Commentary / Japan

Legal flaws in government's case on Henoko

by Gavan Mccormack

Special To The Japan Times

The report presented on Thursday to Okinawa Gov. Takeshi Onaga by the “experts commission” he set up in January is bound to shake the Japan-U.S. relationship. Comprised of six authorities in law and environment, the commission was asked to advise on the legality of the ongoing moves by the Okinawa Defense Bureau (the Defense Ministry’s Okinawan affairs section) to reclaim a large section of Oura Bay in the Henoko area of Nago in northern Okinawa and construct there a major military facility for the U.S. Marine Corps.

This would nominally be a Futenma replacement facility that would allow the site of U.S. Marine Corps Air Station Futenma (famously described by former U.S. Defense Secretary Donald Rumsfeld as the “most dangerous base in the world” because it sits in the middle of the bustling township of Ginowan) to be returned to Japan.

While called a “replacement,” however, the new base would be a much larger, comprehensive facility, locking Okinawa in to U.S. force-projection scenarios through the rest of the century and with a range of facilities not present at Futenma, including not least a deep water military port. It would involve substantial reclamation of one of Japan’s most biologically diverse and precious marine environments.

Then-Gov. Hirokazu Nakaima, Onaga’s predecessor, granted the license to reclaim much of the bay in December 2013. Onaga’s commission, having exhaustively investigated the decision-making process, now returns a clear case of illegality, on multiple grounds, against the national government. Its report opens the way for Onaga to cancel the permits on which the project is currently being carried forward.

In approving the reclamation, Nakaima reversed both his long-standing opposition and electoral pledge not to allow the project, and his considered opinion on the environmental impact study into the project, in which he had declared that it would be “impossible to preserve the livelihood and natural environment with the measures set out in that study.” Neither at the time he made the decision nor afterward did Nakaima offer any explanation for his switch.

The Okinawan people, in a series of elections that followed, chose explicitly anti-base-construction candidates, including in November 2014, preferring Onaga — who pledged that he would “do everything in my power” to stop the base — by a massive margin of 100,000 votes to replace Nakaima. Across the prefecture, opposition to the Henoko project rose to astonishing levels, in the 70 percent and occasionally even 80 percent range.

Such sentiment notwithstanding, however, the national government of Prime Minister Shinzo Abe pressed ahead, promising U.S. President Barack Obama that the works would be handed over as agreed, and promising Okinawans that the transfer would allow implementation of the return of Futenma, something first promised in 1996.

In July 2014, the national government declared much of the bay off-limits and began a preparatory survey works. Opponents set up a protest camp at the entrance to the work site, and daily skirmishes for more than a year since then have pitted civic protesters in canoes and kayaks against the Japan Coast Guard at sea and riot police on land. After taking office in December and setting up the experts committee a month later, Onaga asked the national government to suspend operations pending the issue of the commission’s report. His pleas were ignored on both occasions.

The 200-page report of his experts commission now sits on his desk. Even the very abridged resume version, “Main Points,” presents clear and unambiguous findings of multiple breaches of law by the state.

“Necessity for reclamation,” a crucial consideration under the Public Waters Reclamation Law (under a 1973 revision to the 1921 law), had not been established. And of the six specific criteria under Article 4 of that law for reclamation, the Henoko project failed on three. It did not meet the tests of proof of “appropriate and rational use of the national land,” proper consideration for “environmental preservation and disaster prevention,” and compatibility with “legally based plans by the national government or local public organizations regarding land use or environmental conservation.” And it was incompatible with other laws, including the Sea Coast Law (1956) and the Basic Law for Biodiversity (2008).

These findings open the path for Onaga to cancel the legal basis for the reclamation and base construction work. That would amount to an emphatic “no” to the national government and to U.S.-Japan military and strategic plans for the Western Pacific region.

Should Onaga take this path, Chief Cabinet Secretary Yoshihide Suga has declared that works will continue and the dispute would be referred to the courts.

There is no precedent for such a frontal clash between central and prefectural governments and no way to predict its outcome, although the rule laid down in 1959 in the Sunagawa case that the security treaty is above the Constitution and protected against challenge at law would seem to remain in force. In other words, the security treaty trumps the Constitution.

Although Abe insists that his government upholds the principles of respect for democracy, human rights and the rule of law, Okinawans say that they are denied all three because of the national government’s insistence that the prefecture’s primary raison d’etre be service to the U.S. military.

As much as 74 percent of the U.S. base presence in Japan is concentrated on Okinawa, which accounts for a mere 0.6 percent of the national land, and the momentum since the end of the Cold War has been to ramp it up further. The new Henoko base is designed as a linchpin for the U.S. and Japanese governments’ design for the Okinawan archipelago as a fortress for containing China.

For the government of Japan to step back from its oft-repeated pledges that this new base will be built and handed over is unthinkable. It is equally unthinkable, however, for the governor and people of Okinawa to step down. The stage is set for a long, bitter, destabilizing battle, without precedent and without prospect of resolution.

Gavan McCormack is an emeritus professor of Australian National University, an editor of the electronic publication The Asia-Pacific Journal: Japan Focus, and coauthor of “Resistant Islands: Okinawa Versus Japan and the United States” (2012).