After COVID-19 cases spiked in prefectures with U.S. military facilities early on in the current wave of infections, local pressure on the central government to toughen up testing procedures on Japan-based U.S. military personnel entering Japan grew considerably.

But under the 1960 U.S.-Japan Status of Forces Agreement between the two countries, there is little Japan can do to force American military members and their families to adhere to Japanese laws and government requests. This, in turn, has led to calls by prefectural governors to fundamentally revise the SOFA agreement.

What is SOFA?

It is an agreement signed on Jan. 19, 1960 that is separate from, but complimentary to, the U.S.-Japan Security Treaty that was signed the same day.

Whereas the security treaty commits the United States to defending Japan, SOFA sets out how that defense will work in practice with U.S. forces stationed in Japan. It lays out the legal standing of U.S. military personnel and civilians employed by the U.S. military and their dependents.

SOFA contains 28 articles. They cover things such as basic logistics and communications arrangements — Article 8, for example, obliges Japan to provide U.S. forces with weather and climate information and estimates of tidal waves following an earthquake. These technical aspects of SOFA rarely, if ever cause political controversies.

Other articles touch on jurisdictional matters related to military and nonmilitary personnel covered by the agreement. Under Article 9, members of the U.S. military, civilian workers and their dependents are exempt from Japanese passport and visa laws, and they do not have to register for a residence card, which all other foreign nationals in Japan must have.

Under Article 10, they do not have to worry about taking a Japanese driving test, so long as they hold a valid U.S. driver's license. Article 11, meanwhile, provides for SOFA exceptions to Japan’s customs laws. These include the duty-free import of vehicles and auto parts, as well as furniture and household goods for private use.

Other articles exempt SOFA members from different kinds of Japanese taxes, and Article 16 specifically forbids them from participating in any political activity in Japan.

What does SOFA have to do with the infection clusters seen in prefectures with U.S. military facilities?

Those covered by the SOFA agreement can enter Japan according to U.S. quarantine regulations, regardless of whether those regulations are as strict as Japan’s regulations. From October, SOFA personnel could depart the U.S. and enter Japan without getting tested for the coronavirus, and they weren’t tested after arriving.

They could also move about freely within the base area 10 days after arrival if they’d been vaccinated, and weren't obliged to wear masks on base. Media reports of off-base personnel walking around without masks drew public and political anger.

On an Asahi TV program on Sunday, Constitutional Democratic Party of Japan leader Kenta Izumi called for SOFA’s revision, saying it was a major problem that U.S. soldiers had entered Japan last year without taking PCR tests and many hadn't been wearing masks on or off base because they don’t have to follow Japan’s laws and rules.

How does Japan’s SOFA compare with similar agreements elsewhere?

While the U.S. has numerous agreements with other countries that host American soldiers, those with Germany and Italy have received particular attention in the Japanese media and in Okinawa Prefecture, which hosts about 70% of U.S.-exclusive use bases in Japan.

Unlike Japan, where domestic laws are in practice not generally applicable to most U.S. military personnel, Germany’s SOFA agreement allows it to apply its domestic laws to U.S. military facilities and drills. In Italy, the U.S. military have to follow Italian laws concerning military drills.

In addition, the SOFA with Japan has no clear wording that gives Japanese authorities, such as the police, the right to enter U.S. bases and facilities, which means the U.S. can deny entrance in practice if it wishes.

In the case of the coronavirus, Germany and Italy are able to handle the situation differently than Japan. Prevention measures and quarantine of SOFA personnel in Germany are handled by the country's domestic quarantine law, while Italy’s SOFA allows the Italian military to restrict U.S. movements when a public health crisis breaks out.

Japan, by contrast, leaves the handling of SOFA personnel to the U.S. military, which notifies local health centers in the event of outbreaks.

What about crimes involving SOFA personnel?

Article 17 of SOFA spells out the legal rights of related personnel and what happens when one of them is suspected of committing a crime. The article gives U.S. military authorities the right to exercise criminal and disciplinary jurisdiction within Japan based on U.S. laws. The U.S. has exclusive jurisdiction over alleged crimes committed by U.S. military forces when the offense violates U.S. military law but not Japanese law.

The article also gives Japan jurisdiction over U.S. armed forces, civilians who work for it and their dependents with respect to offenses committed in Japan and punishable by its laws. However, the U.S. retains the ultimate right to discipline military personnel if the crime is also a violation of U.S. law.

Japan does retain exclusive authority when SOFA members are suspected of committing offenses that are crimes under Japanese but not American law.

However, U.S. legal experts have pointed out that these exclusive jurisdiction clauses have limited impact because so many crimes are illegal in both countries. That leads to the concurrent jurisdiction arrangements under SOFA.

In contrast, the agreement with Germany allows German federal, state and local officials to enter base areas, and in times of emergency or imminent danger they are allowed to enter bases without prior notice. U.S. bases in Italy are under Italian commanders, who are posted to all of them and can enter and exit freely.

When accidents involving military aircraft occur, both the German and Italian militaries can call for and lead the investigations, but Japan cannot do so without prior consent from the U.S.

What is concurrent jurisdiction and why has it proved controversial?

When an act thought to have been committed by personnel covered by SOFA is a crime in both the U.S. and Japan, one state is given primary jurisdiction. But even while Japan has primary jurisdiction in general, SOFA allows the U.S. to take control of the case under three exceptions: the inter se exception, the waiver exception and the official duty exception.

Under inter se exceptions, the U.S. can assume primary jurisdiction over crimes that only involve U.S. property or personnel. Under the waiver exception, the U.S. can request that Japan does not prosecute a crime committed by a SOFA member, while Japan can make the same request of its ally if the U.S. has primary jurisdiction. When a waiver exception is sought by either party, the country that has the primary jurisdiction right is supposed to give such a request sympathetic consideration.

The final exception applies when U.S. soldiers, but not civilians, are suspected of committing an offense under military law while carrying out their official duties. In such an instance, the U.S. has primary jurisdiction, and the offender can escape prosecution by Japanese authorities.

The problem, and the source of much controversy among local governments hosting bases, is that the U.S. alone determines whether the offense arose out of an official duty. In addition, there is no clear, bilaterally agreed-upon written definition of what "official duty" means.

Will the outbreak of coronavirus clusters in prefectures with U.S. bases lead to revisions to SOFA?

Governors of prefectures that host U.S. bases have long called for fundamental revisions to SOFA so that local authorities have more jurisdictional autonomy when alleged crimes involving U.S. personnel occur, as well as more freedom for their police to investigate accidents involving U.S. forces. In 2018, junior ruling coalition member Komeito submitted a SOFA revision proposal that included the right of police to enter U.S. bases in principle.

Over the past month, Okinawa Gov. Denny Tamaki and Shizuoka Gov. Heita Kawakatsu have repeated demands for fundamental revisions.

Article 27 gives either government the right to request at any time the revision of any SOFA article. Revision can be negotiated through what is known as the Joint Committee, which consists of the foreign and defense ministers of both countries.

In early January, the Joint Committee met and the U.S. agreed to impose stricter coronavirus measures. These include restrictions on off-base movement, which will be limited to essential activities.

As of Thursday, U.S. Forces Japan requires all personnel traveling to Japan to provide a negative COVID-19 test taken within three days of travel, regardless of their vaccination status and whether they are taking a commercial or military flight. When entering Japan, they face restricted movements for 14 days, regardless of their vaccination status.

In addition, those working at military installations and all individuals performing official duties from any location other than their home — including shared outdoor spaces — are told to wear masks.

But as both countries must agree to any fundamental revision to SOFA, past Joint Committees have sidestepped the issue and instead made ad hoc agreements, like the one on coronavirus measures, to deal with specific problems.

Prime Minister Fumio Kishida said earlier this month he was not thinking about a fundamental review of SOFA, which would involve complicated negotiations on both sides. On Jan. 13, Foreign Minister Yoshimasa Hayashi also said he was not thinking about requesting that a revision be considered, but added that he couldn’t deny the possibility that one of the main reasons for the spread of the coronavirus in local communities hosting bases was because of the U.S. military.

With the U.S. not having given any indication it is willing to consider the possibility of revision, the current 62-year-old agreement looks set to remain as is for the foreseeable future.