Abstract

This article traces the evolution of Japan-Korea migrations from 1876 to the 1970s, emphasizing the political use of Western-style international, civil and administrative law in facilitating Japanese settlement and colonial control in Korea, but resulted in a failed integration. First, it depicts how Japan imposed unequal treaties and implemented legal reforms to accelerate Japanese migration and economic dominance in Korea before formal annexation in 1910. Second, it analyzes Japan’s attempt at semi-assimilation of Koreans through administrative law enforcement and a differentiated status. Third, it points out the reverse migration of Koreans to Japan—known as Zainichi—stressing their legal marginalization and identity struggles in postwar Japan, being rejected in Japan and with the nearly impossible return. This paper underscores how law both enabled colonial ambitions and revealed the limits of cultural assimilation.

Introduction

On September 20th, 1875 occurred the Un’yo Incident, that is to say, the prelude to modern relations between Japan and Korea. This diplomatic small-scale event, that one could describe as a military skirmish, is nonetheless relevant in depicting the unequal relations and the greed that Japan has toward Korea at the time: the Un’yo was just sent on a surveillance mission on the Korean shores of Ganghwa when it encountered the Korean fortification of Yeongjong Island (Neff, 2024). The Japanese ship proved its military superiority due to its modern weaponry inherited from the West. This illustrates two major points. First, it predicts the unequal integration of Western models in both countries: Japan had already “opened” to the West with the arrival of Commodore Perry in 1853 and the Treaty of Kanagawa in 1854, whereas Korea had solely been approached by France and the United States respectively in 1866 and 1871 (Neff, 2019), but had never signed yet any international treaty in the Western legal tradition. Second, it proves that even though both States might be near, they did not maintain any diplomatic relation: in spite of a long-lasting history of migration between Japan and Korean peninsula, there was at the time no major Japanese diaspora in Korea, nor was there Korean population in Japan (Lie, 2013). This incident brought about the Treaty of Ganghwa in 1876, a landmark for the start of modern Japan-Korea relations and Japan-Korea migration flaws (Open Wiki, n.d.).

Thus, this paper traces the history of Japan-Korea migrations from 1876 to the 1970s, detailing how law was politically enforced in a colonization process for settlement and assimilation purposes but proved its limits in the decolonization process, resulting in a failed assimilation. In the first place, it demonstrates how Japan used the newly acquired Western legal system—in this case, international law and civil law—to facilitate the influx of Japanese settlers in the Korean Peninsula through the provision of economic and institutional assets between 1876 and 1910. In the second place, it stresses the colonial control by Japan over Korea through the assimilation of Korean society and the implementation of administrative law, yet with a distinct racial status from 1910 to 1945. In the third place, this paper underlines the other side of the migrations from Korea to Japan in a decolonial perspective, and the legal and identity struggles of the Zainichi community in Japan from 1945 to the 1970s. 

International Law and Civil Law as Drivers for Settlement

In the first place, I argue that the Empire of Japan used its imported Western legal system to accelerate the influx of Japanese settlers, taking advantage of Joseon Korea’s non-Western legal provisions on a state level. In fact, this is notably due to the conception of law as such in both States that preceded their interactions. In 1876, Japan had already started its journey toward Western legal “modernization”, launching the Iwakura mission from 1871 to 1873 to learn from the West. Japan had already started designing the areas of law to support any type of migrations and colonization, that is to say international law to maintain relations with states, and civil law to regulate the life of settlers and colonized. It had already stepped into the territory of international law since the creation of the Japanese Ministry of Foreign Affairs in 1869 and had already started to study the enforcement of Western civil law as Gustave Emile Boissonade de Fontarabie came in 1874 to Japan to adapt the French civil code (Van Der Berg, 2018). This contrasts heavily with the Korean legal system at the time, far-off from any Western conception. In Joseon Korea, law was regarded as the equation of the sovereign’s rule, that is to say the King (Kim, 2007); therefore, law was regarded as a matter of regulation and was not meant to be tried in court. The paramount text of law, the Taejong heo’tong, i.e. Grand Code for Ruling the State, could not for instance regulate private matters such as private economy (Kim, 2007). The sole ethical character of these laws thus created gaps in regulating private relations between Korean people. And these are the very gaps that Japan would use to make their way in Korea through the integration of precise civil rights within unequal treaties. This starts off with the very Treaty of Ganghwa in 1876, in which one can already decipher the imperial will of Japan. Beyond proclaiming Korea’s sovereignty (Treaty of Ganghwa Island, 1876, art. 1) and therefore integrating it de facto in the international legal system for more advantageous unequal treaties on Japan’s side, it opened Korea for Japanese trade, providing merchants with the right to conduct surveys of the coasts (ibid. art. 6), trade freely without intervention of the Korean State (ibid. art. 9), have residence in treaty ports (ibid. art. 8), and even be granted the right of extraterritoriality (ibid. art. 10). The latter is particularly interesting, as it showcases the attitude Japan had toward Korea: it was to demonstrate that because Korea lacked legal areas in civil law, then Japan had the right to “complete it” as a “modern” country.

Then, beyond demonstrating a posture of superiority through law, the latter articles legitimized and incentivized the settlement of Japanese people in the Korean peninsula for business and economic purposes, coordinating with the Korean elites. After the Sino-Japanese War of 1894-1895, Busan quickly became a center for foreign trade (Open Wiki, n.d.) with Japanese and Hanja — Chinese — as the main medium of communication as stated in the Treaty of Ganghwa (Treaty of Ganghwa Island, 1876, art. 3). The regulation over language was meant to exclude the grassroots Korean merchants from trading with the Japanese to start targeting the Korean business elites and the institutions. Therefore, Japan was attempting at the time to reach the core of the Korean power through the deployment of economic settlers over the territory and creating bonds with officials. This culminated in the Eulsa Treaty of 1905 that places Korea under the protectorate of Japan, and institutes under Article 3 that a high-ranking official entitled the Resident-General would be sent to Seoul as a main diplomatic envoy to converse with the King (Eulsa Treaty, 1905, art. 3). It is noteworthy to say an unequal treaty favored Japanese settlement in a very distinct way: now that Korea was under Japanese protectorate, there was more legitimacy for Japanese people to buy and own land to “protect” it. Starting with the progressive acquisition of Korean lands, both individuals and companies were actively pushing for it, supported by Japanese legislation in a context of labor shortage in Japanese rural areas (Moskowitz, 1974). A land reform of 1906 ended the partial Korean land-ownership in order to apply the Roman law’s property rights (Open Wiki, n.d.). The ownership was now entitled to individuals on written proof, which stronghanded them, under the idea of “modernization” to improve irrigation systems, that most of the Korean peasantry could not afford. This resulted in an impoverishment of Korean farmers that were forced to leave their land to the highest bidder (Open Wiki, n.d.). Furthermore, the acquisitions were not the mere result of individual agreements: the settlement of newfangled Japanese landowners was supported by Japanese companies, usually semi-governmental corporations such as the Oriental Development Company (ODC). This company, capitalized at 10,000,000 ¥ and subsidized by 300,000 ¥ by the government for 8 years (Moskowitz, 1974). The two main objectives of the company were to “modernize” Korea so that it can meet the needs of the Japanese mercantilist economy; to accelerate the departure of farmers for Korea to support the colonial project, as farmers were considered more permanent than merchants. Therefore, the ODC planned to help 30,000 Japanese farmers and middle-level entrepreneurs in Korea to scatter all over the country so that Japan can have a strong hand over it (Moskowitz, 1974). Through both individual ownership and company hands, by 1910, nearly 7 to 8% of the whole Korean arable lands were owned by Japanese people (Open Wiki, n.d.). 

Another result of the Eulsa Treaty of 1905 was the migration of part of the Japanese political and intellectual elite to seep into the Korean administrative and power structures. Through the status of protectorate, Gyeongseong was advised to let the Japanese have control over the police in 1905, laying the foundations for the Military Police Reign Era in which the Japanese had even control over Korean media since the drafting of the Newspaper law that forbade the publication of local newspapers (Open Wiki, n.d.). In 1910 was promulgated the Japan-Korea Treaty of 1910 and the formal annexation of Korea; 172,000 Japanese were living in Korea, making it the first Japanese overseas community (Kimura, 1995).

The Implementation of Administrative Law as Semi-Assimilation

In the second place, I posit that since formal colonization had started through settlements, Japan enforced administrative law in Korea not to accompany settlers but to initiate a semi-assimilation of the Korean people in the “Japaneseness.” Through the term of “semi-assimilation,” I mean the integration of Koreans in the Japanese cultural and legal framework on a different racial status; “Japaneseness” refers here to the framing of Japanese identity based on cultural and racial characteristics embedded in law. Let us decipher this very process. That semi-assimilation laid on two main principles. First, administrative law was a manner to salvage Japanese legal traditions and customs—through a strong position of customary law, and therefore, the idea of Japaneseness (Van Der Berg, 2018). Second, this Japaneseness, however, could not be fully reached due to paramount “racial” differences between Koreans and Japanese. Thus, in order to assimilate first Koreans, Japan attempted to interfere with their private matters; they were introducing Japaneseness to the core of families. This started in 1909 to regulate private life through the People Register’s law that imposed through the census the vision of the Japanese family over the Koreans (Wetherall, 2021). This went further in 1911 with the abolishment of the Korean caste system (Open Wiki, n.d.). Nonetheless, there was some legal resistance. The latter tried to adapt Koreans to Japanese customary law through judicial decision, a tool that was absent from the previous Korean legal system (Kim, 2007).

However, this notion of Japaneseness is also paramountly embedded in the notion of Japanese nationality. In Article 18 of the Constitution of the Empire of Japan, it is stated that the conditions to be Japanese shall be determined by law (Constitution of the Empire of Japan, 1889, art. 18), that is to say the Code of Nationality of 1899. This code is the first in Japanese history to determine what it was to be “Japanese” and “non-Japanese” on clear criteria (Gonon, 1994): under this law, Japanese nationality was jus sanguinis, tied to the idea of a Japanese blood lineage that is the thread maintaining the ethnic society (Gonon, 1994). It is clear that this conception of Japanese nationality emerges from Meiji narratives and supports the project of a “coherent” ethnonationalist Empire. These narratives are the ones of the Kokugaku movement in the late 1890s that sought to create this idea of Japaneseness tied to values of blood and family-state (Weiner, 2014). This creates a duality between the adoption of customs as the legacy of what it is to be Japanese and the relegation of the Koreans to “their natural and proper place within a racially defined hierarchy of dependent states within the empire” (Weiner, 2014). This created a double status in Korea: the status of Chōsenjin, the Koreans of the Japanese Empire, and Naichijin for the Japanese settlers. This translated into a preferential status in everyday life. On the one hand, the Chōsenjin were subject to compulsory Japanese education, denied civic rights. They were even forced to change their name to Japanese ones by 1940 with the Sōshi-kaimei policy, and 111,000 of them were under conscription during the Pacific War in 1944 (Lie, 2008). On the other hand, the Naichijin were strongly implanted in the Korean institutions, with higher wages than their Korean counterparts. Because of such advantages, the population of Naichijin kept growing larger from 172,000 in 1910, to 348,000 in 1920, up to 918,000 by 1939 (Kimura, 1995), asserting the assimilation of the Korean people and colonial control.

The Reverse Migration: Zainichi as a Failed Integration

In the third place, I demonstrate through the instance of the Zainichi Koreans that the Japanese assimilation through law failed and resulted in a legal and identity void that lasted until the 1980s. This legal and identity void is deeply rooted in the unequal status they acquired through the history of their ascendance. In fact, the Zainichi are the descendants born of the migration of Korean people to Japan from 1910 to 1945. As a result of the loss of lands in Korea—that increased steadily from 7 to 8% in 1910 to 52.7% in 1932 (Open Wiki)—87% of Korean people in Japan were agricultural workers seeking economic opportunity (Lie, 2008). Their community grew bigger from 790 Koreans in 1910 to 626,000 by 1935 (Nozaki et al., 2006). Nonetheless, this influx did not mean that they were well integrated. In fact, they were not considered in the workplace. These immigrated Koreans only completed the needs in Japan for low-cost and temporary labor, enjoyed lower wages with high vulnerability to unemployment, while receiving little support from emerging trade unions (Weiner, 2014). In law, they enjoyed the same status as Chōsenjin, enjoying little rights even in mainland Japan.

This lack of integration in Japanese society and legal system, this “failed assimilation” brought about some uncertainty about the status of these people in Postwar Japan. The fact is that they have been denied the right to be Japanese for decades, while by the mid-1930s, it was about a third of the Korean population that was born on Japanese land and spoke Japanese as their first language (Lie, 2008). And still, after the Alien Registration Law of 1947, these Koreans were categorized as foreign residents zairyū gaikokujin (Nozaki et al., 2006). For the most part, this resulted in being stateless, since their Japanese nationality—the former fact of being Chōsenjin—was denied by Japan and acquiring nationality by the Republic of Korea or the Democratic People’s Korea was not automatic. Thus, Japan legally marginalized these people, demonstrating their lack of assimilation, and “integration” into Japanese society. In 1965, both South Korea and Japan attempted to solve this issue: the Normalization Treaty of 1965 was clear, they wanted to repatriate the whole community to South Korea. This is where the dilemma arose for the Zainichi population: beyond not being integrated in Japanese society, a part of them would not wish to go back to a less developed authoritarian country (Lie, 2013), nevertheless, the fact of staying in Japan would mean constant discrimination in most jobs and a lack of integration (Lie, 2009). As a result, the majority, up to three fourths, went back to Korea while 600,000 remained in Japan (Lie, 2008). For the latter, “passing,” as the act of conforming to a society’s standards because of the fear of being rejected, became the default option. Until 1971 and the adoption of the Declaration of Human Rights by Japan (Lie, 2008), Zainichi oriented themselves toward “meritocratic” fields such as sport and music in which they quickly became overrepresented (Lie, 2009). After 1971, Japan was legally forced to integrate them better into Japanese society, yet they remain a wounded minority.

Conclusion

In 1991 was created the Special Resident Status (Nozaki et al., 2006), intended to acknowledge the history of Zainichi in Japan and attribute them some legal advantages compared to the median foreigner living in Japan. I deem it as the catharsis of the history of modern migrations under the value of colonial law for the past century. It acknowledges the past of Japan, its unequal application of law, the application of unequal treaties, and the unequal position of Zainichi, which it tries to repair through this act. Beyond this, the Special Resident Status reflects the enduring process of integration of Zainichi in Japan, but it undermines the efforts for a clear recognition of their place in Japanese society. In this paper I have aimed to prove that through the adoption of Western legal tools such as international law and civil law, Japan incentivized the movement of settlers in Korea so as to informally colonize it. Japan even went further, using administrative law to regulate Korean society, and semi-assimilate them by giving them a racially different status. This notably explains their failed assimilation and integration, as highlighted by the other type of migration, the Zainichi in Japan. I think that this paper describes well the ambivalence of law. Law has been valued most of the time as the paramount protection for the individual and as guaranteeing justice, while it has proven to be a tool for oppression. Therefore, the neutrality of law needs to be contrasted with the reality of politics: there is no law without politics.