in defining Korean citizenship. This was because only the members of the Korean households existed but Korean nationals did not under Japanese colonialism. It was no accident that the Provisional Rules also adopted patrilineal jus sanguinis as a primary principle (Article 2), which the household register adopted. Considering the fact that many patriotic Koreans had acquired foreign citizenship under Japanese colonial rule, Article 5 of the Provisional Rules made it easy for ethnic Koreans to regain their Korean citizenship. The Provisional Rules were valid until the Korean Nationality Law was enacted by the ROK in December 1948 because the first Constitution of the ROK recognized the continuing effect of existing laws that were not in conflict with the Constitution. In addition, the Provisional Rules had the most immediate bearing on the Nationality Law.

4. The Legal Definition of Citizenship in the Republic of Korea before 1990s: Under the mandate of Article 3 of the ROK’s Constitution of 1948, the National Assembly enacted the Nationality Law on December 20, 1948 (see Appendix). The 1948 Nationality Law adopted the following principles: jus sanguinis, inequality between genders, and non-recognition of dual citizenship. The Nationality Law was partly amended in 1962, 1963, and 1976. Those amendments were made in order more strictly to prevent Korean citizens from maintaining dual citizenship, to remove restrictions on 137

the naturalized person’s rights, and to change the conditions and procedures for regaining Korean citizenship. Although the Law was partly amended 3 times, the main features remained intact until 1997, when it was wholly revised to accommodate greater equality between genders. The 1948 Nationality Law adopted patrilineal jus sanguinis as the primary principle just as the Chinese nationality laws did before 1949. Articles 2 and 3 concerned the acquisition of Korean citizenship, through birth and through marriage, respectively. 65 Article 2 and Paragraph 1 of Article 3 clearly adopted patrilineal jus sanguinis. Thus, the Nationality Law discriminated against Korean women’s children as opposed to Korean men’s children. While Korean men’s children acquired Korean citizenship at birth regardless of their mothers’ citizenship, children born to Korean women and foreign men could not. Additionally, a foreigner who was the wife of a Korean national could acquire Korean citizenship through marriage, while a male alien could not acquire Korean citizenship through marriage under the 1948 Nationality Law. The Nationality Law also adopted matrilineal jus sanguinis and jus soli as supplementary principles. Despite the contrast between the Chinese state-centered, inclusive national identity and the Korean ethnic-centered, exclusionary national identity, the 1929 Chinese Nationality Law and the 1948 Korean Nationality Law were very similar in their provisions regarding acquisition of citizenship through birth and marriage.66 Different national identities made differences

65

Some scholars argue that the Nationality Law contained a serious defect from the beginning because most Koreans at that time had been born before the foundation of the ROK on August 15, 1948. Thus, they could not satisfy the conditions stipulated by Article 2 of the Law. However, the defect did not come out of mistake. Yi In, then minister of Justice, explained, “We had a state before August 15… Both spiritually and legally we have had nationality since long time ago. From this viewpoint, we enacted this Law.” (Jeong 1988: 661-662) The ROK government assumed that Korean statehood did not cease under Japanese colonialism and there was legal continuity between the ROK and the preceding state. 66 Japan also adopted patrilineal jus sanguinis and children born to Japanese women and foreign men could not acquire Japanese nationality at birth until 1984 (Seok 1997: 62).

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in nationality law only when these differences were compatible with political and economic interests. This suggests that national identity was not the primary factor but the secondary factor to determine the legal definition of citizenship. The ROK added two provisions in 1962: (1) the naturalized persons must discard foreign citizenship within 6 months, and (2) overseas Koreans can regain Korean citizenship without a domicile in Korea by the recommendation of the Nationality Restoration Committee. The 1963 amendment removed Article 10 regarding restrictions of the naturalized people’s rights and added a provision that the naturalized person who did not discard foreign citizenship within 6 months would lose Korean citizenship. The 1976 amendment annulled the Nationality Restoration Committee and made the Ministry of Justice take charge of citizenship restoration affairs. Those amendments strengthened non-recognition of dual citizenship, eased the procedure of citizenship restoration by ethnic Koreans, and removed some restrictions on the naturalized. However, they did not affect the main features of the 1948 Nationality Law.

4.1 Naturalization: Although the ROK promoted an ethnic-centered, exclusivist national identity and adopted jus sanguinis, the naturalization of foreigners who settled in Korea seems to have been a rather simple process: (1) Submission of an application; (2) The Ministry of the Justice’s approval; and (3) The applicant’s publishing the approval notice in the State Gazette. The Korean naturalization procedure under the 1948 Nationality Law seemed simpler than the Chinese counterpart under the 1929 Chinese Nationality Law. For the

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approval of the Ministry of Justice, the foreigners fulfilled the conditions specified in Article 5. The conditions are very similar to the conditions for naturalization that the 1929 Chinese Nationality Law defined. However, the ROK did not grant citizenship to all persons who met the conditions. Ethnocentrism of the government officials raised the barrier against naturalization applicants. Joseonilbo [Chosun Daily News] reported that many foreigners had given up on naturalization because of strong Korean ethnic-centered nationalism since the founding of the ROK (Jeong and Yi 2000). Indeed, every year the ROK naturalized only fewer than 10 foreigners until 1985. And only total 528 foreigners were naturalized for the 10-year period between 1986 and 1995 (Ministry of Justice 2002). Furthermore, almost 70% of the naturalized persons were Chinese husbands of Korean women, who were second, third, or fourth generation immigrants, and not culturally and racially distinguishable from Koreans.

67

In addition, the Korean

naturalization policy under the 1948 Nationality Law never adopted jus soli and jus domicili and never privileged second (or even third) generation immigrants, while the 1929 Chinese Nationality Law adopted both jus soli and jus domicili in naturalizing foreign nationals. In other words, the ROC exempted second generation immigrants from some of requirements for naturalization, while the ROK did not. Thus, second or third generation immigrants also could not easily acquire Korean citizenship until 1997. The 1948 Korean Nationality Law imposed some restrictions of civil and political rights only on naturalized persons (Article 10) but not on an ethnic Korean who regained her or his Korean citizenship. To the contrary, the ROC imposed the same restrictions on

67

Under the 1948 Nationality Law, wives of Korean nationals did not need to go through naturalization in order to acquire Korean nationality until 1997. Those wives automatically acquired Korean nationality. Thus, the number of the naturalized did not include the number of wives of Korean nationals.

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ethnic Chinese who restored Chinese citizenship as on naturalized persons. In addition, the 1929 Chinese Nationality Law usually removed the restrictions on naturalized persons who had resided more than 10 years in China. However, the ROK imposed restrictions on naturalized persons regardless of residence period although the ROK removed these restrictions in 1963. To sum up, citizenship policy toward ethnic others of the ROK was more exclusionary than that of the ROC. This might be regarded as the result of an ethnic-centered, exclusionist Korean national identity.

4.2. Discrimination against Women: The 1948 Korean Nationality Law contained some discriminatory provisions against women, just as the 1929 Chinese Nationality Law also did. Foreigners who were husbands of Korean women could acquire Korean citizenship only through the naturalization procedure although Article 6 reduced the domicile requirement for foreign husbands of Korean women. Furthermore, Article 8 and Article 9 did not recognize foreign married women’s right to choose their citizenship independently from their husbands. This discrimination against women was the direct result of patrilineal jus sanguinis and remained in effect until 1997. Although culturalists may argue that adopting patrilineal jus sanguinis was the result of traditional patriarchism, I argue that a culturalist explanation of patrilineal jus sanguinis is partial. First, there was an administrative reason. The ROK maintained patrilineal jus sanguinis because it was helpful in reducing the number of children with dual citizenship whose parents had different citizenship (Seok 1997). As mentioned above, the ROK was so eager to reduce the number of dual citizenship holders that it twice amended its nationality law to prevent dual citizenship. 141

Second, and more importantly, there was a politico-economic reason. Today’s patriarchy in Korea is not the result of traditional values but the result of capitalism. In general, scholars of women’s studies pointed out that capitalism maintained patriarchy in various ways (Hartmann 1981; Walby 1990). One such scholar, John Lie, elaborates on the development of patriarchal capitalism in Korea: Peripheral industrialization entails enormous obstacles. By peripheral industrialization, I refer to the process of post-colonial industrialization exemplified in the 1980s by South Korea and Taiwan… In addition to dismantling the bonds of dependency, late industrializers cannot exploit external sources. External surplus extraction is impossible in the early, and crucial, stages of peripheral industrialization. Hence, peripheral industrialization demands greater domestic surplus extraction… there is a need for intensified hierarchization of labor force… Peripheral industrialization is gendered; patriarchal capitalism entails gender differentiation and exploitation (Lie 1996: 36-49). The case of the Democratic People’s ROK (hereafter, North Korea or DPRK) supports this argument. Indeed, the DPRK removed patriarchal elements in their laws after its founding in 1948, although it shared the same patriarchal tradition with the ROK. The DPRK adopted bilateral jus sanguinis when it enacted its first nationality law in 1963 (Gim, Gim, Go, and Gang 2000: 33). Cultural factors cannot explain those differences. I will elaborate on this point in dealing with the 1997 amendment. Finally, it is more likely that a patriarchal legal system such as patrilineal jus sanguinis maintained patriarchism rather than vice versa. The contemporary Korean history demonstrated that dramatic legal, political, and economic changes resulted in dramatic cultural changes rather than the reverse. Indeed, the Joseon court legally obliterated the traditional class distinction system and prevention of widow remarriage that were deeply rooted in the traditional Korean society in 1894. In other words, the Joseon court reformed Korean society, eradicating traditional values and identities. Since

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the Reform, traditional class identity and prejudice against widow remarriage have weakened and do not exist today in Korea (Hangukjeongsinmunhwayeongguwon 2002). Changes of the legal system resulted in dramatic cultural changes in Korea (Kim 1988).

4.3. Policy toward Residents of Chinese Ethnicity: The ROK’s policy toward Hanhwa (or Hanhua in Chinese: Chinese in Korea) clearly demonstrates its exclusionist policy toward ethnic others. The majority of Hanhwa lived in the more industrialized northern half of the Korean Peninsula under Japanese colonialism. When Korea was liberated and divided, only fewer than 15,000 Chinese immigrants were living in South Korea. After the Chinese Revolution and the Korean War, there were about 18,000 ethnic Chinese in South Korea in 1952. Subsequently, the Chinese population reached 32,400 exclusively through natural increase in the early 1970s. The Chinese population decreased to 22,000 in the late 1980s not through naturalization but through emigration, but until 1990 ethnic Chinese were the overwhelming majority of long term foreign residents who continuously resided with their spouses and offspring and had their living bases in the ROK (Lee 2001a). First, the ROK’s citizenship policy toward Hanhwa was very exclusionary until the 1990s. Every year, fewer than 10 Hanhwa acquired Korean citizenship until 1985 (Ministry of Justice 2002). Although most of Hanhwa were third or fourth generation immigrants, the 1948 Nationality Law by not adopting jus soli or jus domicili did not easily grant Korean citizenship to them. Patrilineal jus sanguinis also was a barrier against Hanhwa. Intermarriage reached such a level that 30 percent of the mothers of new-born Hanhwa children were Korean in the mid-1980s. Many Hanhwa children were three-quarters Korean since both their mothers and grandmothers were Korean. They 143

grew up speaking Korean, eating Korean food, having Korean relatives (Choi 2000). Yet those Hanhwa could not acquire Korean citizenship until the bilateral jus sanguinis was introduced by the 1997 Nationality Law. Naturalization was the only option for Hanhwa seeking to be Korean nationals. However, as mentioned above, it was prohibitively difficult to obtain naturalization approval. Most of Hanhwa remained Chinese nationals.68 Second, the ROK granted only limited rights to Hanhwa as permanent resident foreigners. Hanhwa held the F-2 visa that was granted to “persons who continuously have their domiciles and living bases in the ROK and their spouses and children” (Korea 2002b). Hanhwa could legally hold jobs with the F-2 visa, which they had to renew every two years until 1994 (Korea 2002a; 2002b). This was unparalleled by any other visa status held by foreigners in terms of the duration of sojourn and allowed scope of activity. However, they were excluded from certain job categories. They could not be civil servants or directors of public agencies. Furthermore, they could not take the bar examination or the qualification examination for certified public accountants. Thus, they could not become lawyers or public accountants (Lee 2001a). In addition, Hanhwa had to renew their F-2 visas every two years and apply for reentry when traveling abroad until 1994. Considering that Hanhwa had lived in the ROK for generations, their legal status was quite unstable. The exclusionary immigration policy did not consider the fact that Hanhwa had taken root into Korean society. Indeed, the ROK excluded even the 200 Hanhwa who had fought for the ROK during the Korean War from not only political

68

Hanhwa were not citizens of the PRC but citizens of the ROC (or Taiwan) although most of them had no familial connection with the ROC. This was because the ROK did not have diplomatic relation with the PRC until 1992.

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rights but also social welfare. Those veteran Hanhwa could not participate in local or national elections nor share in the benefits of medical services and pensions (Yang 1999; 2000). Third, the ROK never paid attention to Hanhwa education. The ROK did not support ethnic education by Hanhwa. At the same time, the ROK did not actively assimilate Hanhwa through education. Hanhwa ran 3 kindergartens, 50 elementary schools and 5 high schools in 1974, whose education programs were closely in line with those of schools in Taiwan (Bak 1981b). The ROK did not legally recognize those Hanhwa schools as educational institutions and excluded them from subsidies until 1998. Yet the ROK, at the same time, did not force Hanhwa to enroll in compulsory education for Koreans. Indeed, the ROK always regarded education in Hanhwa schools as on par with education in Korean schools although Hanhwa schools were outside of the boundary of Korean education laws. For instance, Korean universities admitted graduates of Hanhwa high schools. Most Hanhwa students went to Hanhwa elementary and high schools, where Hanhwa maintained their Chinese identity. Education in Hanhwa schools made Hanhwa identify themselves as Chinese nationals, who were acculturated to Korean society. According to Sheena Choi (2000), 96% of Hanhwa students in a Hanhwa school in Seoul identified themselves as Chinese even in 1998 although they were more comfortable with the Korean language and culture than with Chinese. Lastly, after its founding in 1948, the ROK enacted unfavorable laws and policies to restrict Chinese residents’ economic activities. First, the ROK government carried out monetary reforms in 1952 and in 1962. These monetary reforms greatly damaged the economic power of Chinese residents who had kept their savings in the banks (Gim et al. 2000). Second, the ROK promulgated the Foreigners’ Land Law in 1961 and prohibited 145

foreign ownership of land without permission. Hanhwa business persons had to sell their commercial real estate or maintain it under the names of Koreans, thereby risking the loss of their ownership and consequent eviction from their land. Although the ROK revised the law and relaxed the prohibition in 1968, Hanhwa still could not own more than 660 square meters of residential land and more than 185 square meters of commercial property without government permission (Lee 2001a). Third, the allocation of credit by the ROK government under municipal development planning discriminated against Hanhwa in the 1960s and the 1970s. Lastly, unfavorable taxation weakened Chinese business in South Korea. While the ROK government unofficially reduced taxes on Korean businesses to promote economic activities, it did not on Chinese businesses. Hanhwa played a very important role in South Korean economy in the late 1940s. Their capital made up 70 percent of the total capital invested in the China trade, which accounted for 80 percent of total trade by the ROK (Bak 1981b: 60). Although the Chinese Revolution, the Korean War, and the Cold War disconnected South Korea’s ties with Mainland China, Hanhwa remained a powerful group in the South Korean economy until 1961. However, those unfavorable policies made Chinese businesses in South Korea wither, and the ROK became the only industrialized country without a Chinatown (Yang 1999). As a result, many Hanhwa left Korea for Taiwan or migrated to North America in the 1970s, while many Hanhwa women acquired Korean citizenship through marriage with Korean men. The population of Hanhwa, which was never very large from the beginning, diminished over the last few decades of the century despite natural growth. Of course, ethnic nationalism is helpful in accounting for the exclusionist citizenship policy of the ROK toward Hanhwa. Unlike Thailand and Indonesia, South Korea did not 146

endeavor to assimilate them to Korean culture and society through education. However, I want to point out that the ROK government was seriously concerned about economic power of Hanhwa. Hanhwa had accumulated a great amount of capital through commerce in 1920s even under Japanese colonialism. For example, the richest Hanhwa paid an overwhelmingly greater amount of tax than did the richest Korean or Japanese in Korea in 1922. Hanhwa controlled Korean economy through trade and commerce until 1950s. The ROK government wanted to control the economic power of Hanhwa by all the methods and avenues that it could exploit. One of the methods and revenues was that the ROK government excluded Hanhwa from full citizenship. However, the ROK started to change the policy in the 1990s regardless of its still dominant ethnic nationalism (Yang 1999). This change in citizenship policy occurred because (1) the economic power of Hanhwa was no longer a menace to Korean businesses, (2) China became an important diplomatic and economic partner of the ROK, (3) international Hwagyo capital became necessary to the Korean economy, and (4) Korean NGOs got more powerful and got interested in Hanhwa’s rights in the 1990s. I will elaborate on these points in dealing with the citizenship policy of the ROK in the 1990s.

4.4. Policy toward Ethnic Koreans Abroad and Dual Citizenship: Ethnic Koreans abroad were divided into two different groups,: (1) a group most of whose members resided in communist countries (such as the Soviet Union and the PRC) or had citizenship of communist countries (most Koreans in Japan maintained citizenship of the DPRK), which migrated before the founding of the ROK in 1948; and (2) the other group most of whose members resided in Western countries such as the U.S.A, which migrated after the founding of the ROK. The two groups had different historical 147

backgrounds of immigration and, at the same time, the ROK had different policies toward them. This difference was because of various political reasons related to the Cold War and the confrontation between North and South Koreas. When the ROK was founded in 1948, around 2 million Koreans returned to both South Korea and North Korea but around 2 million Koreans continued to reside abroad (one million in China, 400,000 in the USSR, and 600,000 in Japan). However, because of the aftermath of the Korean War and the Cold War, the ROK had no diplomatic relations with the PRC or the USSR and had no contact with ethnic Koreans in those countries. At the same time, most ethnic Koreans in Japan acquired DPRK citizenship voluntarily. The ROK government defined itself as the only legal Korean government on the Korean Peninsula and considered all North Koreans as nationals of the ROK in the Constitution and the Nationality Law. The ROK maintained this regardless of how many states recognized the DPRK. Thus, the ROK endeavored to make ethnic Koreans in Japan change their citizenship from the DPRK to that of the ROK (Gim 1998). By doing so, the ROK elites wanted to prove the illegitimacy of the communist DPRK. In the same context, the ROK regarded ethnic Koreans who resided in communist countries as more or less South Korean nationals, who the ROK could temporarily not protect. Thus, the ROK issued travel certificates as substitutes for Korean passports whenever ethnic Koreans from communist countries tried to enter South Korea in the 1980s (Lee 2001a). Until the 1980s, the ROK had an inclusive citizenship policy toward ethnic Koreans with citizenship of communist countries. On the other hand, the ROK’s policy toward ethnic Koreans with Western citizenship was rather exclusionary. In the 1960s the ROK promoted emigration of Koreans in order to reduce population and unemployment. Thereafter, Koreans migrated 148

to European countries, North and South American countries, Australia, and so on (Hanminjoknetwok 2002). In 1999 over 2 million ethnic Koreans resided in the USA, 111,041 in Canada, and about 60,000 in Western European countries (Go 2000). First, the ROK, which maintained strong ethnic-centered nationalism, encouraged those ethnic Koreans to become naturalized in their host states (Gim 1998). As previously mentioned, the ROK did not recognize dual citizenship, and ethnic Koreans who acquired foreign citizenship automatically lost their Korean citizenship. As a result, the ROK excluded most ethnic Koreans who migrated to Western countries. Second, the ROK encouraged ethnic Korean abroad to be culturally assimilated to the host countries. For example, the ROK government did not actively promote ethnic education among ethnic Koreans abroad. Lastly, the ROK did not grant voting rights to Korean nationals overseas from the early 1970s. Indeed, despite its strong emphasis on ethnic-centered national identity and jus sanguinis, the ROK continued on excluding ethnic Koreans abroad from Korean citizenship until the 1990s. The exclusionist policy of the ROK toward ethnic Koreans abroad can mainly be explained by the ROK’s political concerns (B. Gim 1999: 326). First, the authoritarian government, which ruled the ROK until the early 1990s, was concerned about pressure for democratization from overseas Koreans, who were strongly influenced by Western liberalism. So the ROK government under President Park Chung-Hee started not to grant the right to vote to Korean nationals abroad after 1972, while it under President Kim Daejung (1998-2002) tried to grant the right to Korean nationals abroad from the late 1990s (Yi 2002). The fact that the ROK changed its policy toward overseas Koreans to a more inclusive one after the democratization in South Korea in the mid-1990s and president supports this explanation (Gim 1998). 149

Second, the ROK experienced the Korean War and maintained a cease-fire with North Korea. Thus, the ROK required compulsive military conscription very strictly. Dual citizenship could be exploited to avoid military service. Existing studies (Conscription 2002; Rights 1997; Service 2001) demonstrates the negative relation between conscription and dual citizenship. In 1995, only 8 countries among 46 countries that had a conscription system without alternative service recognized dual citizenship with no or minimal prohibition, although 53 countries among 191 countries in the world recognized dual citizenship with no or minimal prohibition. Particularly, military service in the ROK was harsh and lasted up to 3 years. There was no alternative. The ROK government could not allow ethnic Koreans who were exempted from military service with foreign citizenship to enjoy Korean citizenship. In addition, most Korean men wanted to avoid military service, if they could. Having dual citizenship might be a way to avoid military service. That might result in the weakening of the conscription system and therefore national security. Thus, the ROK government not only did not recognize dual citizenship but also restricted the rights of ethnic Koreans who returned but did not fulfill the military service requirement (B. Gim 1999). In contrast, the ROC which did not have conscription system did recognize dual citizenship in spite of its state-centered national identity. In addition, neither the ROC nor PRC restricted the entry of ethnic Chinese with foreign citizenship.

The ROK applied two different citizenship policies toward two different groups of ethnic Koreans until the early the 1990s. The ROK did not recognize dual citizenship despite its strong emphasis on ethnic-centered national identity. In the end, the ROK’s citizenship policy toward ethnic Koreans until the early 1990s can be explained by 150

political concerns.

5. Changes in Legal definition of Citizenship after the mid-1990s: There have been five political and economic changes that have brought about changes in citizenship policies since the mid-1990s. First, the ROK’s economy grew rapidly between 1961and 1979. Although the Korean economy faced a crisis from 1980 to 1983, the ROK completely tided over this economic crisis with financial aid from West in 1985. The economy of the ROK grew every year by over 12% between 1985 and 1988, and by over 7% between 1989 and 1990 with relatively low inflation. As a result, the ROK became the 9th largest market in the world in the early 1990s. At the same time, the ROK opened the South Korean market to Western service industries in return for financial aid from the mid-1980s (Cumings 1997: 335-336). Furthermore, the ROK became a member of the World Trade Organization (hereafter, WTO), when the WTO was founded on January 1, 1995. The ROK also became a member of the Organization for Economic Cooperation and Development (hereafter, OECD) in 1997. These international organizations pressured the ROK to modify the Korean economy in the name of neo-liberalism. Indeed, the ROK has opened not only its manufacturing product and service markets, but also its agricultural and marine product markets (Stubbs 1999). Second, the ROK has experienced a dramatic increase of foreign immigration since 1987. After the ROK held the Olympic Games in 1988, more foreigners started to visit South Korea. The number of foreigners who visited the ROK was under 2 million in 1987 but had reached over 5 million in 2000 (Gim et al. 2000; National Statistical Office 2002). Thus, foreigners equal to 12% of total South Korean population visited South Korea in 2000. The number of registered foreigners, who stayed more than 90 days in the ROK, 151

also increased from 40,920 in 1985, to 49,507 in 1990, to 110,028 in 1995, and to 176,890 in 1997. Additionally, the number of foreign workers rapidly increased from 6,409 in 1987, to 73,868 in 1992, to 266,301 in 1997 (Seol 1999: 112) as the ROK economy grew rapidly in the 1990s. As a result, nationals of the ROK have had to live with foreigners since the 1990s. In other words, the South Korean people have become familiar with ethnic others since then. Third, after the Cold War ended, the ROK entered into full diplomatic relations with the Soviet Union in 1990, and with China, Kazakhstan, and Uzbekistan in 1992. Ethnic Koreans in China and the Soviet Union rebuilt their broken ties with South Korea and flowed into South Korea in the 1990s. In particular, tens of thousands of ethnic Koreans from China flowed into the South Korean labor market (Lee 2001a). Fourth, civil society (including NGOs) grew dramatically, and democratization rapidly progressed in the late 1980s and the 1990s in the ROK (Kim 2000). In the late 1980s, economic growth, the development of civil society, and democratization increased the unionization rate in the ROK, which reached 18% by 1990—about the same unionization rate as the U.S.A. As a result, real wages of Korean workers doubled in the late 1980s. Korean workers started to avoid 3D (dirty, difficult, and dangerous) jobs (Lee 2001a). At the same time, social movement organizations and NGOs proliferated in South Korean society after the mid-1980s. The women’s movement also grew and cooperated with other social movements advocating human rights and gender equality (Kim 2000 106-109). Lastly, in the 1990s, the development of the Chinese economy, the removal of trade

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barriers by the WTO, and rapid globalization 69 pushed the ROK to develop hightechnology industries, which required huge capital investment and high quality technicians. The ROK government and enterprises became more anxious to attract foreign capital and foreign high-technology experts. These economic, political, and social changes have stimulated serious amendments of citizenship policy by the ROK since the mid-1990s. First, the Nationality Law was wholly amended in 1997. Second, the ROK enacted laws on entry, exit, and legal status of ethnic Koreans in 1999. Finally, the ROK started to grant green cards to long-term foreign residents such as Hanhwa in 2002. The new nationality law removed patrilineal jus sanguinis but adopted bilateral jus sanguinis (Article 2 and 3) (see Appendix). Thus, children born to either Korean men or women may acquire Korean citizenship at birth. The new nationality law also removed gender discriminations in the acquisition of citizenship through marriage. Foreigners may not acquire Korean citizenship through marriage under the new nationality law, while the 1948 Nationality Law granted Korean citizenship to foreign women who married Korean nationals. This change was compatible with international legal practices. From one perspective, the ROK’s citizenship policy seems to be getting more exclusive. However, the new nationality law grants Korean citizenship to children of Korean women regardless of their fathers’ citizenship. In addition, the new nationality law also adopted jus soli and jus domicili more fully than before. As a result, the ROK lowered its citizenship barrier against foreigners in the long run. The dramatic increase in the number

I use globalization as “the general term for the increasing interdependence of world society.” (Giddens 1993: 528) Although it is not completely new, globalization is rapidly growing today. As a result of globalization, the social, political, and economic connections that clear borders between countries increasingly condition the people’s lives in the world. 69

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of naturalized people in Korea after 1997 supports my argument (see Appendix). Although the ROK partially amended supplemental provisions of this law in 2001, this nationality law is still valid.

5.1. Naturalization: [Figure 1] Naturalization in the ROK: 1982-2001

800 600 400 200 0 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00

Persons

Naturalized Persons: 1982-2001

Years Source: The Ministry of Justice, ROK (Ministry of Justice 2002). The 1997 Nationality Law adopted more jus soli and jus domicili principles in naturalizing foreign nationals than the previous law (Article 6). By doing so, the 1997 Nationality Law started to privilege third generation immigrants, while the naturalization policy under 1948 Nationality Law never privileged third (or even fourth). Additionally, Article 7 Paragraph 2 of the 1997 Nationality Law exempted foreigners who had rendered great services to Korea from all naturalization requirements, as laid down by Article 5. The 1997 Nationality Law specified the conditions for naturalization (Article 5 Paragraph 5). Naturalization got more systematic and inclusive than before (Gim et al.

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2000). As a result, the number of naturalized foreigners greatly increased after 1997 (Table 9). There were only 1739 foreigners naturalized by the ROK government up to August, 2002, among whom 1244 foreigners had been naturalized from 1998 to 2001 (Ministry of Justice 2002). In other words, the citizenship policy of the ROK toward foreigners became much more inclusive in the late 1990s.

5.2. Discrimination against Women: As mentioned above, the ROK revised the Nationality Law with greater gender equality in mind. Three economic, political, and social conditions acted for this revision. First, as mentioned above, foreign workers (mostly from Asian countries such as China, Philippines, Bangladesh, Nepal and so on) started to flow into the South Korean labor market in the late 1980s as the result of the so-called “Han Miracle.” In 1991, the ROK government introduced a policy to import foreign labor force to fulfill the need for workers of 3D industry. Since then, the number of (both legal and illegal) foreign workers rapidly increased and reached 266,301 in 1997 (Seol 1999: 112). They appeared as noticeable ethnic others in the everyday lives of South Korean people. It was unavoidable that marriage between Koreans and foreign workers increased. However, foreign workers who married Korean women could not acquire Korean citizenship through marriage under the previous nationality law. A child born to a Korean woman and a foreign worker obtained not Korean citizenship but citizenship of the father’s state. Foreign workers and their children were often at risk of deportation from the ROK because most of the foreign workers had to work illegally. Second, NGOs made efforts to change the previous nationality law. NGOs and unions helped foreign workers, their Korean wives, and their children. Those 155

organizations such as the Ansan Migrant Shelter, an organization for foreign workers, tried to call public attention to the lives of foreign workers, married couples of different citizenship, and their children, and campaigned against the existing treatment of foreign workers under the nationality law and practice. Soon, women’s movement organizations, which had been struggling against patriarchy in family law for a long time, started their own struggle against the patrilineal jus sanguinis in the 1948 Nationality Law. Fortyseven women’s movement organizations petitioned the National Assembly to revise the nationality law on September 23, 1997 (Choe and organizations 1997). Lastly, international covenants, domestic high laws, and legal principles that advocated gender equality were conducive to the revision. The ROK entered into the International Covenant on Civil and Political Rights in 1990, and the international and domestic pressure against gender discriminatory provisions in the Nationality Law became greater (Jeong 2002; Lee 2001a). Additionally, jurisprudence 70 of the Korean court system pressured the ROK government to revise the 1948 Nationality Law. The Seoul High Court decided to refer the constitutional question to the Constitutional Court on August 20, 1997, finding that the gender discriminatory provisions in the 1948 Nationality Law might be unconstitutional. 71 Before the Constitutional Court made a decision on it, the Ministry of Justice introduced an amendment bill for the nationality law to the National Assembly on September 13, 1997 (No 1997b). Of course, traditionalists and ethnic-centered nationalists instantly opposed the amendment to the nationality law. They argued that patrilineal jus sanguinis in the 1948

I mean “rationality and logic on which contemporary legal systems depend” by jurisprudence. A man whose father was a Chinese national but mother was a national of the ROK illegally entered the ROK from China. When he was caught and ordered to be deported, he sued to have the deportation order against him overturned. He contended that patriarchal jus sanguinis rule in the Nationality Law unduly 70 71

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Nationality Law was the best way to preserve the ethnic homogeneity of the Korean nation. Yeongdon No, a legal scholar, advocated patrilineal jus sanguinis on the basis of a typical ethnic-centered nationalism: One of the problems of bilateral jus sanguinis is that it will impair the ethnic homogeneity of Korean nation. In other words, from old times the Korean people (or minjok) has maintained its ethnic homogeneity and has made it its historical mission to build a unitary state consisting of ethnically homogeneous nationals… This Korean national identity manifests itself in the spirit of the ROK, and the ROK has pursued a persistent policy to maintain and promote it. Thus, citizenship of the ROK has more than legal-technical meaning… If we adopt bilateral jus sanguinis, a person who would be a foreign national under patrilineal jus sanguinis could… obtain Korean citizenship at birth. This will impair the ethnic homogeneity of the Korean nation (No 1997b: 34). However, appealing to the ethnic-centered national identity combined with patriarchy was not successful. The National Assembly passed the new nationality law based on bilateral jus sanguinis, rejecting patriarchy. When I interviewed a staff member of a women’s movement organization in Seoul, Korea, she told me that the women’s movement organizations easily won the struggle against discriminatory provisions in the Nationality Law. It was because patrilineal jus sanguinis in the nationality law was supported by only a few Koreans such as members of Confucianist organizations, while not only courts, government officials, and NGOs, but also the public strongly supported bilateral jus sanguinis. I argue that the modern idea of gender equality, international covenants, jurisprudence, and the growing power of NGOs led to the bilateral jus sanguinis revision of the nationality law.

5.3. Policy toward Foreign Workers: In the 1990s, a good number of foreign workers entered the South Korean labor

excluded him from Korean nationality, which was incompatible with the constitutional principle of gender

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market because of the ROK’s upgraded economic status in the world system and changes in its international relations. The ROK’s policy toward foreign workers was extremely exclusionary and often violated their basic rights. However, international covenants, NGOs, jurisprudence, and various interest groups forced changes in the policy of the ROK. In analyzing the factors that produced the changes, I will distinguish legal foreign workers from illegal foreign workers (including foreign industrial-technological trainees). I make this distinction not only because the ROK had different policies toward the two different groups, but also because different factors were responsible for changes in policies toward the two groups. The ROK was a country that exported workers to the U.S.A., Germany, Japan, and the Middle Eastern countries until the mid-1980s. Foreign workers barely entered the South Korean labor market in that period. Thus, the ROK had no social problem caused by foreign workers and Korean people paid no attention to the issue of foreign workers until the 1980s. However, economic success, democratization, and the success of the labor movement in the late 1980s rapidly increased real wages in South Korea. In the 1990s, the South Korean labor market attracted workers from South Asian countries whose real wages were much lower than South Korean real wages. Additionally, South Korean workers showed a tendency to avoid working in 3D industries. Thus, medium and small-sized enterprises that were mostly engaged in 3D industries suffered from a shortage of cheap workers. Furthermore, the ROK had lifted the barrier to foreigners when it held the Olympic Games in 1988, making visa exemption agreements, permitting entry without visa, and simplifying entry formalities (S. Gim 1995). The ROK aimed to accept more foreigners who wanted to see the games and increase earnings from the

equality (Lee 2001a).

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games. As a result, foreigners began to enter the ROK with tourist visas or relative visiting visas and began to work in 3D industries without working permits from the late 1980s, because the ROK government was supposed to grant work permits only to foreign experts not replaceable by Koreans. On November 1, 1991, the ROK started to open the door to cheap workers in order to fulfill the needs of medium and small-sized enterprises, adopting the “industrial-technological trainee system” by the order of the Ministry of Justice. According to the order, South Korean companies which directly invested in foreign countries, exported plants to foreign countries, transferred technologies to foreign firms, and got a recommendation from a ROK ministry, might train workers of the foreign subsidiaries or collaborating firms at facilities located in South Korea. The trainees were expected to work and stay at their trainer companies and to return to their original workplaces immediately after the end of a training program spanning from six months to one year (Bak 1995). [Table 2] Foreign Workers and their Legal Status: 1987-1997 Year

Total (persons)

1987

6,409

Legal Workers: Qualified Workers (%) 34.2

Industrial-technological Trainees (%)

Illegal Workers (%)

0.0

65.8

1988 1989 1990 1991 1992

7,410 14,610 21,235 45,449 73,868

32.4 16.9 13.3 6.5 4.6

0.0 0.0 0.0 1.3 6.7

67.6 83.1 86.7 92.1 88.7

1993 1994 1995

66,323 77,546 134,047

5.7 6.8 6.1

12.1 31.0 31.9

82.2 62.2 62.0

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1996 1997

210,494 266,301

6.4 5.5

32.3 38.9

61.3 55.6

Source: Ministry of Justice, ROK (Seol 1999: 112). In fact, the industrial trainee system was used for recruiting cheap workers from 1991. The ROK government distributed the trainees mostly to firms engaged in 3D industries instead of to firms that had a foreign subsidiary or collaborating firms. Although the industrial-technological trainee system was exploited to fulfill the need of 3D industries, the ROK legally did not regard trainees as workers. Thus, not only illegal workers but also industrial-technological trainees were not protected by the Korean Labor Standard Law. Indeed, the trainees could not change their trainer companies nor stay where they wanted to. Thus, the trainees often had to submit to worse terms than illegal workers. Their wages were lower than those of illegal workers. The trainees were not covered by workers’ accident compensation insurance. Over 60% of them escaped from the so-called trainer companies seeking better pay and working conditions and thereby became illegal workers (Bak 1995). Most illegal workers and industrial-technological trainees were from South Asian countries. After the ROK entered into full diplomatic relationships with China in 1992, a good many Chinese workers (including ethnic Koreans with Chinese citizenship) also flowed into the South Korean labor market. The number of illegal foreign workers and trainees in the ROK increased slowly in 1987-1989, and speeded up in the years up to 1997 (Table 10). The trainees and illegal workers were often greatly exploited without legal protection until the mid 1990s. They were always at the risk of deportation either by the police or by trainer companies. The trainees and illegal workers worked 12-14 hours almost everyday, including weekends and had no holidays. Korean companies not only

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did not pay minimum wages to them, but also often delayed payment of the meager wages they did pay. Illegal foreign workers were occasionally beaten by Korean staff officials. Moreover, Korean companies seized the passports of over 90% of these foreign workers in order to prevent them from changing their employers. When a Korean reporter interviewed Sunil Karki who had given up a middle school teaching job in Nepal to come to South Korea seeking higher pay, and subsequently worked illegally, he talked about his experience as the following way: When I refused to work on Sunday, the company staff seized me by the collar, dragged me, and trampled on my whole body. Although there were 17 other Nepalese fellow workers, they could do nothing but to look on with threatened eyes (O 1995). Narabaz, another Nepalese worker, was severely injured while he was working in 1992. Yet, the company not only paid no accident compensation to him but also provided such poor medical care that he could not use his left arm (Bak 1994). The average wage of illegal foreign workers was $300-350, while that of the trainees was only $200-260 in 1994. This amounted to only about 30-40% of Koreans’ wage in the same industries (Hwang 1994). As I previously mentioned, cruel treatment, long working hours, and low wages of foreign workers were mainly due to lack of legal protection. From the early 1990s, NGOs which aimed to improve the lives of illegal foreign workers and trainees, and to change the ROK’s policy toward them, mushroomed in the ROK. NGOs such as the Oegugin Nodongja Ingwoneulwihan Moim [Conference for Human Rights of Foreign Workers] (1992), the Oegugin Nodongja ui Jip [Migrant Workers’ House] (1994), and the Ansan Oegugin Nodongja Senta [Ansan Migrant Shelter] (1994) were founded and over 30 NGOs devoted to seeking rights for foreign workers were active in 2000 (Sin, Yi, and Jeong 2000). In the beginning, these NGOs

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made an effort to make the problem of foreign workers a social issue in Korea, in an attempt to improve their treatment and to alter the ROK’s policy toward them. Various Korean (both nationwide and local) newspapers carried articles on foreign workers, and television companies broadcasted programs on them. The NGOs united and organized the Oegugin Nodongja Daechaek Hyeopuihoe [Conference for Countermeasures to Foreign Worker Problem] in July 1995. The Conference introduced to the National Assembly the Oegugin Nodongja Bohobeoban [Bill for the Protection of Foreign Workers] for equal treatment of foreign workers in 1996 (Oegugin 1999). Finally, after 1998, foreign workers began to organize their own NGOs. In addition, foreign governments, international NGOs, and international covenants pressured the ROK into improving its policy toward foreign workers. First, South Asian states whose nationals worked illegally in the ROK frequently made diplomatic requests of the ROK to protect the human rights of their nationals in South Korea. For example, the Sri Lankan Minister of Labor and the Philippine ambassador visited the ROK Ministry of Labor, and requested protection for their nationals working in South Korea. Second, international NGOs dedicated to protecting the rights of migrant workers were interested in the rights of foreign workers in South Korea, as the problem of foreign workers in the ROK drew public attention in the 1990s. The international NGOs made various efforts to help them. For example, 20 international NGOs jointly sent a letter to the Korean ambassador to the United Nations requesting protection of the human rights of foreign workers in March 20, 2000. 35 Asian NGOs again sent a joint letter to the South Korean Ministry of Foreign Affairs and Trade and requested protection for foreign workers in April 2000 (Sin, Yi, and Jeong 2000). Finally, the International Labor Organization (hereafter, ILO) and the UN had already adopted the principle that every 162

state should treat foreign (or migrant) workers as equals to domestic workers: the ILO adopted the Treaty on Equal Treatment of Immigrant Workers in 1975 and the UN adopted the Treaty on the rights of Immigrant Workers in December 1990. The international principle on the rights of migrant workers was consulted by the Korean courts and legislative organizations (S. Gim 1995; 1999). As a result, the ROK government gradually granted rights to foreign workers equal to or similar to Korean workers’ rights, despite its emphasis on ethnic-centered national identity. The Ministry of Labor decided to apply the Labor Standard Law and the Industrial Accident Compensation Insurance Law in part to illegal foreign workers on November 23, 1993 (Anonymous 1993). The Seoul High Court for the first time decided that illegal foreign workers should be covered by the industrial accident compensation insurance on November 26, 1993 (S. Gim 1995; Gim and Yi 1993). The ROK government lengthened the maximum period of stay for trainees from a single year to two years in 1994. The Ministry of Labor promulgated “the guide for the protection and control of the industrial-technological trainee” in February 1995. By doing so, the ROK applied to the foreign trainees some Korean labor laws that defined minimum wages and industrial safety standards, and banned abuses and forced labor. In 1997, the ROK government tried to introduce the “work permit system” for foreign workers. However, this system was checked by the Hangukgyeongyeongjachonghyeophoe [Korea Employers Federation: hereafter, KEF] and the Jungsogieophyeopdo [Federation of Small and Medium Businesses: hereafter, FSMB]. The KEF and the FSMB objected to the “work permit system” not by appealing an ethnic-centered nationalism, but by highlighting their interest in labor costs. The ROK government accepted the KEF and the FSMB’s appeal and instead introduced the “post-training employment system” in March 1998. According 163

to this system, foreigners might legally work in the ROK after finishing a two-year training program. The ROK government promulgated an order to apply the Labor Standard Law to illegal foreign workers in October 1998, and another order to guarantee minimum wages to the foreign trainees and to protect them with industrial accident compensation insurance in December 1999 (Sin, Yi, and Jeong 2000). Pressure to make the ROK’s policy toward high-technical foreigners more inclusive also came from the KEF. While the KEF objected to the “work permit system” on behalf of small and medium businesses, it requested the “permanent residence system” on behalf of high-technology industries. As I previously mentioned, the bigger the ROK economy became, the stronger the pressure to open its markets to the U.S.A., Japan, and European companies became, especially when the ROK entered the WTO in 1995 and the OECD in 1997. Thus, these international organizations accelerated globalization and increased the pressure on the ROK to open its market (Stubbs 1999). In addition, cheap Chinese commodities had weakened the price competitiveness of Korean commodities on the world markets since the 1980s. The ROK enterprises made efforts to solve this problem and to produce high value-added products based on high-technology. Korean enterprises suffered from a lack of high-quality experts and were inclined to import high-technology technicians from foreign countries.72 In order to attract foreign high-technology experts, Korean enterprises offered high salaries and substantial benefits. The Korean government also had already granted prestigious legal status to the foreign high-technology experts before it entered the WTO and the OECD. However, high-

72

Political and Economic Risk Consultancy, Ltd.(or PERC) is a leading research company located in Hong Kong whose services some of the world’s leading corporations and financial institutions regularly use to assess key trends and critical issues shaping Asia, to identify growth opportunities, and to develop effective strategies for capitalizing on these opportunities. According to PERC, the ROK suffered from a

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technology industries urged the ROK government to grant them more legal rights after Korea entered the WTO and the OECD. Gihwan Gim, a former Chairman of the Korea Trade and Investment Promotion Agency, wrote an article on Joseonilbo [Korean Daily News]: One problem of the ROK’s immigration policy is that the ROK is not willing to allow foreign experts to enter Korea. They have problems in obtaining working visas and have to renew the visas every year. They also need permit if they change employment. They cannot help but work temporarily in Korea… In this way, the ROK’s policy toward foreign experts is in contrast to the policy of the states that have advanced in information industries and globalization. For example, Singapore generously grants the “green card” to qualified foreign experts, while it extremely restricts the entry of uneducated cheap workers… We must notice that the countries that take an inclusive policy toward qualified foreign experts enormously benefit from the policy (Gim 2000). Korean newspapers directly attacked the exclusionist citizenship policy of the ROK on behalf of national interests. For example, another article on Joseonilbo stated: The world is moving from the time when the states adopt an open citizenship policy toward foreign nationals to the time when citizenship is sold and bought. Now the global standard of citizenship system is not “ethnicity” but “national interests.” If we do not recognize this fact, it is said, we will fall behind in the race of countries in the world sooner or later (Jeong and Yi 2000). There were almost no objections to the need for a more inclusive national policy to high-technology experts on the basis of national interests. Until 1992, foreign experts could work in the ROK for a maximum of only four years. The ROK extended that term to nine years in 1992, to 12 years in 1994, and to 18 years in 1996. Finally, the ROK adopted the “permanent residence system” and started to grant denizenship to long-term foreign workers with high-technology skills from April 2002 (Korea 2002a). The rapid increase in the number of foreign workers holding work permits clarified what the real goal of these amendments was. The number of legal foreign workers jumped from 2,192

severe lack of high quality human resources for high-technology industries until 1997 (Political and

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in 1987 to 3,780 in 1993, and then up to 14,647 in 1997 (Table 9). 73 In spite of an economic depression in 1993, the number of legal foreign workers steadily increased until 1997. In particular, the number rapidly increased in 1995-1997 after the ROK entered the WTO and adopted a more inclusive policy. From 1998, the number of foreign high-technology workers slightly decreased because of the global financial crisis and a reduction in the exchange rates of Korean currency. However, more foreign businesspersons, investors, and employees came to Korea with long-term visas at the same time (National Statistical Office 2002).

5.4. Policy toward Residents of Chinese Ethnicity: From the 1990s, the ROK began to reconsider its policy toward Chinese residents in Korea. Three major factors brought about this reconsideration. First, as previously mentioned, the ROK was anxious to strengthen their connections with the Chinese economy as the PRC economy grew rapidly from the 1980s. At the same time, the ROK was willing to attract capital from Hwagyo (or Huaqiao in Chinese: Chinese abroad) in Southeast Asia countries as it intended to develop high-technology industries. Furthermore, after the ROK economy experienced a financial crisis in 1997, the need for investment from ethnic Chinese became more pressing. Daewhan Jang, publisher of Maeil Gyeongje Sinmun [Economic Daily News] and a former Prime Minister Candidate, stated the ROK’s interest in ethnic Chinese capital as the following: Overseas Chinese are playing a pivotal role in the world economy, particularly in Asia. A recent survey shows that ethnic Chinese run 517 companies among Asia’s Economic Risk Consultancy 1997). 73 Under the Korean Exit and Entry Control Law, only qualified foreigners that could be not replaced by Koreans technicians could legally work in the ROK. Thus, most legal foreign workers were high-quality experts engaged in high-technology companies and research institutions (Korea 2002a).

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top 1000 and their asset value totals 550 billion U.S. dollars, which is close to mainland Chinas gross domestic product. Also, current assets held by overseas Chinese account for 2 trillion U.S. dollars... After the 1997 financial crisis, [South] Korea has paid more attention to the need for cooperation with overseas Chinese capital than any other times. Many feel the need for [South] Korea’s diversification of its international capital sources as some analysts blamed the foreign currency crisis on [South] Korea’s heavy reliance on the U.S. and Japan (Jang 1999). Second, as more foreigners from various countries entered South Korean society, Koreans realized their commonality with Chinese long-term residents. In addition, they also realized the negative effect of ethnic-centered nationalism and exclusionist policy toward foreigners. Newspapers and broadcasting companies accused Korean employers of mistreating severely foreign workers who the Korean law did not protect. The newspapers and broadcasting companies attacked not only exclusionary, ethnic-centered citizenship policy but also Koreans’ ethnic-centered national identity. Even the nationalist newspaper Joseonilbo carried the following article, which stated: The world is advancing to the times of open citizenship. It is natural because the boundary between nation-states is collapsing and the world community is economically, socially, and culturally blending into one. Yet we stick to the “myth of ethnically homogeneous citizenship” and “Dangun’s lineage”… Although we talk about “Korea in the global community,” there strongly remains prejudice and rejection against foreigners everywhere in our society (Jeong and Yi 2000). As a result, Korean people started to reflect on their prejudice and discrimination against Hanhwa who had been their old neighbors. They then realized the poor legal status of the old neighbors. Finally, international relations also affected the legal status of Hanhwa. The ROK had criticized the Japanese government for its treatment of Korean residents in Japan. But the unfavorable treatment of Hanhwa in South Korea was in turn used as a pretext for Japanese indifference to calls for fair treatment of Korean residents in Japan. This Japanese critique of the Korean treatment of Hanhwa raised voices for greater self-

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reflection on the ROK’s policy toward and treatment of Hanhwa. Thus, President Kim Dae-jung stated that his administration was considering granting the right to vote in local elections to resident foreigners including Hanhwa in March 1999, when the Japanese government was discussing a bill to extend such a right to Korean residents in Japan (Choe 1999). After the ROK normalized diplomatic relations with the PRC in 1992, Korean companies started to change the ROK government’s attitude toward Hanhwa (Yang 1999). Newspapers and broadcasting companies sponsored by these companies participated in changing Korean public attitude toward Hanhwa. For example, an article carried by Dongailbo argued that Hanhwa should be treated as neighbors (Gim and Yi 1999). NGOs for human rights like the Minjusahoereuluihan Byeonhosa Moim [Lawyers for a Democratic Society] initiated a legislation campaign in order to give denizenship to Hanhwa and other long-term foreign residents in the late 1990s (Jeong, An, and Han 2000). Later, NGOs aiding foreign workers began to pay attention to the Hanhwa issue in the late 1990s because foreign workers would soon face the same problem that Hanhwa was facing (Lee 2001a). Finally, in 1998, local governments and a group of Koreans started a Chinatown campaign, and aimed at attracting capital from ethnic Chinese in South Asia (Yang 1999). Those local governments and campaign participants requested that the ROK government give the “green card” to Hanhwa. Pilseung Yang who was leading the Chinatown campaign said, “The most immediate task is to give them denizenship” (Lee 2001a: 37-38). Progress has recently been made with regard to the legal status of Hanhwa. Under the Korean Exit and Entry Control Law, Hanhwa held a F-2 visa, which was for longterm sojourners. Until 1994, Hanhwa had to renew their visas every second year. In July 168

1994, the ROK amended the laws, decrees, and regulations to make F-2 visa valid for three years, and revised the F-2 visa to run for five years in December 1995. On February 1, 1997, the ROK allowed Hanhwa who were disqualified from the F-2 visa status and could not stay in the ROK to recover the F-2 visa status. Furthermore, the ROK enacted a new nationality law in December 1997 and opened the door to Korean citizenship for Hanhwa wider than before (Article 1, 5, 6, and 7 of the 1997 Nationality Law). The ROK removed the restriction on Hanhwa’s land ownership by revising the Foreigners’ Land Law in June 1998. This was mainly designed to attract the capital of ethnic Chinese in Southeast Asia after the economic crisis in 1997. The ROK realized that Hwagyo were hesitant about investing in Korea because of the poor situation of Hanhwa (Yang 2000). In 1999, the ROK also authorized Hanhwa schools and gave them such benefits as tax exemption. Finally, the ROK adopted the “permanent residence system” in 2002 (Gim 2002). The ROK established F-5 visa to give permanent residence to foreigners, particularly for F-2 visa holders such as Hanhwa (Ministry of Legislation 2002). Thus, Hanhwa became semi-citizens of the ROK without forfeiting their Taiwanese citizenship. Chulwoo Lee, a law professor, wrote, “This will be a significant device to realize the extension of citizenship which is progressing hand in hand with globalization” (Lee 2001b). Hanhwa are no longer excluded from most job categories, are not refused credit card memberships, nor do they suffer from higher interest rates on bank loans. Indeed, Hanhwa who left the ROK returned after the late 1990s. Also on the rise is the percentage of Hanhwa high school graduates who choose to go to Korean universities. The ROK’s more inclusive citizenship policy alongside Korea’s economic success and adjustment to globalization have become the main lures for immigration (Lee 2001a).

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5.5. Policy toward Ethnic Koreans with Foreign Citizenship and Dual Citizenship: Joseonjok case As mentioned in Chapter 4, the ROK strongly emphasized an ethnic-centered national identity since its founding. On the basis of ethnic-centered national identity, the ROK mainly assumed that the Korean nation should be an ethnically homogeneous community, and the ROK should be the real homeland of all ethnic Koreans, who were (or should be) loyal to the ROK. However, despite the ethnic-centered assumptions, the ROK did not allow dual citizenship, mainly due to political concerns and its conscription system. Indeed, the ethnic Koreans could not maintain nor regain the ROK citizenship without serving as Korean soldiers. Furthermore, when the ROK’s contacts with ethnic Koreans in China and the Soviet Union (Russia, Kazakhstan, Uzbekistan, and so on) and their influx into the ROK began in the 1990s, the ROK treated them as foreigners rather than as Korean nationals. This strongly undermines the culturalist notion that national identity was the primary factor in determining the legal definition of citizenship in the ROK. After the ROK normalized diplomatic relations with the Soviet Union (the Commonwealth of Independent States after 1992) and the PRC in the early 1990s, over 1,900,000 Joseonjok (or Chaoxianzu in Chinese: ethnic Koreans in China) and almost 440,000 Goryeoin (ethnic Koreans in the Soviet Union) who had citizenship of the host states, came under the influence of the ROK’s citizenship policy (Go 2000: 42). According to the culturalist schema, the ROK citizenship might be extended to ethnic Koreans in China and in the Commonwealth of Independent States (hereafter, C.I.S.) regardless of their citizenship before the normalization of diplomatic relations. Germany,

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which maintained an ethnic-centered national identity, extended its citizenship to ethnic Germans from former socialist countries after the collapse of the Berlin Wall in 1990 (Brubaker 1992). However, the ROK government did not allow both Joseonjok and Goryeoin to acquire citizenship of the ROK. This was mainly because (1) both the PRC and the C.I.S. countries, concerned about ethnic nationalism among ethnic Koreans, did not want the ROK to give Korean citizenship to ethnic Koreans with their citizenship, and (2) the ROK government was concerned about the social problems which might be caused by a possible influx of as many as 2.4 million ethnic Koreans (Go 2000).74 South Korean economy unlike that of Germany was not powerful enough to accommodate ethnic Koreans from China and from the C.I.S. Over 300 Joseonjok visited the ROK via third-countries such as Hong Kong from 1985 to the end of 1987. At that time, the ROK called Joseonjok “overseas compatriots’ and regarded them as more or less Korean nationals. As I previously mentioned, the ROK issued travel certificates to Joseonjok. However, the ROK government changed its policy when President Roh Tae-woo (1988-1993) declared that the ROK would make efforts to normalize diplomatic relations with communist states on July 7, 1988. Consequently, the ROK government stopped putting the issue of Joseonjok’s citizenship on the agenda and dealt with this issue in accordance with its policy regarding ethnic Koreans in Western countries, in effect encouraging overseas Koreans to obtain citizenship in the host states. In 1990 the ROK stopped issuing travel certificates to Joseonjok. Yet, the ROK privileged Joseonjok as “overseas compatriots’ in the meantime although they now had to

74

The ROK maintained the same policy toward both Joseonjok and Goryeoin. At the same time, much fewer Goryeoin came to the ROK than Joseonjok since the 1990s, because of different geological, political, and economic situations between the PRC and the CIS states. Thus, I will focus on Joseonjok in analyzing the ROK’s nationality policy toward ethnic Koreans with nationality of the former communist states.

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enter the ROK with Chinese passports. For example, the ROK readily issued visas to Joseonjok until May 1992. The number of Joseonjok entry greatly increased from 1,660 in 1988, to 36,135 in 1991 (Lee 2001a; Seol 1999). However, the ROK’s policy and attitude toward Joseonjok gradually changed as it normalized diplomatic relations with the PRC in 1992 and more Joseonjok became illegal workers mainly because the PRC did not want the ROK to privilege Joseonjok as “overseas compatriots.” The ROK started to strictly control Joseonjok’s entry from June 1, 1992. The ROK government requested that they submit an “invitation” written by Korean relatives, companies, and officials even when Joseonjok applied for short-term visas. In contrast, such invitations were only requested when ethnic Koreans with Western citizenship applied for long-term visas. Furthermore, the ROK issued visas for visiting relatives in Korea only to Joseonjok aged 60 or above. From that stage, the ROK’s citizenship policy toward Joseonjok became more exclusionary than its citizenship policy toward ethnic Koreans holding passports from Western states. However, the ROK’s policy toward Joseonjok (and Goryeoin) was more inclusive than its policy toward ethnic Koreans with citizenship of Western states before 1990s. The ROK government initially granted Korean citizenship to only Joseonjok that were former independence activists and their descendants. In addition, the ROK partly accepted some old Joseonjok who wanted to settle down in the ROK as Yeongjugwigukja [permanent resident returnees]. The ROK also designed a “nationality adjudication procedure” for Joseonjok who wanted to acquire Korean citizenship. The ROK distinguished the “nationality adjudication procedure” from naturalization procedure so that it privileged Joseonjok in the context of ethnic-centered national identity. Through the “nationality adjudication procedure,” Joseonjok could obtain Korean citizenship 172

without fulfilling requirements for naturalization. However, Chulwoo Lee writes, [D]espite the intention of the government to avoid giving an impression that it regarded joseonjok as aliens, many confused the ascertainment of the Korean nationality of “permanent resident returnees” through the nationality adjudication procedure with naturalization, and the press commonly used the term “acquisition of Korean nationality” in describing the procedure (Lee 2001a: 10). The ROK treated Joseonjok almost equal to other foreigners after 1992. In addition, in 1997 the Ministry of Justice, which was in charge of citizenship matters, laid down an internal guideline regarding treatment of Joseonjok. The guideline presumed Joseonjok who were born before the founding of the PRC as having had Korean citizenship but forfeited it on 1 October 1949 upon their acquisition of Chinese citizenship. Thus, those Joseonjok could restore their Korean citizenship if they wanted to. In contrast, the guideline presumed Joseonjok who were born after the founding of the PRC as having never been Korean nationals. Thus, they might acquire Korean citizenship only through naturalization procedure like other foreigners. As a result, most Joseonjok were treated as foreigners by the ROK. However, many Joseonjok came to the ROK legally or illegally and became illegal workers because of the relatively high wages in the ROK. The number of Joseonjok workers in South Korea were estimated about 40,000 at the end of 1997, most of whom were illegal workers (Gim et al. 2000: 22). More than 20,000 new Joseonjok workers entered the ROK in order to work as illegal workers or as industrialtechnological trainees during 1999 (Ministry of Justice 2000). Joseonjok workers had the same legal status as foreign workers from South Asian countries held. They suffered from the same problems that the other foreign workers suffered from. The ROK did not eagerly protect Joseonjok despite its ethnic-centered nationalism. Korean companies exploited them greatly. Most Korean companies did not

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pay legal minimum wages to them. Although Joseonjok could speak Korean fluently, their wages were almost equal with those of other foreign workers. Fifty three point nine percent of them suffered from delayed payment of wages. In addition, Joseonjok were not covered by the workers’ accident compensation insurance until the ROK enforced that the coverage be extended to the all illegal foreign workers. Furthermore, Joseonjok were always at risk of deportation. 69.7% of Joseonjok always carried bribes in preparation for policy enforcement (Gim et al. 2000: 25). In the end, Joseonjok were in practice no more Korean nationals than were foreign workers of non-Korean ethnicity. This was mainly because the PRC and the C.I.S. countries diplomatically pressured the ROK not to accept ethnic Koreans as Korean nationals. The PRC and the C.I.S. countries were afraid that the ROK would control ethnic Koreans in their territories and provoke ethnic nationalism. Employers benefit from this situation in order to exploite Joseonjok in South Korea. Indeed, the ROK government under President Kim Young-Sam (1993-1998) considered allowing dual citizenship of ethnic Koreans. This was not because the ROK wanted to strengthen ethnic-centered nationalism at that time, but because the ROK needed to entice high-technology and capital from ethnic Koreans abroad just before becoming a member founding of the WTO. For example, government officials and persons who rallied for dual citizenship emphasized the need to entice engineers, experts, talents, and successful businesspeople of Korean ethnicity in the era of globalization (B. Gim 1999: 342-346; ; Lee 2001a). However, the ROK government faced the danger of conflict with neighboring states (in particular, the PRC), possible abuse of conscription system and negative public opinion about the dual citizenship system. Particularly, the Ministry of Foreign Affairs and Trade strongly objected to dual citizenship because of complaints from China, Russia, Uzbekistan and Kazakhstan. These states protested that 174

Korea was seeking to control their Korean minorities. The Kim Young-Sam administration thus decided not to recognize dual citizenship in 1996 despite its strong emphasis on ethnic-centered national identity. As a result, Joseonjok were excluded from Korean citizenship again. The ROK government under President Kim Young-Sam removed some of the restrictions on the rights of ethnic Koreans instead of recognizing dual citizenship in 1996. Ethnic Koreans with citizenship of Western states were allowed to stay longer than before, to freely dispose of property in the ROK, and to take more foreign currency out of the ROK. However, these changes did not change the legal status of Joseonjok in South Korea. Later, the ROK government under President Kim Dae-jung (1998-2002) prepared a special bill which granted rights not available to foreigners of non-Korean ethnicity to ethnic Koreans with foreign citizenship, including Joseonjok. The bill was designed to extend national treatment to Oegukgukjeok Dongpo (ethnic Koreans with foreign citizenship) 75 including Joseonjok in economic activity, some social entitlements, and even civil servant recruitment except in certain areas. However, the bill faced strong opposition from China, Russia, Uzbekistan and Kazakhstan. These states strongly protested that Korea was seeking to control their Korean minority (Choe 1998). The Ministry of Foreign Affairs and Trade was concerned about conflicts with these states and also objected to the bill (Anonymous 1998; Lee 2001a). As a result, the ROK excluded Joseonjok (and Goryeoin) from the ambit of the law when the ROK promulgated the Law on the Entry, Exit, and Legal Status of Overseas Koreans (or

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The Korean term Oegukgukjeok Dongpo is very similar to the Chinese term Huaren (ethnic Chinese of foreign nationality), while Jaeoe Gungmin (overseas Korean nationals) is to Huaqiao (overseas Chinese nationals).

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Overseas Koreans Law) on September 2, 1999. According to Article 2 of the Overseas Koreans Law, overseas Koreans consist of Jaeoe Gungmin (overseas Korean nationals) and Oegukgukjeok Dongpo (ethnic Koreans of foreign citizenship) (see Appendix). While the legal definition of Jaeoe Gungmin by the Overseas Koreans Law is compatible with common sense, that of Oegukgukjeok Dongpo is not, as the Overseas Koreans Law excluded from the category of Oegukgukjeok Dongpo Joseonjok (and Goryeoin) who had emigrated before the founding of the ROK and have never held citizenship of the ROK. This was intended by the ROK. Thus, Article 3 of the Presidential Decree Implementing the Overseas Koreans Law clarifies the definition of Oegukgukjeok Dongpo as (1) persons who have emigrated abroad after the founding of the ROK and have renounced their Korean citizenship and their lineal descendants and (2) persons who emigrated abroad before the founding of the ROK and had their ROK citizenship expressly ascertained (e.g., registered themselves as the ROK nationals to the host countries) before acquiring foreign citizenship, as well as their lineal descendants (Korea 1999b). The Overseas Koreans Law provides Oegukgukjeok Dongpo with almost all citizenship rights but political rights. With F-4 visas Oegukgukjeok Dongpo (excluding Joseonjok and Goryeoin) freely enter and exit South Korea, have real property rights and transactions equal to those of Korean citizens, have almost no restrictions on employment, economic activity, and foreign exchange transactions. Furthermore, they enjoy social rights such as health insurance and pensions. 2.5 million Joseonjok and Goryeoin out of 5.6 million overseas ethnic Korean in total were excluded from the benefits of the Overseas Koreans Law. As a result, the gap in the legal status of these two groups of ethnic Koreans deepened. 176

Immediately after the promulgation of the law, a number of Joseonjok sojourning in South Korea organized hunger strikes against the law. They highlighted the unfairness of the law and appealed not to ethnic-centered nationalism but to a sense of justice. They argued that Joseonjok and Goryeoin are persons who left to fight for an independent Korean nation-state or their descendants whereas most Korean immigrants to Western countries left for their personal well-being. Thus, it is unfair that those who renounced Korean citizenship for their well-being are treated favorably whereas those who could not help losing Korean citizenship while fighting for the founding of the ROK are treated contemptuously (Gwon 1999). Korean NGOs which either agreed with their arguments or were willing to protect universal human rights of the weak, launched protests against the law and helped Joseonjok file a constitutional complaint. The Constitutional Court decided that the Overseas Koreans Law was not compatible with the Constitution on November 29, 2001. The decision was made not on the basis of ethnic-centered nationalism but on the basis of universal human rationality. In its decision, the Constitutional Court wrote, “It is not compatible with the principle of equality that the law discriminates against overseas Koreans who emigrated before the founding of the ROK without a rational reason” (Korea 2001). The Constitutional Court ordered that the ROK government must amend the law by December 31, 2003. Although the ROK has to amend the Overseas Koreans Law, this does not mean that the ROK will include Joseonjok and Goryeoin in the category of Oegukgukjeok Dongpo. Although the new bill is not prepared yet, Koreans who are concerned with this matter are expecting that the ROK will include Joseonjok and Goryeoin in the ambit of the Overseas Koreans Law but curtail the rights that ethnic Koreans with foreign citizenship can claim (Jeong, Yeo, Yi, and Yi 2001). This is mainly because of the 177

ROK’s concerns about diplomatic conflicts with the PRC and the C.I.S. states; but is also in part because of the ROK’s concerns about domestic problems that a great influx of Joseonjok (and Goryeoin) could cause. Joseonilbo carried an article regarding the ROK government’s response to the decision of the Constitutional Court on November 30, 2001: The Ministry of Justice said, “It is possible that a good many of 2,600,000 Joseonjok and Goryeoin influx at once...We need to consider the following problmes in the process of revising the related laws: (1) diplomatic problems with the PRC and Russia, which are very sensitive to minority problems, (2) the chaos of labor market and employment insecurity due to oversupply of cheap labor, and (3) crimes by overseas Koreans.” The Ministry of Foreign Affairs and Trade is especially concerned about the possible diplomatic conflict with the PRC when the Overseas Koreans Law is revised to benefit Joseonjok. They worry that the PRC would consider such an act conflicing with its minority policy in large and furthermore the violation of sovereignty (Heo and Yi 2001). In reality, Li Bin, the Chinese ambassador to Korea, cautioned that the ROK should consider its relations with the PRC when the ROK amends the Overseas Koreans Law (Ji 2001). Furthermore, the PRC rejected issuing visas to Four Korean Assemblymen who planned to travel to the Joseonjok area. Thus, Joseonjok still remain as aliens and are contemptuously treated without secure legal status in the ROK (Choe 2002). The PRC’s inclusive citizenship policy gave rise to Joseonjok’s loyalty to the PRC and national identification as Chinese. Thus, the PRC is very afraid that the ROK’s inclusive policy toward Joseonjok will change their loyalty and national identity. This is why the PRC (and the C.I.S. states) is so sensitive to the ROK’s citizenship policy toward Joseonjok. Although the ROK government prepared several methods to accommodate Joseonjok, their legal status still remains rather similar to that of foreign workers in Korea. Thus, NGOs helping foreign workers also make efforts to protect Joseonjok.

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In conclusion, the legal definition of South Korean citizenship is increasingly influenced by political and economic factors rather than cultural factors. First, political and economic factors brought about the changes of the legal definition of South Korean citizenship. As previously mentioned, since the 1990s, the normalization of diplomatic relations with the PRC and the C.I.S. states, international migration, new international norms, globalization, publicity in the media, and NGOs have challenged the existing citizenship policy of the ROK. The ROK has amended the law via legislative acts, presidential decree, and ministry regulation on nationality law four times since 1990. Furthermore, the ROK amended the law and/or issued presidential decree or ministry regulation on the exit and entry control 30 times in 1990-2002, while it did so only 15 times in 1948-1989. The ROK enacted the Overseas Koreans Law and is going to amend it. These changes show that various political and economic factors have strongly influenced the citizenship policy of the ROK and the legal definition of citizenship in South Korea.

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CHAPTER SEVEN VII. Conclusion China has developed and institutionalized a state-centered, inclusionist national identity, while Korea has an ethnic-centered, exclusionist national identity since they entered the international order made by nation-states in the late 19th century. However, both China and Korea have adopted jus sanguinis despite great differences in the ethnic structure of their nations and national identity. In addition, both China and Korea have changed their legal definitions of citizenship in ways that run counter to their national identities. This shows that citizenship boundaries are not determined by national identities in China and Korea. Indeed, various political and economic factors rather than cultural factors such as national identity strongly influence the legal definition of citizenship in China and Korea. Furthermore, citizenship, which was determined by various political and economic factors, shaped national identity in the two East Asian countries. Therefore, I argue that my study raises doubts about the usefulness of culturalist explanations of the Chinese and the Korean cases, and instead supports a structuralist explanation rooted in reified political and economic relations, which determines “material and ideal interests.” First, I contrasted Chinese state-centered national identity with Korean ethniccentered national identity in chapters 3 and 4. Second, I explained in chapters 5 and 6 that international legal practices, the household system, and the Japanese experience of adopting modern citizenship deeply affected their system when modern citizenship system was founded in China and Korea. As a result, both the Qing court and the Joseon court adopted jus sanguinis despite great

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differences in the ethnic structure of their nations and national identity. Although the ROC and the PRC have emphasized a multi-ethnic, state-centered national identity since the collapse of the Qing, the principle of jus sanguinis remained as the primary principle of the Chinese nationality laws. This casts doubts on the presumption that jus sanguinis derived from an ethnic-centered national identity. Third, as I mentioned previously, the ROC recognized dual citizenship and made an effort to include ethnic Chinese abroad in its citizenry, despite its state-centered national identity, when the modern Chinese nation-state was founded in 1911. This can be explained by the goal of securing the ROC’s sovereignty as a way to entice support from overseas Chinese in developing the Chinese economy. When the PRC was founded in 1949, for a while it maintained the same policy toward overseas Chinese as the ROC had. The PRC stopped recognizing dual citizenship from the mid-1950, because it wanted to rebuild friendly relations with neighboring states. In contrast, the ROK has never recognized dual citizenship, although it has emphasized single-ethnic, ethnic-centered national identity since its founding in 1948. Indeed, until the early 1990s, the ROK maintained an exclusionist policy toward overseas Koreans in Western countries because of its political concerns, while it adopted an inclusionist policy toward only a few ethnic Koreans escaping from the PRC and the Soviet Union. Finally, both the PRC and ROK have made important changes in their legal definitions of citizenship regardless of their national identities since the 1990s. The ROK endeavored to change its exclusionist citizenship policy toward non-Korean foreigners in the 1990s and finally adopted the “permanent residence system” in 2002 without transforming its ethnic-centered national identity to a state-centered national identity. At the same time, the ROK has maintained an exclusionist policy toward the majority of 181

ethnic Koreans, such as Joseonjok, despite its ethnic-centered national identity. As a result, Hanhwa enjoy a much more secure legal status than Joseonjok do in the ROK. In contrast, the PRC has strengthened connections with ethnic Chinese abroad since 1980s, although it encouraged ethnic Chinese to be naturalized in their host countries until the 1970s. The PRC has granted various special treatments to ethnic Chinese returnees after the economic reform because they can contribute a large amount of foreign exchange and human resources, which are essential for economic reforms. Thus, the PRC’s “permanent residence system” mainly targets overseas Chinese, while that of the ROK mainly targets ethnic others. Considering their national interests in the global era, both the PRC and ROK have adopted new citizenship policies and promulgated new legal definitions of citizenship, which have often been inconsistent with their existing national identities. Brubaker (1992) argued that citizenship is not a politics of interests, but a politics of identity in France and Germany. Yet, in China and Korea, whose policies are both oriented by national interests, such as building a rich and strong nation-state, citizenship is definitely a politics of interests. This is not unusual because both China and Korea have been willing to change their cultural values, such as the importance of class distinctions by birth, in their economic development and state-building in the name of national interests (Hunt 1993; Kim 1988; Wilson 1993). Thus, my study raises serious doubt about culturalist explanations of East Asian development. In addition, my study also offers an interesting finding about the relationship between citizenship and national identity. The Chaoxianzu (or Joseonjok) case demonstrates that the PRC’s inclusive citizenship policy deeply affected the national identity of Chaoxianzu rather than the other way around. Although Chaoxianzu have 182

maintained their Korean culture and ethnic identity, they express strong feelings of belonging to the PRC. In contrast, most Hanhwa who are born and raised in Korea, and have become accustomed to Korean culture, have continued to regard themselves as Chinese (Bak 1981a; 1981b; Choi 2000). This is mainly because they have been excluded from Korean citizenship. This also demonstrates that the ROK’s exclusionary policy deeply affected the national identity of Hanhwa. Both the Chaoxianzu and Hanhwa cases strongly support the claim that citizenship produces national identity. Therefore, this finding also supports the structuralist argument that a nation is a product of a modern state and a cultural-political community (Anderson 1983; Gellner 1983; Hobsbawm 1990). My study also specifies important political and economic factors such as state elites’ concerns about budget, diplomatic relations, political ideology, financial and technological necessity, and globalization that directly affected the legal definition of citizenship both in the PRC and the ROK. This is in accord with previous studies of citizenship by structuralists such as Hollifield (1992), Soysal (1994) and Jacobson (1994; 1997). At the same time, my study demonstrates differences between the PRC and the ROK. While NGOs are still powerless in the PRC, they are growing powerful in the ROK. Korean NGOs are an important factor in changing citizenship policy and the legal definition of citizenship. It is increasingly difficult for the government to decide citizenship policy under the name of national interests. NGOs based on the principle of universal human rights have made rather effective efforts to force the state to offer citizenship to foreign workers, including Joseonjok workers in Korea. Many political scientists (Bermeo 1992; Diamond 1993; Huntington 1984; 1991; Jayasuriya 1994; Nelson 1994) connect NGOs, human rights movement, and democracy with market 183

economy. South Korea has longer history of market economy, higher level of economic wealth, and bigger middle class than China does. This explains a lot about the power of NGOs in South Korea. Marx in The Eighteenth Brumaire of Louis Bonaparte wrote, Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly found, given and thransimited from the past. The tradition of all the dead generations weighs like a nightmare on the brain of the living. And just when they [people] seem engaged in revolutionizing themselves and things, in creating something entirely new, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service and borrow from them names, battle slogans and costumes in order to present the new scene of world history in this time-honored disguise and this borrowed language. Thus Luther donned the mask of the Apostle Paul, the Revolution of 1789 to 1814 draped itself alternately as the Roman Republic and the Roman Empire, and the Revolution of 1848 knew nothing better to do then to parody, inturn, 1789 and the revolutionary tradition of 1793 to 1795. In like manner the beginner who has learnt a new language always translates it back into his mother tongue, but he has assimilated the spirit of the new language and can produce freely in it only when he moves in it without remembering the old and forgets in it his ancestral tongue (Marx 1852[1978]: 595; emphasis added). Chinese and Korean elites also exploited their myths, traditional values, cultural idioms, and cultural identities when they needed to build their new nation-states. Thus, it is not easy to distinguish new ideas from old terms, new national goals from traditional idioms, and a new national identity from a traditional ethnic idenitity. As a result, scholors are always at the risk of overstating the role of cultural values and ideas when they analyize social changes in China and Korea. Clifford Geertz warns as the following: The danger that cultural analysis, in serch of all-too-deep-lying turtle, will lose touch with the hard surfaces of life—with the political, economic, stratificatory realities within which men are everywhere contained—and with the biological and physical necessities on which those surface rest, is an ever-present one (Geertz 2000: 30).

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This warning is quite relevant to Chinese and Korean cases. This is because both China and Korea have experienced rapid westernization and social changes. China and Korea have tried to eliminate cultural values and identities incompatible with new political and economic situations since they normalized diplomatic relations with Western countries. In these two East Asian countries, although new things and old ones are still mingled together, old ones have been transformed for their new goals: founding modern citizenship, solidifying their nations, and build strong and rich nation-states. As I reviewed, these two East Asian states changed their citizenship policies in ways that run counter to their prevailing national identities on behalf of national interests. They endeavored to transform traditional ethnic identities into new national identities. Finally, considering that identity is a type of idea, my dissertation is closely related to the concept of the relations between ideas and interests, which is one of the key sociological topics. Marx viewed ideas as the expression of interests and saw a correspondence between interests and ideas. Weber tried to point out possible tensions between ideas and interests and devised the concept of “elective affinity” in order to explain the relations between them (Mills and Gerth 1946: 61-65). I criticize culturalist explanation of social changes and economic development in China and South Korea. However, I do not argue that identities and ideas are nothing but the expression of interests. I do not suggest that cultural analysis is useless. State-centered Chinese national identity continuously influenced the Chinese government adopt an inclusive citizenship policy. For example, the GMD government adopted jus soli and jus domicili to no small extent and the Qing and the PRC naturalized a notable number of foreigners despite their pure jus sanguinis. At the same time, ethnic-centered Korean national identity was reflected in the ROK’s exclusionist citizenship policy toward Hanhwa for a long time. In 185

addition, traditional household registration system influenced citizenship both in China and Korea. However, China and Korea occasionally changed the tracks considering national interests, which are also conditioned by diplomatic relations, international migration, and internation markets. Weber wrote: Not ideas, but material and ideal interests, directly govern men’s conduct. Yet very frequently the ‘world images’ that have been created by ‘ideas’ have, like switchmen, determined the tracks along which action has been pushed by the dynamic of interests (Weber 1946: 280). I argue that ideas and identities directly impact citizenship policies in China and Korea. In this sense, cultural analysis is useful to guessing the patterns along which citizenship policy have been pushed by the static of ideas and identities. Yet ‘national interests,’ which are conditioned political and economic situations, like switchmen, occasionally changed the patterns. Therefore, I criticize culturalists for relying too much on cultural factors to explain important social changes. Nevertheless, I acknowledge the importance of eth interpretive functions of cultural analysis, reaffirming Clifford Geertz’s delimitation of cultural analysis. Geertz in The Interpretation of Cultures (2000) points out that the essential vocation of cultural analysis is not to answer fundamental questions about human societies but to understand and interpret humans in webs of significance. This study has its limits. First, as Rogers Brubaker and Frederic Cooper (2000) point out, the term “identity” is used to refer to so many different phenomena, which are often mutually contradictory. 76 Thus, the usefulness of the term to social scientific Rogers Brubaker and Frederic Cooper (2000) categorize six major different uses of the term “identity” in academia. The term “identity” is used to highlight (1) non-instrumental modes of social and political action; (2) self-understanding rather than self-interests; (3) a fundamental and consequential sameness among members of a group or category; (4) deep, basic, abiding, or foundational “selfhood;” (5) the contingent, interactive development of collective self-understanding and solidarity; and (6) the unstable, multiple, and fragmented nature of the contemporary “self” (Brubaker and Cooper 2000: 6-8). 76

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analysis is questioned by scholars. Therefore, this dissertation – that is, challenging modes of citizenship attribution in connection with different “national identities” – has some important weaknesses. Second, this study does not analyze in detail how citizenship transformed the national identity of Chinese and Korean citizens because it presumed a consistency between official national identity and popular national identity. As a result, this study has some limits in settling the arguments between culturalists and structuralists on the relationship between ethnicity and nationhood. Third, this study develops only (1) of three fundamental issues regarding citizenship in China and South Korea: (1) “how the boundaries of membership within a polity and between polities should be defined; (2) how the benefits and burdens of membership should be allocated; (3) and how the identities of members should be comprehended and accommodated” (Aleinikoff and Klusmeyer 2001: 1). Fourth, this study is not able to analyze why the PRC’s and ROK’s cases are so different from those of France and Germany, where cultural identity played major roles in defining the legal definitions of citizenship. In China and Korea, I argue that particular national identity and general cultural identity have not been independent variables determining policies and, thus, social changes. Conversely, state policy has transformed identity and culture. As a result, this study highlights the weakness of the culturalist model in explaining rapid development and social changes in China and Korea. Yet, this study does not elaborate on the analysis of why national interests have priority over cultural identity in China and Korea unlike in France and Germany, and why national interests are such a powerful propulsive force in China and Korea. Recognizing the limitations of using the term “identity,” I define “identity” as a rather stable self-understanding in order to minimize the ambiguity of the term. I cannot 187

help using the term, because “[t]he concept ‘identity’ has remained blurred but indispensable in political analysis and social history” (Tilly 1996: 7). Overall, overcoming this limit is beyond the range of my dissertation. The second and the third limits will be overcome together by a more systematic study. Studies of how the benefits and burdens of membership have been allocated, how the identities of members have been comprehended and accommodated, and how popular national identity has been formed by modern citizenship in China and Korea will be my next research projects. The fourth issue looks much more difficult. In order to overcome it, profound understandings of Chinese and Korean modern history are needed. It will be a life-time project of mine. However, I would like to suggest that the profound understanding of Chinese and Korean modern history depend on the analysis of the effects of contemporary social changes such as political and scientific revolution, capitalist development, the global market, state-building, diffusion of sciences, and class struggles (the Chinese Revolution and the Korean War), which are the most significant processes shaping human identities, interests, and interaction (Katznelson 1997) For example, I suggest that economic and political interests have priority over cultural identity in China and Korea unlike in France and Germany because China and Korea have been located at the periphery or semi-periphery in the world system of stratification. This is because the concept of world system is very helpful to understanding material and ideal interests, on which not only state elites but also the masses maintain a consensus. Thus, this is also helpful to explaining the unique models of development in China and Korea. Kyong-Dong Kim offers a similar viewpoint: Being a nation with a long and often glorious history of civilization, yet 188

downtrodden under the cruel steps of a once barbarian neighbor now equipped with modern weaponry, bureaucracy, and economic prowess, furthermore torn by a civil war, and shaken by continuing political turmoil, the Korean nation found itself still reaching to catch up with the poor nations in the global community. In this respect, the notion of world system of stratification is useful to the extent that Korea as a peripheral nation had to crawl out of that status as fast as possible. And this stimulus or impetus for adaptive change came from the process of acculturation, above all (Kim 1988: 205-206; emphasis added).

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APPENDICES 1. Summary of the 1909 statute on Nationality of the Qing

Section I. Nationality by Parentage. Art. 1. The following are Chinese, whatever the locality my be in which they are born: 1. A child born of a father who at the time of its birth is Chinese. 2. A child born after the death of the father, if the father at the time of death was Chinese. 3. A child born of a Chinese mother, the father being unknown or without a determinate nationality. Art. 2. A child who is born to stateless or unknown parents in China gets Chinese nationality.

Section II. Naturalization. Art. 3. A foreigner desiring to be admitted to Chinese nationality may apply for naturalization, provided he (or she) can comply with all the following requirements: 1. Having legally stayed in the territory of China for more than five years without interruption. 2. Having attained the age of 20 years and having legal capacity under the law of his (her) original country. 3. Having good character. 4. Possessing sufficient property or professional skills, which enable him (her) to make a self-reliant living or a living without worry. 5. The law of his own country will treat him as having lost his original nationality upon naturalization. Art. 4. The condition (Art. 3 Para. 5 defined) can be waived for a foreigner who had rendered distinguished service to China. Art. 5. A foreigner who meets the following requirements acquires Chinese nationality: 1. A foreigner woman who has married a Chinese. 2. A foreigner child living under the parental care of a Chinese stepfather. 3. An illegitimate child born to and acknowledged by a Chinese father. 4. An illegitimate child born of a Chinese mother, when abandoned by the father and acknowledged by the mother. Art. 7. A foreigner married woman applying for naturalization on her own has to cancel her original nationality upon acquiring Chinese nationality.

Section III. Loss of Nationality.

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Art. 11. A Chinese who intends to acquire a foreign nationality first has to obtain permission to be released from his Chinese nationality. Art. 12. The permission will be granted only if, at the time of filing his petition, the petitioner is not involved in any pending civil or criminal cases, subject to military service, in arrears with any state or communal taxes, or the holder of any governmental position or vested with official rank. Art. 13. A Chinese woman who marries a foreigner is deemed to have lost her Chinese nationality; but if by the law of her husband’s country she does not acquire the nationality of that country through marriage, she will retain her Chinese nationality. Art. 14. If a man gives up Chinese nationality, his wife and underage children will lose their Chinese nationality at the same time; however, if the wife wishes to retain her nationality or the person who gives up Chinese nationality wishes the underage children to retain their nationality, consent will be grated to their application. Art. 15. A married woman during the life-time of her husband cannot alone apply for a discharge.

Section IV. Readmission. Art. 19. A Chinese woman who lost her Chinese nationality through marriage might apply for recovery of her Chinese nationality upon divorce or becoming a widow.

Supplemental Provisions. 1. Any Chinese subject who… has become naturalized in a foreign state… and has since resided abroad must, on returning to China, report at the first port to the consul of the country of his acquired nationality and request the latter duly to communicate his naturalization… to the local Chinese authorities… 2. Any Chinese subject who… has become naturalized in a foreign state… and has since resided in the settlement of a Chinese treaty port, must within one year of the enactment of this law make known his alienation to the local Chinese authorities… 3. Whoever does not prove the loss of his Chinese nationality in pursuance of the preceding two provisions shall be deemed to have remained a Chinese subject. 4. Any Chinese subject who… has acquired alien nationality… and has since resided, traded and owned immovable property in the interior and enjoyed such special privileges and rights as Chinese are entitled to enjoy shall be deemed to have remained always Chinese subjects. 5. Any Chinese subject who… has acquired alien nationality… and yet has since held or is still holding some governmental position shall be deemed to have

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remained always Chinese subjects. Source: The Qing government (Qing 1910). 2. The 1929 Nationality Law of the ROC Art. 1. A person who meets one of the following requirements acquires the nationality of the ROC: 1. A person whose father is, at the time of his (her) birth, a citizen of the ROC. 2. A person born after the death of his (her) father who was, at the time of his (her) death, a citizen of the ROC. 3. A person whose father is unknown or stateless, but whose mother is a Chinese national. 4. A person born in the territory of the ROC and whose parents are both unknown or are stateless. Art. 2. A foreigner who meets one of the following requirements acquires the nationality of the ROC: 1. A person who is the wife of a ROC citizen unless she retains her 2. 3. 4. 5. Art.

nationality under her own nationality law. A person whose father is a ROC citizen and who has been legitimized by him. A person whose father in unknown or has not legitimized him (or her) but whose mother is a ROC citizen and has legitimized him (or her). A person who is adopted by a ROC citizen. A naturalized person.

3. A foreigner or a stateless person can become naturalized with the

permission of the Ministry of the Interior, if he (or she) has fulfilled the following conditions: 1. Having legally stayed in the territory of the ROC for more than five years without interruption. 2. Having attained to the age of 20 years and have legal capacity under both the law of the ROC and the law of his (her) original country. 3. Having good character.

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4. Possessing sufficient property or professional skills, which enable him (her) to make a self-reliant living or a living without worry. Art. 4. A foreigner or a stateless person who has, at present, a domicile in the territory of ROC and who meets one of the following requirements may apply for naturalization if the alien has legally stayed in the territory of the ROC for more than three years: 1. A person whose father or mother was once a citizen of the ROC. 2. A person whose wife was once a citizen of the ROC. 3. A person who was born in China. However, there is no residence requirement for the following persons: 1. A person who was born in the territory of the Republic of China and whose father or mother was also born in the territory of the ROC. 2. A person who once resided in the territory of the ROC for more than ten years. Art. 5. A minor alien whose father or mother is a ROC citizen and who has legally stayed in the territory of the ROC for less than three years and does not meet the requirements specified in sub-paragraphs 2 and 4 of Article 3 may also apply for naturalization. Art. 6. A foreigner or a stateless person who has rendered distinguished service to the Republic of China but does not meet the requirements specified in the sub-paragraphs of Article 3 may also apply for naturalization. The Ministry of the Interior needs to first obtain the approval of the Executive Yuan before it can grant naturalization to such person as stated in the preceding Paragraph. Art. 7. Naturalization becomes effective on the date it was announced in the State Gazette. Art. 8. A naturalized person’s wife, and his children who have not attained majority under the law of their own country, also acquire the nationality of the ROC as a result of that person’s naturalization, except where the law of his wife’s or children’s own country provides otherwise.

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Art. 9. A foreigner or a stateless person who is naturalized shall not be eligible for the following public offices: 1. Counselor of the National Government, President of Yuan, Minister of a Ministry, and President of Commission. 2. Member of the Legislative Yuan and member of the Control Yuan. 3. Extraordinary and Plenipotentiary Ambassadors or Ministers. 4. Generals in the Army, Navy and Air Forces. 5. Counselor of a provincial or district government. 6. Mayor of a Special Municipality. 7. Functionary of a self-governing community of any class. The restrictions specified in the preceding Paragraph shall be removed by the National government at the request of the Ministry of the Interior, with respect to a person naturalized in accordance with the provisions of Article 6, after 5 full years from the date of his (or her) acquisition of nationality, and with respect to other persons after 10 full years from the date of their acquisition of nationality. Art. 10. A person who meets one of the following requirements may renounce the nationality of the ROC: 1. A wife of a foreigner who wishes, upon her own free will, to renounce the nationality of the ROC, with the permission of the Ministry of the Interior. 2. A person whose father is a foreigner and who has been legitimized by him. 3. A person whose father in unknown or has not legitimized him (or her) but whose mother is a foreigner and who has been legitimized by her. The majority requirement is exempted for the person who renounces Chinese nationality according to the previous sub-paragraphs 2 or 3. Art. 11. A person who wishes, upon his (or her) own free will, to acquire the nationality of a foreign country may, with the permission of the Ministry of the Interior, renounce the nationality of the ROC provided that he (or she) has attained the age of twenty full years or more and has legal capacity under the law of the ROC.

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Art. 12. A person who is under the following situations cannot obtain the permission to renounce Chinese nationality: 1. A person who, having attained the age for military service, is not exempt from such service and has not yet performed it. 2. A person who is performing military service. 3. A person who holds a Chinese civil or military office. Art. 13. A person who falls under one of the categories described in Article 11 shall not lose his (her) nationality falling under any one of the additional circumstances below: 1. A person who is a defendant in a criminal case under investigation or trial. 2. A person who has been sentenced for imprisonment for a specific term and whose sentence has not been completed. 3. A person who is a defendant in a civil case. 4. A person who has not completed the terms of compulsory execution. 5. A person who has been declared bankrupt and has not been rehabilitated. 6. A person who is in arrears with his (her) taxes or who has not fully paid a tax fine. Art. 14. A person who has lost his (or her) Chinese nationality must surrender those rights that only Chinese nationals can enjoy. Unless those rights are transferred to a Chinese national (or nationals) within 1 year after the loss of Chinese nationality, such rights will become the property of the national treasury. Art. 15. A Chinese women who married a foreigner and renounced her Chinese nationality in accordance with Article 10 paragraph 1 sub-paragraph 1, may, after the annulment of her matrimonial relationship, recover the nationality of the ROC with the permission of the Ministry of the Interior. Art. 16. A Chinese who lost his or her Chinese nationality in accordance with Article 11, can recover his or her Chinese nationality by the permission of the Ministry of the Interior provided that he or she meet the conditions

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Article 3 paragraph1 sub-paragraphs 2, 3, and 4. Art. 17. In accordance with Article 8, Articles 15 and 16 will be enforced. Art. 18. A person who has been restored the nationality of the Republic of China shall not, within three years from the date of restoration, hold public offices specified in sub-paragraphs of Paragraph 1 of Article 9. Art. 19. Regulations for the enforcement of this Law shall be prescribed. Art. 20. This Law shall come into force from the date of its promulgation. Source: Suryadinata (1985). 3. The 1980 Nationality Law of the People’s Republic of China Art. 1. This law is applicable to the acquisition, loss and restoration of nationality of the PRC. Art. 2. The PRC is a unitary multinational state; persons belonging to any of the nationalities in China shall have Chinese nationality. Art. 3. The PRC does not recognize dual nationality for any Chinese national. Art. 4. Any person born in China whose two parents are Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. Art. 5. Any person born abroad whose two parents are Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. Art. 6. Any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality.

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Art. 7. Foreign nationals or stateless persons who are willing to abide by China’s Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications: (1) they are near relatives of Chinese nationals; or (2) they have settled in China; or (3) they have other legitimate reasons. Art. 8. Any person who applies for naturalization as a Chinese national shall acquire Chinese nationality upon approval of his application; a person whose application for naturalization as a Chinese national has been approved shall not retain foreign nationality. Art. 9. Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality. Art. 10. Chinese nationals who meet one of the following conditions may renounce Chinese nationality upon approval of their applications: (1) they are near relatives of foreign nationals; or (2) they have settled abroad; or (3) they have other legitimate reasons. Art. 11. Any person who applies for renunciation of Chinese nationality shall lose Chinese nationality upon approval of his application. Art. 12. State functionaries and military personnel on active service shall not renounce Chinese nationality. Art. 13. Foreign nationals who once held Chinese nationality may apply for restoration of Chinese nationality if they have legitimate reasons; those whose applications for restoration of Chinese nationality have been approved shall not retain foreign nationality. Art. 14. Persons who wish to acquire, renounce or restore Chinese nationality, with the exception of the cases provided for in Article 9, shall go through the

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formalities of application. Applications of persons under the age of 18 may be filed on their behalf by their parents or other legal representatives. Art. 15. Nationality applications at home shall be handled by the public security bureaus of the municipalities or counties where the applicants reside; nationality applications abroad shall be handled by China’s diplomatic representative agencies and consular offices. Art. 16. Applications for naturalization as Chinese nationals and for renunciation or restoration of Chinese nationality are subject to examination and approval by the Ministry of Public Security of the PRC. The Ministry of Public Security shall issue a certificate to any person whose application has been approved. Art. 17. The nationality status of persons who have acquired or lost Chinese nationality before the promulgation of this Law shall remain valid. Art. 18. This Law shall come into force on the day of its promulgation. Source: People’s Republic of China (PRC 1980) 4. The Law of the People’s Republic of China of the Protection of the Rights and Interests of Returned Overseas Chinese and Relatives of Overseas Art. 1. This Law is formulated in accordance with the Constitution in order to protect the legitimate rights and interests of returned overseas Chinese and relatives of overseas Chinese. Art. 2. “Returned overseas Chinese” refers to those overseas Chinese who have returned to and settle down in the motherland. “Overseas Chinese” refers to those Chinese citizens who have settled abroad. “Relatives of overseas Chinese” refers to the relatives, residing in China, of both overseas Chinese and returned overseas Chinese. The term “relatives of overseas Chinese,” as used in this Law, includes the following relatives of overseas Chinese and of returned overseas Chinese: their spouses, their parents, their children, the spouses of their children,

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their brothers and sisters, their grand parents and grand children as well as their other relatives who have established with them a long-standing fostering relationship. Art. 3. Returned overseas Chinese and relatives of overseas Chinese shall enjoy citizen’s rights as well as perform citizen’s obligations as provided for in the Constitutions and laws; no organizations or individuals shall discriminate against them. The State shall make appropriate allowance for returned overseas Chinese and relatives of overseas Chinese in accordance with their actual conditions and special features; the relevant specific measures shall be formulated by the State Council or the competent authorities concerned under the State Council. Art. 4. The State shall make arrangements for the establishment of the overseas Chinese who have returned to the motherland for resettlement. Art. 5. An appropriate number of deputies shall be elected from among returned overseas Chinese to the National People’s Congress and to the local people’s congresses in the regions inhabited with a relatively large number of returned overseas Chinese. Art. 6. Returned overseas Chinese and relatives of overseas Chinese shall have the right to set up social organizations according to law to protect the lawful rights and interests of returned overseas Chinese and relatives of overseas Chinese, and to carry out lawful social activities that meet the needs of returned overseas Chinese and relatives of overseas Chinese. The property of the social organizations set up, according to law, by returned overseas Chinese and relatives of overseas Chinese shall be protected by law, and no organizations or individuals shall encroach upon the said property. Art. 7. The State shall give support to farms, forest farms and other enterprises,

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where returned overseas Chinese have been helped by the State to settle; no organizations or individuals shall encroach upon the land the returned overseas Chinese have the right to use, or infringe upon their lawful rights and interests. Farms, forest farms and other enterprises, where returned overseas Chinese are settled, may set up, according to needs schools and medical/health centers, and the State shall give them support in such respects as working personnel, equipment and outlay. Art. 8. In case that returned overseas Chinese or relatives of overseas Chinese make investments in the establishment of industrial and commercial enterprises or in the reclamation of barren hills, wasteland and boggy beaches, or engage in such production activities as agriculture, forestry, animal husbandry, sideline occupations and fishery, the local people’s governments at various levels shall give support to them, and their lawful rights and interests shall be protected by law. Art. 9. In case that returned overseas Chinese or relatives of overseas Chinese establish public welfare undertakings in the country, the local people’s governments at various levels shall give support to them, and their legal rights and interests shall be protected by law. In cases where returned overseas Chinese and relatives of overseas Chinese accept and use goods and materials donated voluntarily by their relatives and friends abroad in establishing public welfare undertakings, the cases shall be handled in accordance with the pertinent provisions of the State, and they shall enjoy the preferential treatment of reduction of, or exemption from, customs duties. Art. 10. The State shall, according to law, protect the proprietary rights of houses privately owned by returned overseas Chinese and relatives of overseas Chinese. In case that houses privately owned by returned overseas Chinese or

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relatives of overseas Chinese are to be requisitioned or dismantled and removed, according to law, to meet the needs of State construction projects, the units that undertake the said construction projects shall, in accordance with the pertinent provisions of the State, give corresponding compensation to, and arrange proper accommodation for, the returned overseas Chinese or the relatives of overseas Chinese concerned. Art. 11. When returned overseas Chinese students, children of returned overseas Chinese or children of overseas Chinese residing in China intend to enter a higher school or to find employment, due allowance shall be made therefore in accordance with the pertinent provisions of the State. Art. 12. The State shall protect the overseas remittances received by returned overseas Chinese and relatives of overseas Chinese. Art. 13. Returned overseas Chinese and relatives of overseas Chinese shall have the right to inherit or to accept legacies, bequeathals or gifts from their relatives or friends residing outside the country. Returned overseas Chinese and relatives of overseas Chinese shall have the right to dispose of their properties outside the country. Art. 14. The contacts and correspondence of returned overseas Chinese and relatives of overseas Chinese with their relatives and friends outside the country shall be protected by law. Art. 15. In case that returned overseas Chinese and relatives of overseas Chinese apply for permission to leave the country, the competent authorities concerned shall examine and approve the application within a prescribed time limit. If returned overseas Chinese or relatives of overseas Chinese have actual urgent needs to leave the country owing to such special circumstances as critical illness or death of their lineal relatives or disposal of their properties outside the country within a prescribed time limit, the competent authorities

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concerned shall examine and approve the applications in good time in accordance with the valid certification provided by the applicants. Art. 16. The State shall protect the right of returned overseas Chinese and relatives of overseas Chinese to leave the country for a visit to their relatives abroad. The returned overseas Chinese and the relatives of overseas Chinese who are functionaries or workers in government organs or in State-run enterprises or institutions shall, according to the pertinent provisions of the State, enjoy the treatment of going abroad for a visit to their relatives outside the country. Art. 17. Returned overseas Chinese and relatives of overseas Chinese shall have the right to leave the country and settle abroad. In case that returned overseas Chinese and relatives of overseas Chinese who served as functionaries or workers and have retired (either as veteran cadres or as ordinary functionaries and/or resigned from office), leave the country and settle abroad, they shall continue to receive their retirement payment or resignation payment. Art. 18. In case that returned overseas Chinese and relatives of overseas Chinese apply for studying abroad as self-paid students, due allowance shall be made therefore in accordance with the pertinent provisions of the State. Art. 19. With respect to the legitimate rights and interests, in foreign countries, of returned overseas Chinese and relatives of overseas Chinese, the Chinese government shall offer them protection in accordance with the international treaties to which the People’s Republic of China is a contracting or acceding party or in accordance with international practice. Art. 20. In cases where the legitimate rights and interests of returned overseas Chinese and relatives of overseas Chinese have been encroached upon, they shall have the right to appeal to the competent authorities concerned for handling the cases according to law, or to bring a suit before a people’s

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court. Art. 21. The measures for implementation shall be formulated by the State Council in accordance with this Law. The standing committees of the people’s congresses of various provinces, autonomous regions and municipalities directly under the Central Government shall formulate their specific measures for implementation in accordance with this Law and the measures for implementation formulated by the State Council. Art. 22. This Law shall enter into effect on January 1, 1991. Source: ChinaBig.com Ltd (http://www.chinabig.com.cn/en/humanresources/law/overseas.htm). 5. The 1948 Provisional Rules on Nationality of the South Korea Interim Government Art. 1. The goal of these rules is to clarify legal relations by establishing the nationality of Koreans until the enactment of a nationality law. Art. 1. 2. 3. 4. 5.

2. A person who meets one of the following requirements acquires the nationality of Joseon [Korea]: A person whose father is, at the time of his (her) birth, a Joseonin [Korean]. A person whose mother is a Korean and father is unidentified or stateless. A person born in the territory of Korea and whose parents are both unknown or are stateless. A foreign woman who has been a wife of Korean as long as she does not recover her foreign nationality on divorce. A naturalized foreigner; laws will stipulate conditions for naturalization and his (or her) rights later.

Art. 3. A person who meet either Paragraph 2 or 4 of Article 2 has the same rights that a naturalized person has Art. 4. A person who meets one of the following requirements lose Korean nationality: 1. A person naturalized to a foreign country.

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2. A person who becomes either a wife or a child of a foreign national. 3. An illegitimate child born to and acknowledged by a Chinese father. Art. 5. A Korean who had acquired the nationality of another state or had been entered on the Japanese household register was recognized to have recovered their Korean nationality as of 9 August 1945 upon renouncing their foreign nationality or deletion of their registration on the Japanese household register. Art. 6. This Law shall come into force from the date of its promulgation. Source: Seok (1997) 6. The 1948 Nationality Law of the ROK Art. 1. This law defines matters regarding nationality of the ROK. Art. 2. A person who meets one of the following requirements acquires nationality of the ROK: 1. A person whose father is, at the time of his (her) birth, a national of the ROK. 2. A person born after the death of his (her) father who was, at the time of his (her) death, a national of the ROK. 3. A person whose mother is a ROK national and father is unidentified or stateless. 4. A person born in the territory of ROK and whose both parents are either unknown or stateless. Art. 3. A foreigner who meets one of the following requirements acquires the nationality of the ROK: 1. A person who is the wife of a ROK national. 2. A person whose father or mother is a ROK national and who has been legitimized by him (or her). 3. A naturalized person. Art. 4. A foreigner who wants to acquire the nationality of the ROK based on Paragraph 2 of Article 3 should meet one of the following requirements:

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1. A person who is a minor under the law of his (her) original country. 2. A person who is not a wife of a foreign national. 3. A person who has been legitimized earlier by a ROK national when parents with different nationality legitimize the person at different times. 4. A person whose Korean father legitimized him (or her) when parents with different nationality legitimize the person at the same time. Art. 5. A foreigner who meets the following requirements may acquire ROK nationality by permit of the Minister of Justice: 1. Having a domicile (or domiciles) in the territory of Korea for more than 5 years without interruption. 2. Having attained to the age of 20 years and have legal capacity under the law of his (her) original country. 3. Having good character. 4. Possessing sufficient property or professional skills, which enable him (her) to make a self-reliant living or a living without worry. 5. Being stateless or losing the original nationality upon naturalization. Art. 6. A foreigner who meets one of the following requirements and has had a domicile (or domiciles) in the territory of the ROK for more than three years may be naturalized although the alien does not meet Paragraph 1 of Article 5: 1. A person whose father or mother was once a national of the ROK. 2. A person whose wife is a national of the ROK. 3. A person who was born in the territory of the ROK and whose father or mother was also born in the territory of the ROK. Art. 7. A foreigner who has, at present, a domicile in the territory of ROK and who meets one of the following requirements may be naturalized regardless of Paragraphs 1, 2, and 4 of Article 5: 1. A person whose father or mother is a national of the ROK. 2. A foreigner who has rendered distinguished service to the ROK. 3. A person whose husband acquired a national of the ROK. The Minister of Justice needs to first obtain the approval of the President before it can grant naturalization to such person as stated in the preceding Paragraph 2.

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Art. 8. A naturalized person’s wife, and his children who have not attained majority under the law of their own country, also acquire the nationality of the ROK as a result of that person’s naturalization, except where the law of his wife’s or children’s own country provides otherwise. Art. 9. A foreigner who is a wife of a foreigner may not acquire naturalization unless her husband also acquires naturalization. Art. 10. A naturalized and a wife and children of a naturalized shall not be eligible for the following public offices: 1. President, Vice-president. 2. Minister of a Ministry. 3. Extraordinary and Plenipotentiary Ambassadors or Ministers. 4. Commander in chief, Chief of the General staff in the Army, Navy and Air Forces. Art. 11. Naturalization becomes effective on the date it was announced in the State Gazette. Art. 12. A ROK national who meets one of the following requirements may renounce the nationality of the ROK: 1. A person who is a spouse of a foreigner and acquires foreign nationality. 2. A person national who is adopted by foreigner and acquires foreign nationality. 3. A person who was a ROK national through marriage but divorces and recovers foreign nationality. 4. A person who acquires the nationality of a foreign country upon his (or her) own free will. 5. A person who had dual nationality but renounces the nationality of the ROK with the permission of the Ministry of Justice. 6. A minor whose father or mother is a foreigner and who has been legitimized by him (or her) and who has acquired foreign nationality; however, the minor who is a wife or an adopted child of a Korean

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national is exceptional. Art. 13. If a man acquires foreign nationality and his wife or underage children also acquires his nationality, his wife or underage children will lose nationality of the ROK. Art. 14. A person who lost the nationality of the ROK according to the previous two Articles but has a domicile in the ROK can recover the nationality of the ROK by the permission of the Minister of Justice. Article 8 is also relevant to the wife and underage children of the person who recovers the nationality of the ROK. Art. 15. The regulations regarding naturalization, loss, and recovery of nationality shall be prescribed by the Presidential Decree. Art. 16. A person who loses the nationality of the ROK must transfer rights only for ROK nationals to ROK nationals within one year. Otherwise, the person will lose the rights. Supplemental Provision. This Law shall come into force from the date of its promulgation. Source: ROK (1948). 7. The 1997 Nationality Law of the ROK Art. 1 (Purpose) The purpose of this Law is to prescribe the requirements to become a national of the ROK. Art. 2 (Acquisition of Nationality by Birth) 1. A person falling under one of the following subparagraphs shall be a national of the ROK at the time of his or her birth: (1) A person whose father or mother is a national of the ROK at the time of his or her birth; (2) A person whose father was a national of the ROK at the time of his

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death, where his father died before his or her birth; and (3) A person who is born in the ROK, where both of parents are unknown or have no nationality. 2. An abandoned child found in the ROK shall be recognized as born in the ROK. Art. 3 (Acquisition of Nationality by Acknowledgement) 1. Where a person who is not a national of the ROK (hereafter referred to as a “foreigner”) is acknowledged by his father or mother who is a national of the ROK and falls under the following subparagraphs, the person may acquire the nationality of the ROK after reporting to the Minister of Justice: (1) The person shall be a minor pursuant to the Civil Law of the ROK; and (2) At the time of the person’s birth, the father or mother is a national of the ROK. 2. A person who makes a report under paragraph 1 shall acquire the nationality of the ROK at the time of reporting. 3. The reporting procedures under paragraph 1 and other necessary matters shall be determined by the Presidential Decree.

Art. 4 (Acquisition of Nationality by Naturalization) 1. A foreigner who has never acquired the nationality of the ROK may acquire the nationality of the ROK through permission of naturalization by the Minister of Justice. 2. The Minister of Justice shall, after determining whether persons meet the requirements for naturalization under Articles 5 through 7, issue permission of naturalization to the person who meets the requirements. 3. A person who is permitted naturalization under paragraph 1 shall acquire the nationality of the ROK at the time when the Minister of Justice issues

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permission. 4. Necessary matters for application procedure and determination under paragraphs 1 and 2 shall be determined by the Presidential Decree. Art. 5 (Requirements for General Naturalization) A foreigner shall meet the following requirements in order to acquire permission of naturalization except where prescribed by Articles 6 and 7: (1) A person shall have sustained domicile in the ROK for five or more years consecutively; (2) A person shall be of majority pursuant to the Civil Law of the ROK; (3) A person shall be of good conduct; (4) A person shall be able to sustain livelihood with his property, ability or family who lives together; and (5) A person shall have basic knowledge as a national of the ROK, such as Korean language ability and understanding about Korean custom. Art. 6 (Requirements for Simple Naturalization) 1. A foreigner who falls under one of the following subparagraphs and has sustained domicile in the ROK for three consecutive years may obtain permission of naturalization though he does not meet the requirements under subparagraph 1 of Article 5: (1) A person whose father or mother was a national of the ROK; (2) A person who was born in the ROK and whose father or mother was born in the ROK; and (3) A person who was adopted by a national of the ROK and was of majority at the time of adoption pursuant to the Civil Law of the ROK. 2. Where a foreigner whose spouse is a national of the ROK falls under one of the following subparagraphs, he may obtain permission of naturalization even though he does not meet the requirements under subparagraph 1 of Article 5: (1) A person who has sustained domicile in the ROK for not less than two years consecutively under the state of marriage with a spouse; and (2) A person for whom three years have lapsed after marriage with a

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spouse and who has sustained domicile in the ROK for not less than one year consecutively under the state of marriage. Art. 7 (Requirements for Special Naturalization) 1. A foreigner who falls under one of the following subparagraphs and presently has domicile in the ROK may be permitted naturalization without meeting the requirements under subparagraph 1, 2 or 4 of Article 5: (1) A person whose father or mother is a national of the ROK: Provided, a person who is adopted after he is of majority pursuant to the Civil Law of the ROK is excluded; and (2) A person who has rendered distinguished service to the ROK. 2. Where the Minister of Justice permits naturalization for a person who falls under paragraph 1 (2), he shall obtain approval of the President. Art. 8 (Concomitant Acquisition) 1. Where a foreigner applies for permission of naturalization, his child who is a minor pursuant to the Civil Law of the ROK may concurrently apply for the acquisition of nationality. 2. A person who applies for the acquisition of nationality under paragraph 1 shall acquire the nationality of the ROK at the time when the Minister of Justice issues permission of naturalization to his father or mother. 3. Application procedures under paragraph 1 and other necessary matters shall be determined by the Presidential Decree. Art. 9 (Acquisition of Nationality through Reinstatement of Nationality) 1. A foreigner who was a national of the ROK may acquire the nationality of the ROK through obtaining permission of reinstatement of nationality by the Minister of Justice. 2. The Minister of Justice shall not issue permission of reinstatement of nationality to a person who falls under one of the following subparagraphs, after scrutinizing a person who has applied for permission to the

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reinstatement of nationality: (1) A person who has inflicted any harm to the State and society; (2) A person who is defective in conduct; (3) A person who has lost or abandoned the nationality of the ROK for the purpose of evading military service; and (4) A person for whom the Minister of Justice regards permission for the reinstatement of nationality as inappropriate, for the sake of national security, maintenance of security, or public welfare. 3. A person who has obtained permission for the reinstatement of nationality under paragraph 1 shall acquire the nationality of the ROK at the time when the Minister of Justice issues permission. 4. Necessary matters concerning application procedures and scrutiny under paragraphs 1 and 2 shall be determined by the Presidential Decree. 5. The provisions of Article 8 shall be applied mutatis mutandis to permission for the reinstatement of nationality. Art. 10 (Renouncement Obligation of Foreign Nationality ) 1. A foreigner who has acquired the nationality of the ROK but maintains a nationality of a foreign country shall renounce the nationality of the foreign country within six months after the acquisition of the nationality of the ROK. 2. A person who does not abide by paragraph 1 shall lose the nationality of the ROK upon the completion of the time specified: Only the person who is under difficult conditions to fulfill the provisions of paragraph 1 despite his willingness and falls under the cases as determined by the Presidential Decree shall be excluded. Art. 11 (Restoration of Nationality) 1. When a person who has lost the nationality of the ROK pursuant to Article 10 2 renounces the nationality of foreign country within one year after the loss of nationality of the ROK, he may re-acquire the nationality of

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the ROK through reporting to the Minister of Justice. 2. A person who has reported under paragraph 1 shall acquire the nationality of the ROK at the time of reporting thereof. 3. The reporting procedures under paragraph 1 and other necessary matters shall be determined by the Presidential Decree. Art. 12 (Selection Option of Nationality for Dual National) 1. A person who has had the nationalities of both of the ROK and a foreign country by birth or by dint of the provisions of this Law (hereafter referred to as a “dual national”) shall select one nationality before he reaches his full twenty-two years of age; and a person who becomes a dual national after he reached his full twenty years of age shall select one nationality within two years pursuant to Articles 13 and 14: Provided, That, with regard to the completion of military service, a person who falls under the causes determined by the Presidential Decree shall select one nationality within two years after the cause is nullified. 2. A person who has not selected a nationality under paragraph 1 shall lose the nationality of the ROK after the lapse of the specified time. Art. 13 (Selection Procedure of Nationality of ROK) 1. A dual national who wants to select the nationality the ROK shall renounce his foreign nationality within the period under Article 12 1, and shall report to the Minister of Justice. 2. Requisites for the acceptance of a report and reporting procedures pursuant to paragraph 1 or other necessary matters shall be determined by the Presidential Decree.

Art. 14 (Abandonment Procedure of Nationality of ROK) 1. A dual national who wants to select the nationality of a foreign country may report the willingness to abandon the nationality of the ROK to the

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Minister of Justice within the period under 1 of Article 12: Provided, That, the person referred to in the proviso of the same paragraph of the same Article may report after the cause is nullified. 2. A person who has completed the report of abandonment of nationality pursuant to paragraph 1 shall lose the nationality of the ROK at the time of reporting. 3. Reporting procedure under paragraph 1 and other necessary matters shall be determined by the Presidential Decree.

Art. 15 (Loss of Nationality by Acquisition of Foreign Nationality) 1. A national of the ROK who has voluntarily acquired the nationality of a foreign country shall lose the nationality of the ROK at the time of acquisition of the foreign nationality. 2. A national of the ROK who falls under one of the following subparagraphs shall lose the nationality of the ROK retroactively at the time of acquisition of the foreign nationality, if he does not report the willingness to keep the nationality of the ROK to the Minister of Justice within six months after the acquisition of the foreign nationality: (1) A person who has acquired the nationality of a spouse through marriage with a foreigner; (2) A person who has acquired the nationality of an adoptive father or mother through an adoption by a foreigner; (3) A person who has acquired the nationality of a father or mother through acknowledgement by a foreign father or mother; and (4) A minor child or spouse of a person who shall lose the nationality of the ROK through the acquisition of a foreign nationality, who has acquired the foreign nationality under laws of the foreign country. 3. For a person who has lost the nationality of the ROK due to the acquisition of that of a foreign country, where its acquisition date is unknown, it shall be presumed to be the date on which the foreign country

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first issues a passport to him. Art. 16 (Administration on Person in Loss of Nationality) 1. A person who has lost the nationality of the ROK (except persons who have reported the abandonment of nationality under Article 14) shall report the loss of nationality to the Minister of Justice. 2. Where a public official finds a person who has lost the nationality of the ROK in the pursuit of his duties, he shall notify the Minister of Justice without delay. 3. Where the Minister of Justice finds a person who has lost the nationality of the ROK in the pursuit of his duties or has received the report or notification of the loss of nationality under paragraphs 1 and 2, he shall notify the census register office and resident registration office thereof. 4. Reporting and notification procedures and other necessary matters under paragraphs 1 through 3 shall be determined by the Presidential Decree.

Art. 17 (Notification in Official Gazette) 1. Where the acquisition and loss of the nationality of the ROK has occurred, the Minister of Justice shall make public notification in an official Gazette. 2. Matters notified in an official Gazette pursuant to paragraph 1 shall be determined by the Presidential Decree. Art. 18 (Change of Right for Person in Loss of Nationality) 1. A person who has lost the nationality of the ROK shall not possess the rights afforded only to the nationals of the ROK from the time of loss of the nationality. 2. Where a person has acquired the transferable rights at the time when he was a national of the ROK, from among the rights under paragraph 1, he

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shall transfer them to a national of the ROK within three years unless otherwise prescribed by Laws and subordinate statutes related to the rights. Art. 19 (Reporting by Legal Agent) With regard to application or reporting under this Law, where a person who wants to apply or report is under the age of fifteen, a legal agent shall act for him. Art. 20 (Adjudication of Nationality) 1. Where it is unclear whether a person acquires or holds the nationality of the ROK, the Minister of Justice may determine it through the screening. 2. Screening, determination procedures, and other necessary matters under paragraph 1 shall be determined by the Presidential Decree.

Supplemental Provision Art. 1 (Enforcement Date) This Law shall enter into force six months after its promulgation. Art. 2 (Transitional Measures on Application for Permission of Naturalization) With regard to a person who has applied for permission of naturalization, reinstatement of nationality, or permission of abandonment of nationality under the previous provisions before this Law enters into force, the previous provisions shall govern. Art. 3 (Transitional Measures on Reinstatement or Restoration of Nationality) 1. The amended provisions of Article 9 shall apply to the procedure through which a person who has lost or abandoned the nationality of the ROK before this Law enters into force restores the nationality of the ROK. 2. The amended provisions of Article 11 shall apply to a person who has lost the nationality of the ROK, among those under paragraph 1, by reason that he does not renounce a foreign nationality within six months after he acquires the nationality of the ROK.

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Art. 4 (Transitional Measures on Renouncement Obligation of Foreign Nationality for Person Who has Acquired Nationality) The amended provisions of Article 10 shall apply to a person who has acquired the nationality of the ROK before this Law enters into force and for whom six months have not passed from the date of acquisition until the enforcement date of this Law. Art. 5 (Transitional Measures on Selection Option and Procedure of Nationality for Dual National) The amended provisions of Articles 12 through 14 shall also apply to a person who has had the nationalities of both of the ROK and a foreign country before this Law enters into force (except those who have obtained permission for the abandonment of nationality): Provided, That, with regard to a person who is over twenty years of age as of the enforcement date of this Law, the enforcement date of this Law shall be the starting date for the selection period of nationality under 1 of Article 12. Art. 6 (Transitional Measures on Administration and Change of Right of Person in Loss of Nationality) The amended provisions of Articles 16 and 18 shall also apply to a person who has lost the nationality of the ROK before this Law enters into force. Art. 7 (Special Cases of Acquisition of Nationality for of Matrilineal Persons by Adoption of Bilateral Jus sanguinis) 1. A person who has been born to a mother with nationality of the ROK since 10 years before this Law enters into force and falls under one of the following subparagraphs may acquire the nationality of the ROK through reporting to the Minister of Justice within 3 years as determined by the Presidential Decree: (1) A person whose mother is currently a national of the ROK; and (2) A person whose mother was a national of the ROK at the time of her death, where his mother died. 2. With regard to reporting under paragraph 1, his (or her) legal agent shall

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act for the child. 3. A person who failed to report within the period under paragraph 1 due to natural disaster or other unavoidable causes may acquire the nationality of the ROK through reporting to the Minister of Justice within three months after the removal of such cause. 4. A person who has reported under paragraph 1 or 3 shall acquire the nationality of the ROK at the time of reporting. Source: The Ministry of Legislation, ROK (Korea 1997). 8. The Law on the Entry, Exit, and Legal Status of Overseas Koreans Art. 1 (Purpose) The purpose of this Law is to ensure overseas Koreans the entry into and departure from the ROK and the legal status therein. Art. 2 (Definitions) The term “overseas Korean” in this Law means a person who falls under any of the following subparagraphs: 1. A national of the ROK who obtains the right of permanent residence in a foreign country or is residing in a foreign country with a view to living permanently there (hereafter, referred to as an “overseas Korean national [Jaeoe Gungmin]”); and 2. A person prescribed by the Presidential Decree of those who have held the nationality of the ROK or of their lineal descendants, who obtains the nationality of a foreign state (hereafter referred to as a “Korean with a foreign nationality [Oegukgukjeok Dongpo]”). Art. 3 (Scope of Application) This Law shall apply with respect to the entry into and departure from the ROK and the legal status therein of Overseas Korean nationals and Koreans with a foreign nationality who have the status of sojourn as an overseas Korean (hereafter referred to as the ‘status of sojourn as an overseas Korean”) out of the status of sojourn under Article 10 of the Entry and Exit Control Act.

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Art. 4 (Duty of Government) The Government shall give overseas Koreans necessary support so that they may not be unfairly regulated or treated in the ROK. Art. 5 (Grant of Status of Sojourn as Overseas Korean) (1) The Minister of Justice may, upon receipt of an application, grant the status of sojourn as overseas Koreans to ethnic Koreans of foreign nationality who wish to engage themselves in activities in the ROK. (2) Where an ethnic Korean of foreign nationality who applies for the status of sojourn as an overseas Korean might impair the security, order, public welfare, foreign relations and other national interests of the ROK, the Minister of Justice shall not grant him the status of sojourn as an overseas Korean. (3) In granting the status of sojourn as an overseas Korean under paragraphs (1) and (2), the Minister of Justice shall consult with the Minister of Foreign Affairs and Trade as prescribed by the Presidential Decree. (4) The requirements for obtaining the status of sojourn as an overseas Korean and the scope of activities as such shall be prescribed by the Presidential Decree. Art. 6 (Report of Korean Address) (1) Overseas Korean nationals and Koreans with a foreign nationality who enter the ROK with the status of sojourn as overseas Koreans may, if necessary to be under the application of this Law, decide a residence in the ROK and report the Korean address to the head of a Local Immigration Office (hereafter referred to as the “head of an Office”) or the head of a branch office of a Local Immigration Office (hereafter referred to as the “head of a branch office”) having jurisdiction over it. (2) Where a Korean address reported under paragraph (1) is changed, it shall be reported to the head of the Office or the head of the branch office

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concerned within fourteen days. (3) Items to be stated in the report of a Korean address, accompanying documents, and other matters necessary concerning the report procedure shall be prescribed by the Presidential Decree. Art. 7 (Issuance of Korean Address Report Card, etc.) (1) The head of an Office or the head of a branch office shall grant the report number of a Korean address to an overseas Korean national and ethnic Korean of foreign nationality who report their Korean addresses in accordance with the provisions of Article 6, and issue the Korean address report card of the Korean national residing abroad to the Korean national residing abroad, and the Korean address report card of the Korean with a foreign nationality to the Korean with a foreign nationality, respectively. (2) On the Korean address report card, the report number of Korean address, name, sex, date of birth, nationality, residing country, Korean address, etc. shall be stated. (3) The head of an Office or the head of a branch office shall draw up and keep a Korean Address Register and other related documents, as prescribed by the Presidential Decree. (4) A person who intends to receive a reissue of Korean address report card after the first issuance thereof for the loss, damage, or other reasons as prescribed by the Presidential Decree shall apply to the head of an Office or the head of a branch office for the reissue thereof. (5) The head of an Office or the head of a branch office may issue a certificate of Korean address report to a person who has reported the Korean address under Article 6 under the conditions as prescribed by the Ordinance of the Ministry of Justice. (6) Persons who apply for the issue and reissue of the Korean address report card under paragraphs (1) through (4), or for the issuance of the certificate

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of Korean address report under paragraph (5) shall pay the fee as prescribed by the Ordinance of the Ministry of Justice. Art. 8 (Return of Korean Address Report Card) In case where the necessity for an overseas Korean to possess the Korean address report card does not exist any longer, he shall return it to the head of an Office or the head of a branch office as prescribed by the Presidential Decree within fourteen days after the reason arises. Art. 9 (Relation with Resident Registration, etc.) In case where a resident registration card, a certified copy and abstract of resident registration, a foreigner registration card, or a certificate of foreigner registration is required in the procedures provided in Laws and subordinate statutes and business relations, etc., a Korean address report card or a certificate of Korean address report may be the substitute thereof. Art. 10 (Immigration and Sojourn) (1) The ceiling in the length of stay under the status of sojourn as an overseas Korean shall be two years. (2) The Minister of Justice may grant permission to extend the length of sojourn to Koreans of foreign nationality who wish to continue their sojourn in the ROK exceeding the ceiling of length of sojourn as referred to in paragraph (1), under the conditions as prescribed by the Presidential Decree. (3) In case where an ethnic Korean of foreign nationality who has reported the Korean address departs from and reenters the ROK during the period of his sojourn, reentry permission under Article 30 of the Entry and Exit Control Law shall not be required. (4) An ethnic Korean of foreign nationality who has reported the Korean address or the change of such address shall be deemed to have completed the foreigner registration under Article 31 of the Entry and Exit Control Law and the report on change of place of sojourn under Article 36 of the

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same Law. (5) Free employment and other economic activities of Koreans with a foreign nationality who have obtained the status of sojourn as an overseas Korean shall be allowed within the scope that they do not impair social order or economic stability. Art. 11 (Real Estate Transactions, etc.) (1) A Korean with foreign nationality who reports the Korean address shall have equal rights with a Korean national in the acquisition, possession, utilization, and disposal of real estate in the ROK except the cases as referred to in Article 4 (2) 1 of the Foreigner’s Land Acquisition Law: Provided, That this shall be subject to the report under Articles 4 (1), 5, and 6 of the Foreigner’s Land Acquisition Law. (2) In case where an ethnic Korean of foreign nationality who has made a report of the Korean address or disposes of by sale the real right of real estate, which is registered or is subject to being registered in the name of a title transferee under the agreement of title transfer prior to the entry into force of the Law on the Registration of Real Estate under Actual Titleholder’s Name, in his real name pursuant to Article 11 (1) and (2) of the same Law, within one year after this Law comes into force, Article 12 (1) and (2) of the same Law shall not apply. Art. 12 (Financial Transactions) An overseas Korean who reports the Korean address shall have equal rights with a Korean national who is a resident under the Foreign Exchange Transactions Law in the use of domestic financial institutions such as opening deposit or installment savings account, application of interest rates, deposit and withdrawal, etc.: Provided, That with respect to Article 18 of the Foreign Exchange Transactions Law, this provision shall not apply. Art. 13 (Foreign Exchange Transaction) In case where an overseas Korean national exports or pays abroad payment means falling under any of the following subparagraphs, the Korean

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national residing abroad shall be equally treated with an ethnic Korean of foreign nationality in the application of Articles 15 and 17 of the Foreign Exchange Transactions Law: 1. Proceeds from the disposal either by sale or through land expropriation of the real estate in the ROK which an overseas Korean national possessed before residing abroad; and 2. Payment means imported or paid from a foreign country into the ROK. Art. 14 (Medical Insurance) In case where an overseas Korean who reports his Korean address sojourns in the ROK not less than ninety days, medical insurance may be applied to him pursuant to Laws and subordinate statutes related to medical insurance. Art. 15 (Pension) An ethnic Korean of foreign nationality is entitled to receive the pension despite Article 64 (4) of the Law on the Civil Service Pension, Article 33 (4) the Law on the Military Pension, and Article 42 (1) of the Law on the Private School Teachers’ Pension. Art. 16 (Compensation Payment to Persons of Distinguished Services to State, Persons of Distinguished Services to Independence and Their Bereaved Family Members) An ethnic Korean of foreign nationality is entitled to receive the compensation under the Law on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State or the Law on the Honorable Treatment of Persons of Distinguished Services to Independence. Art. 17 (Fine for Negligence) (1) Any person who violates the provisions of Article 6 (2) shall be punished by a fine for negligence not exceeding two million won. (2) Any person who violates the provisions of Article 8 shall be punished by

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a fine for negligence not exceeding one million won. (3) The fine for negligence as referred to in paragraph (1) or (2) shall be imposed and collected by the head of an Office or the head of a branch office under the conditions as prescribed by the Presidential Decree. (4) Any person who is dissatisfied with the disposition of the fine for negligence under paragraph (3) may make an objection against the head of an Office or the head of a branch office within thirty days after he is informed of such a disposition. (5) If a person who is subject to a disposition of the fine for negligence under paragraph (3) makes an objection under paragraph (4), the head of an Office or the head of a branch office shall notify it without delay to the competent court, which, upon receipt of such a notification, shall hold a trial of the case under the Non-Contentious Case Litigation Procedure Law. (6) If no objection is made and no fine for negligence is paid in the period as referred to in paragraph (4), it shall be collected according to the examples of disposition on national taxes in arrears.

Supplemental Provision This Law shall enter into force three months after the date of its promulgation. Source: The Ministry of Legislation, ROK (Korea 1999a).

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