Gendered borders: The historical formation of women's nationality under law in Taiwan

Positions

Volumn 17, Issue 2, 2009, Pages 289-314

  Chen, Chao Ju ^a  

^a NATIONAL TAIWAN UNIVERSITY   (Taiwan)

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[No Author keywords available]

Indexed keywords

EID: 70549092984     PISSN: 10679847     EISSN: 15278271     Source Type: Journal    
DOI: 10.1215/10679847-2009-003     Document Type: Review

References (49)

1. Nira Yuval-Davis and Floya Anthias identify five representations of the intertwined relationships among women, nation, and state. See Nira Yuval-Davis and Floya Anthias, eds. , Woman-Nation-State (London: Macmillan, 1989), 7
2. See also Nira Yuval-Davis, Gender and Nation (London: Sage, 1997)
3. The most striking connection between women and nation may be the fact that women's bodies become battlefields in armed conflicts, hence rendering women victims of sexualized violence in defense of national identities and boundaries. For a discussion of women as victims of sexualized violence in armed conflicts and international law, see Catharine A. MacKinnon, Are Women Human? And Other International Dialogues (Cambridge, MA: Belknap Press, 2006)
4. As American soldiers' torture of Arabs in the Iraq War has exemplified, men of an invaded country can be sexually violated on both physical and symbolic levels by both men and women of the invading country. See Walter A. Davis, Death's Dream Kingdom (Ann Arbor, MI: Plato Press, 2006), 30-39. (My thanks go to one of my reviewers for pointing this out and the reference. ) Yet, men and women may suffer war-related sexual violence differently. For instance, in war in the former Yugoslavia, Muslim and Croat women were repeatedly and systematically raped and impregnated so as to bear Serbian babies and to advance the cause of ethnic cleansing. The Rome Statute of the International Criminal Court has identified forced pregnancy as a crime against humanity and as genocide, and the International Criminal Tribunal for the former Yugoslavia in The Hague and the International Criminal Tribunal for Rwanda have prosecuted forced pregnancy as a crime against humanity and as genocide
5. Peter Fitzpatrick, ed. , Nationalism, Racism, and the Rule of Law (Aldershot, UK: Dartmouth, 1995), xiii - xvii
6. For a discussion on law and the construction of national borders (borders of identity, territory, and power), see Mary L. Dudziak and Leti Volpp, eds. , Legal Borderlands: Law and the Construction of American Borders (Baltimore: Johns Hopkins University Press, 2006)
7. To the extent that they identify the legal status of an individual in light of her or his state membership, the terms nationality and citizenship signify the same concept but reflect two different legal frameworks: citizenship is confined mostly to domestic legal forums, whereas nationality is connected to the international law forum. See Kim Rubenstein and Daniel Adler, "International Citizenship: The Future of Nationality in a Globalized World," Indiana Journal of Global Legal Studies 7 (2000): 521 - 26
8. See also Karen Knop and Christine Chinkin, "Remembering Chrystal MacMillan: Women's Equality and Nationality in International Law," Michigan Journal of International Law 22 (2001): 536 n. 74. However, this distinction between citizenship and nationality becomes debatable as the accepted parameters of citizenship's location is questioned and extended
9. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992)
10. Ayelet Shachar, "Whose Republic? Citizenship and Membership in the Israeli Polity," Georgetown Immigration Law Journal 13 (1999): 233
11. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace and World, 1951), 266 - 98. Chief Justice of the United States Supreme Court Earl Warren repeated this view (that citizenship is man's basic right for it is nothing less than the right to have rights) in his dissenting opinion in Perez v. Brownell, 356 U. S. 44, 64 (1958)
12. See Linda Racioppi and Katherine O'Sullivan, "Engendering Nation and National Identity," in Women, States, and Nationalism: At Home in the Nation? ed. Sita Ranchod-Nilsson and Mary Ann Tetreault (New York: Routledge, 2000), 29. See also accompanying texts at 28-30 for a feminist critique of Anderson's theory
13. Not only did Virginia Woolf contend that she had no country, she further declared, "As a woman, I want no country. As a woman, my country is the whole world. " But Virginia Woolf, as a white, middle-class British national, had always had a British identity (however complicated it may have been); she lived in the motherland of an empire that never had to wage an anticolonial struggle internally. See Catherine Hall, "Gender, Nations, and Nationalisms," in People, Nation, and State: The Meaning of Ethnicity and Nationalism, ed. Edward Mortimer (New York: I. B. Tauris, 1999), 45-55
14. Knop and Chinkin, "Remembering Chrystal MacMillan," 545
15. For a discussion on female migration under globalization, and "the global nanny chain" in particular, see Barbara Ehrenreich and Arlie Russell Hochschild, eds. , Global Woman: Nannies, Maids, and Sex Workers in the New Economy (New York: Metropolitan/Owl Books, 2004)
16. For a brief introduction on women and nationality under international law and national laws, see Christine Chinkin, "Women, Nationality and Citizenship," in Women 2000 and Beyond (UN Division for the Advancement of Women, 2003), 1-22
17. Lung-chu Chen and W. M. Reisman assert that Taiwanese were awarded a period of two years to opt for Chinese nationality and to move to the Chinese mainland. See Lung-chu Chen and W. M. Reisman, "Who Owns Taiwan: A Search for International Title," Yale Law Journal 81 (1972): 610
18. Tay-sheng Wang notes that, in practice, those inhabitants who did not want to become Japanese subjects had to report their selection of Qing nationality to the colonial authorities within two years. See Tay-sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 1895 - 1945: The Reception of Western Law (Seattle: University of Washington Press, 2000), 211 n. 44
19. One of the issues that confused the colonial authorities is the vague language of Article 5 of the Treaty of Shimonoseki, which opens the treaty to various legal interpretations of when Taiwan's inhabitants acquire Japanese nationality. See Asano Toyomi, "Nihon teikoku niokeru Taiwan 'hontōjin' to 'shinkokujin' no hasama - kokuseki sentakuken to Taiwan hōsei" ("Between 'Taiwanese' and 'Qing Nationals' under the Japanese Empire: The Right to Select Nationality and Taiwan's Legal System"), Gendai Taiwan Kenkyū (Modern Taiwanese Studies) 19 (2000): 76-79
20. Robert S. Chang and Keith Aoki, "Centering the Immigrant in the Inter/national Imagination," California Law Review 85 (1997): 325
21. See Asano Toyomi, " 'hontōjin' to 'shinkokujin' no hasama," 74 - 79, for a discussion of the deportation of the single male without a family
22. Koshu is a unique Japanese concept that was first introduced to Taiwan in 1906. "Family head" and koshu are two similar but distinct concepts. See Wang, Legal Reform in Taiwan, 161 - 63, for a comparative discussion of koshu and the family head in Taiwan under Japanese colonial rule
23. Yokota Kisaburo, Heiji Kokusaihō Dainibu (International Law in Peacetime) (Tokyo: Nihon Hyōronsha, 1943), 42
24. Nancy Cott's exact words are: "It was as if each male citizen who married a foreigner 'annexed' and naturalized her, as the United States naturalized by treaty the inhabitants of territory conquered or purchased. " See Nancy Cott, "Marriage and Women's Citizenship in the United States, 1830 - 1934," American Historical Review 103 (1998): 1457
25. Kif Augustine-Adams, "Gendered States: A Comparative Construction of Citizenship and Nation," Virginia Journal of International Law 41 (2000): 114
26. For definitions of naichijin, hontōjin, and banjin, see Wang, Legal Reform in Taiwan, 9, 210 - 11 n. 43
27. "Japanese mainlanders" is a conventional translation for naichijin. Japan proper was called "mainland" (naichi) in contrast to the colonies, and those Japanese who lived in the colonies were called "mainlanders" (naichijin) by themselves and by the colonized people. See Wang, Legal Reform in Taiwan, ibid. , 220 n. 37
28. For a discussion on intermarriage between Japanese and the Aborigines, see Paul Barclay, "Cultural Brokerage and Interethnic Marriage in Colonial Taiwan: Japanese Subalterns and Their Aborigine Wives, 1895 - 1930," Journal of Asian Studies 64 (2005): 323-360
29. Chun-Hui Qiu, "Rizhi shiqi neitai gonghun wenti chutan" ("A Preliminary Investigation into the Problem of Intermarriage between Taiwanese and Japanese during the Japanese Colonial Period"), in The Editorial Board of Cao Yong-he xiansheng bashi shouqing lunwen ji (A Collection of Papers in Honor of Professor Cao Yong-he) (Taipei: Lexue, 2001), 217
30. For a discussion on the legal history of antimiscegenation laws in the United States and the related interactions of racism and sexism, see Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law - An American History (New York: Palgrave MacMillan, 2002)
31. To be precise, we should note that intermarriage between a Japanese woman and a Taiwanese man was partially legalized in 1920, when the colonial government issued a policy change that permitted a mainlander Japanese woman to be registered in her Taiwanese husband's household. However, official authorities in mainland Japan did not fully comply with this policy made by the local colonial government in Taiwan (Qiu, "neitai gonghun wenti chutan," 219). To resolve issues regarding interracial marriage, the so-called intermarriage law came into effect on March 1, 1933. This law enabled an interethnic couple to conduct household registration and made their marriage a legal one
32. The rule discussed applied to children of the Japanese and the Taiwanese. The issue involving children of the Japanese and the Aborigines, or of the Taiwanese and the Aborigines, is a subject in need of further research. The colonial authorities did not have a unified approach to the issue, but it seemed that Aboriginal customs were paid a certain amount of respect. See Tay-sheng Wang, Taiwan-fa de duanlie yu lianxu (Discontinuity and Continuity of Taiwan's Legal System) (Taipei: Yuanzhao, 2002), 255-256
33. When the 1929 Nationality Act of the ROC was promulgated and enacted in mainland China, Taiwan was a colony of Japan and the overwhelming majority of the Taiwanese were Japanese nationals. As Wang argues, this order, which assigned the nationality of the ROC to the Taiwanese, is indeed absurd: how can the Taiwanese "resume" a nationality that they never had? See Tay-sheng Wang, Taiwan-fa de duanlie yu lianxu (Discontinuity and Continuity of Taiwan's Legal System) ibid. , 38 n. 70
34. None of these documents mentions the issue of nationality. Japan's government had to deal with issues of nationality resulting from its renouncement of sovereignty over Taiwan. The Japanese government and legal authorities held the opinion that all Taiwanese, including those Japanese who entered Taiwanese households through marriage or adoption, lost their Japanese nationality and obtained the nationality of the ROC. For a discussion of these issues, see Asakawa Akihiro, "Meiji kokusekihō kara shōwa kokusekihō he kyū shokuminchi shusshinsha no kokuseki shori wo megutte" ("The Nationality Problem of Former Colonized People in Postwar Japan and the Amendment of the Meiji Nationality Law into the Showa Nationality Law"), Nihon Gakuhō (Japan Journal) 21 (2002): 1-19
35. "Convention on the Nationality of Married Women," United Nations Treaty Series 309:65-102, entered into force on August 11, 1958. The GMD government ratified this convention in 1958
36. For a discussion on the gendered construction of parenthood as "voluntary fatherhood versus mandatory motherhood" under Taiwanese law, see Chao-ju Chen, "Mothering under the Shadow of Patriarchy: The Legal Regulation of Motherhood and Its Discontents in Taiwan," National Taiwan University Law Review 1 (2006): 45-96
37. Unwed U. S. citizen-fathers, in order to transmit citizenship to their foreign-born children, are required by U. S. Code 8, § 1409(a) (1986), to acknowledge and legitimate these same children by fulfilling certain statutory conditions. Declared constitutional in Miller v. Albright, 523 U. S. 420 (1998) and confirmed by Nguyen v. INS, 121 S. Ct. 2053 (2001), this provision assumes that maternity is established immediately upon the birth of a mother's child (biologically mandated), whereas an unwed man is not legally considered a father until he takes affirmative steps to assume postbirth parental responsibility for this child (legally formulated). One of the implications of this gendered jus sanguinis doctrine is the exclusion of mixed-race children born outside of U. S. citizenry. For related discussions, see Erin Chlopak, "Mandatory Motherhood and Frustrated Fatherhood: The Supreme Court's Preservation of Gender Discrimination in American Citizenship Law," American University Law Review 51 (2002): 967-998
38. Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998)
39. For points against the notion of gender-neutrality as gender equality, see Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987)
40. and Catharine A. MacKinnon, Women's Lives, Men's Laws (Cambridge, MA: Belknap Press, 2005)
41. MacKinnon, Feminism Unmodified, 73. The quote is: "A few husbands are like most wives - financially dependent on their spouses. "
42. Hsiao-Chuan Hsia, "International Capital and the Trade in Asian Women - The Case of 'Foreign Brides' in Taiwan" in Women and Globalization, eds. Delia Aguilar and Anne Lascamana (Amherst, New York: Humanity Books, 2004), 181-229
43. Inspired by feminist legal historian Reva Siegel's work, Joan Williams traces the transformation of the ideology of domesticity and concludes that it is a development "from status to affect. " See Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do about It (New York: Oxford University Press, 2000), 13-39
44. See Leti Volpp, "Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage," UCLA Law Review 53 (2005): 405-483
45. Pei-chia Lan, Global Cinderellas: Migrant Domestics and Newly Rich Employers in Taiwan (Durham, NC: Duke University Press, 2006), 243
46. Some scholars have proposed alternatives with which to contest the assumption that citizenship is necessarily a national enterprise, including the possibilities of dual and multiple nationality, transnational or supranational citizenship, global citizenship, postmodern citizenship, and democratic citizenship. For a discussion of these alternative citizenship concepts, see Linda Bosniak, "Citizenship Denationalized," Indiana Journal of Global Legal Studies 7 (2000): 488 - 507
47. Catherine Dauvergne has also reminded us of the importance of migration laws and migration policy in the regulation of women's community membership. See Catherine Dauvergne, "Citizenship, Migration Laws, and Women: Gendering Permanent Residency Statistics," Melbourne University Law Review 24 (2000): 280-309
48. Leti Volpp, " 'Obnoxious to Their Very Nature': Asian Americans and Constitutional Citizenship," Asian Law Journal 8 (2001): 84
49. Chang and Aoki, "Centering the Immigrant," 310