811B.011/16

The Secretary of State to the Secretary of War ( Dern )

My Dear Mr. Secretary: I refer to this Department’s confidential letter dated March 16, 1935, and especially to the last paragraph thereof, in which it was stated that the American Embassy at Tokyo had been directed to make available further information bearing on the question whether the laws of Japan prohibit or restrict the development and exploitation by foreign nationals of the natural resources [Page 1086] of Japan. The statements set forth hereunder incorporate information contained in a telegraphic report from the Embassy at Tokyo.

The text of Article 5 of the Mining Law of Japan, prohibiting foreigners from engaging in mining in Japan, was quoted in my letter above mentioned.

The Fishing Law of Japan provides that those engaging in commercial fishing within the territorial waters of Japan shall obtain a license. The law does not specifically state that such licenses shall be granted only to Japanese nationals, but it provides (Article 7) that a right accruing from a commercial fishing license shall be regarded as a property right and that the laws and regulations concerning the ownership of land shall be applicable to such right. Article 1 of a law enacted in 1926, which made possible the ownership by aliens of land in Japan, reads as follows:

“The possession of rights in land within the Empire by aliens or alien juridical persons belonging to nations which prohibit, or impose conditions or limitations upon, the possession of rights in land by Japanese subjects or juridical persons may, by imperial decree, be similarly prohibited, or identical or similar conditions or limitations may be imposed thereon.”

This Department understands, however, that no restriction or prohibition in respect of the ownership of land has been imposed upon citizens of the United States or of the Philippine Islands and that consequently there exists no specific restriction or prohibition in respect of the issuance by Japan of commercial fishing licenses to such citizens.

There is no provision of law which restricts agriculture to Japanese nationals, and it is understood that there are a number of foreigners, mostly missionaries or missionary institutions, who conduct farming enterprises without interference.

It may be pertinent to cite, in connection with the question whether foreigners are permitted to exploit or develop the natural resources of Japan, a law promulgated on July 27, 1899, and effective on and after August 4, 1899. That law provides that laborers may not “reside or carry on their business outside the foreign settlements or mixed residential districts unless under the special administration of the administrative authorities.” An ordinance issued by the Minister for Home Affairs on the basis of the law cited in the present paragraph provided that laborers engaged in “agricultural, fishing, mining, civil engineering, architectural, manufacturing, transporting, carting, stevedoring and other miscellaneous work” would be liable to the prohibition above quoted.

There are a number of administrative policies which in practice would probably prevent exploitation by foreign nationals of the natural resources of Japan. It is probable that an application by a [Page 1087] foreigner to develop water power projects would be rejected, although there is no law which forbids foreigners to engage in the business of developing electricity from water power. A number of foreigners have been interested as investors in enterprises of this character, but the authorities would probably insist that the concession be issued in the name of a Japanese. Similarly it is extremely improbable that an application by foreign interests to engage in commercial fishing would be considered favorably, despite the absence of specific legislation on the subject.

It may be of further interest to note that Ordinance No. 110, issued on December 10, 1929, by the Government General of Chosen provides that:

“Aliens or alien juridical persons belonging to countries which deny to Japanese subjects or Japanese juridical persons the right to fish shall be prohibited from fishing or possessing the right to fish.

“Aliens or alien juridical persons belonging to countries which impose special prohibitions or restrictions in regard to fishing upon Japanese subjects or Japanese juridical persons may be made subject by the Governor General of Chosen to similar prohibitions or restrictions.”

Sincerely yours,

For the Secretary of State:
William Phillips

Under Secretary