One of the great secret ironies behind Prime Minister Shinzo Abe’s April 28 ceremony celebrating “Restoration of Sovereignty Day,” the anniversary of the formal end of the Allied Occupation in 1952, might be that (whispering) it was all an illusion.

Similarly, the PM’s dogged focus on amending the American-tainted Constitution to bolster his nationalist credentials might reflect an uncomfortable unspoken truth — that it may be easier to change the Constitution than revise another document of potentially greater importance: the Status of Forces Agreement between Japan and the United States, which governs the legal status of the U.S. military presence in Japan.

The possibility that the SOFA might be superior to Japan’s Constitution is the theme of a new book edited by Hiromori Maedomari, a professor at Okinawa International University and former chief editorial writer for the Ryukyu Shimpo newspaper. Its title is “Honto wa Kenpo yori Taisetsu na Nichibei Chii Kyotei Nyumon” — roughly translated, “An Introduction to The U.S.-Japan SOFA, which is actually more important than the Constitution.”

Maedomari has the rightfully indignant perspective of a resident of a prefecture that was “abandoned” to the Americans until 1972 and continues to bear a disproportionate burden in hosting U.S. military facilities. Yet one of the book’s goals is to explain that the SOFA is a concern for all Japanese, and that what happens in Okinawa can happen anywhere else in the country — it already does, in fact, just in a more diluted form.

Despite the formal end of the Occupation by the Allied Powers in April 1952, American forces never left Japan. The San Francisco Peace Treaty “restoring” Japanese sovereignty went into effect with a seamless transition into the U.S.-Japan Security Treaty, which left the U.S. network of bases in Japan both intact and subject to no real restrictions on their use.

The security alliance was also concluded in San Francisco on Sept. 8, 1951 — the same date as the peace treaty, though in great secrecy at a noncommissioned officer’s mess at the Presidio. The Japanese negotiators were not informed of the venue or schedule until the day before, which is also when they first received a draft of the security treaty. A Japanese translation was not available until it was actually signed.

If this does not seem like a fair negotiation between equal parties, that’s because it was not — the peace treaty did not take effect until the following year, so the security treaty was signed by a Japanese government still beholden to the U.S. Occupation authorities.

This starting point set the tone for the relationship between the two countries ever since. In 1960, renegotiations led to the current security treaty and Status of Forces Agreement, both of which on the face of it at least appear more balanced. Yet as Maedomari points out, the U.S. has preserved its dominance through secret side-agreements, the existence of which has only recently been confirmed by Japanese scholars and journalists researching U.S. government archives. Such records also reveal a disturbing degree of American influence at the highest level of government, including at least one instance of intervention by U.S. officials in the Japanese judicial process.

The most basic and obvious infringement of sovereignty comes from the fact that the U.S. military, its personnel and their dependents are not generally subject to Japanese law. This starts with immigration laws, which do not apply to personnel entering Japan under the SOFA framework. As a result, the Japanese government does not even know how many U.S. personnel there are in their country at any given time, a fact that was embarrassingly revealed when it was asked a few years ago how many would be left if the on-again-off-again transfer of U.S. Marines to Guam ever took place. According to Maedomari, the United States can send anyone into Japan — soldiers, sailors, contractors, spies — simply by putting them on a plane bound for a U.S. military base.

The flight in would also be free of the restraints imposed by Japanese aviation laws, which do not apply to U.S. military aircraft. This is reflected in the government’s odd explanation to the Japanese people that the U.S. Marine Corps’ controversial V-22 Osprey would fly practice missions over Japanese territory at an “average” altitude of 150 meters. This means they would in fact fly at much lower altitudes part of the time, far lower than is permitted by Japanese law.

More surprising still, much of the airspace over the Tokyo area is under U.S. military air traffic control, requiring flights from Haneda to western Japan to take a detour in order to remain in “civilian” airspace. Maedomari’s book reasonably asks whether a nation can be truly considered independent when the airspace over its capital is under the control of a foreign military.

The most common source of SOFA-related news is crimes committed by U.S. personnel or their dependents, usually in Okinawa. (To be newsworthy in other prefectures seems to require that they involve rape or murder). Sadly, the history of the alliance is littered with such incidents going all the way back to the ’50s: the bored sentry taking a potshot at a passing train with lethal results; the serviceman who chased civilians around in a jeep while shooting at them with a flare gun; the guard who simply gunned down foraging farmers in cold blood; and the pilot who misjudged his effort to buzz a cyclist at the end of the runway and sliced her in half instead, to name but a few.

Although under SOFA Japan nominally has jurisdiction over most U.S. personnel who violate Japanese law, in practice Japan either waives this jurisdiction or the U.S. simply does not hand the suspect over to local police for questioning. Indeed, there is nothing to stop the offender from being put on a U.S. plane out of the country, or to deter personnel who know they are shipping out from going on a petty crime spree immediately before doing so (the vast majority do not, of course).

The inability of Japanese authorities to exercise jurisdiction is not just limited to airspace or people, either — it extends to any U.S. military property, wherever it is located in Japan. This was demonstrated in 2004 when a U.S. military helicopter crashed into the campus of Okinawa International University. Miraculously there were no injuries, but U.S. personnel quickly descended on the university, cordoned off the crash site and proceeded to recover U.S. government property — the wreckage — leaving Japanese police as largely passive bystanders.

The American military presence may even have corrosive effects going to the heart of the rule of law in Japan. As is now known from U.S. archives, when in 1959 the Tokyo District Court issued its judgment in the famous “Sunagawa case,” declaring U.S. forces in Japan to have “war-making potential” prohibited by Article 9 of Japan’s Constitution, the U.S. ambassador met with Japan’s foreign minister at 8 a.m. the following day to convey his instructions for a Cabinet meeting scheduled for an hour later. Ambassador Douglas MacArthur II (Gen. Douglas MacArthur’s nephew) also instructed Japanese prosecutors on appellate strategy, including the unusual step of skipping intermediate appeals and immediately seeking a judgment from the Supreme Court.

Not only that, but while the matter was still under consideration by the top court, Ambassador MacArthur had a series of secret meetings with Chief Justice Kotaro Tanaka, whom the Americans had been cultivating for a decade. Tanaka obligingly shared information on the appeal’s progress and the differing views of his colleagues on the court. He also conveyed to the ambassador his hopes that a unanimous decision could be reached, a view with which the Americans undoubtedly concurred given the revisions to the alliance and the new SOFA that were pending at the time.

The court ultimately declared (without dissent) that it was not within its purview to rule on “high-level political” issues such as the military alliance, essentially declaring some legal matters to be outside the jurisdiction of any court. Once this sort of logic had been used to avoid ruling on the constitutionality of the alliance, there was nothing to prevent courts from using it to duck decisions on other politically sensitive issues. Maedomari notes a disturbingly similar reasoning being used by courts in anti-nuclear litigation, with the questions of where and whether to install nuclear reactors being deemed policy matters best left exclusively to the discretion of other branches of government.

A more basic issue would seem to be that there are no legal grounds for the Ministry of Foreign Affairs to “waive” the jurisdiction of Japanese courts over U.S. personnel who commit crimes; the fact that they do so is deeply problematic from a separation-of-powers perspective.

But the paradoxes caused by the SOFA are not just a matter of constitutional law either. The superiority of the SOFA over Japanese law has a direct impact on the people of Japan — crime victims, people living with the fear and noise of warplanes flying low overhead — not to mention the fact that U.S. bases in Japan can be and are used for military operations against other countries who may not appreciate the finely parsed legal distinctions developed by the Foreign Ministry for domestic consumption.

Perhaps the most telling example of the SOFA’s primacy, however, comes from a 1966 incident involving a Japanese-American draft-dodger — an emigre to the United States who fled to Canada to avoid service in Vietnam and ended up returning to his hometown in Chiba. Despite basic principles of international law and the supposed protections of the Japanese Constitution, he was duly handed over to American military authorities in Japan with no trial or legal basis other than the SOFA.

So after all these decades, why doesn’t Japan dig in its heels and demand a better deal? According to former Foreign Ministry insider Minoru Tanba, who wrote the ministry’s secret manual for interpreting and spinning the SOFA (the manual that Maedomari and his colleagues at the Ryukyu Shimpo won several journalism awards for publishing in 2004), amendment is probably impossible. Maedomari describes a network of extremely powerful vested interests — the “security village” (anpomura) that has developed around the alliance and bases. This network supposedly dwarfs even the massive “nuclear village” that brought us the Fukushima No. 1 disaster and yet somehow seems to have engineered a situation where Japan’s remaining plants could soon be back online.

Both the nuclear power and SOFA power structures share a number of characteristics; these include tight information control, a tendency to lie, and an unhealthy collusion between those engaged in potentially harmful behavior (operating nuclear reactors and practicing night landings near civilian areas) and those charged with minimizing the risks to the Japanese people of such harm.

Yet other countries have succeeded in cutting a new deal with the U.S. military. The Philippines gave them the boot completely, as did Iraq. South Korea still hosts U.S. bases, but under an agreement giving its government far more supervisory authority and control than is enjoyed by Japan. Americans might reasonably argue that their bases and personnel have protected Japan for all these decades, yet does that alone justify conditions that have been rejected by other countries who are also being protected?

Perhaps Japan’s frustratingly center-less form of government makes it easy to constantly divide and conquer any political forces seeking to change the status quo. The brevity of Prime Minister Yukio Hatoyama’s term in office is at least partially attributed to his attempt to relocate some U.S. bases away from Okinawa. Or maybe the lack of a political center is itself a reflection of the fact that all too often the buck stops elsewhere — perhaps with the U.S.-Japan Joint Committee, the bilateral panel charged with administering the SOFA, largely in secret.

Here Maedomari sees uncomfortable parallels with the governing structures proposed for the Trans-Pacific Partnership, another U.S.-led treaty being negotiated largely in secret. If his perceptions are correct, perhaps the SOFA regime is merely an indicator of the shape of things to come for even more aspects of life in Japan.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas to community@japantimes.co.jp .

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