Opinion Calling for Review of the Status of Forces Agreement between Japan and the United States and Improvement to its Framework

• 日本語版（Japanese）

August 18, 2022

Japan Federation of Bar Associations

Introduction

The Japan Federation of Bar Associations (hereinafter referred to as “the JFBA”) prepared its “Opinion Calling for Review of the Status of Forces Agreement between Japan and the United States and Improvement to the Framework” on August 18, 2022, and submitted this to the Prime Minister, the Minister for Foreign Affairs, the Minister of Defense, the Minister of Health, Labour and Welfare, the Minister of the Environment, as well as the U.S. Embassy on September 5, 2022.

Summary of Opinion

The governments of both Japan and the United States should revise the Status of Forces Agreement between Japan and the United States (hereinafter referred to as “SOFA”) as follows, or improve its framework and take other necessary measures.

1. Application of the laws and regulations of Japan to the United States Armed Forces

The SOFA should be amended to clearly state that the United States Armed Forces in Japan, as well as members (servicepersons) and civilian employees of the United States Armed Forces and their families in Japan are under the jurisdiction of and obligated to comply with the laws and regulations of Japan, both inside and outside of U.S. installations (facilities and areas), except in relation to the matters set forth in items (1) and (2) below.

1. )Matters internal to the United States Armed Forces, such as organization, internal functions, management, etc., and that do not affect others
2. )Matters clearly indicated in treaties or the laws and regulations of Japan as being exempt from application

2. Provision and return of facilities and areas (in relation to Article II of the SOFA)

1. ）Approval from the National Diet of Japan should be required any time new facilities and areas are provided pursuant to Item (a), Paragraph 1, Article II and Paragraph 1, Article XXV of the SOFA.
2. ）In the case set forth in Item (1), the opinions of relevant local public bodies and other entities should be sought out and respected when determining whether to make such provision, as well as the conditions and other factors if approved.

3. Environmental conservation-related matters (in relation to Article III and Article IV of the SOFA)

1. ) As stated in Item 1 of the Summary, the SOFA should be amended to clearly state that the United States Armed Forces, etc. in Japan are under the jurisdiction of and obligated to comply with the laws and regulations of Japan, and it should also be confirmed that domestic environmental laws and regulations rightfully apply to the United States Armed Forces, etc.
2. )The SOFA should be amended to clearly state that, in the event of an environmental pollution accident, or in the event that residents are subjected to or suspected of being subjected to a safety hazard due to Unites States Armed Forces facilities, equipment, operations, etc., the Japanese government and relevant local public bodies have the authority to conduct on-site inspections without prior notification, and that the United States Armed Forces are obligated to comply with such inspections. It should also clearly state that the Japanese government and relevant local public bodies may request the United States Armed Forces to disclose the circumstances leading to the incident concerned and the results of investigations therein, and that the United States Armed Forces are obligated to comply with such requests.
   In particular, as interpretations and applications of the Agreement to Supplement SOFA on Environment Stewardship dated September 2015, as well as the Japan-U.S. Joint Committee Agreement on Cooperation Concerning Environmental Matters based on the Japan-U.S. Agreement on Environment, seem to limit on-site inspections conducted by Japanese authorities to accidents that have already occurred, the SOFA should be amended to clearly state that such interpretations and applications are not permitted.
3. )The Japanese government should receive regular reports from the United States Armed Forces on the status of application of the Japan Environmental Governing Standards (JEGS), which apply to United States Armed Forces facilities, etc., in accordance with the Agreement to Supplement SOFA on Environment Stewardship. The results of such reports should be publicly disclosed, and a framework should be established enabling the Japanese government and relevant local public bodies to regularly verify that the United States Armed Forces are in compliance with the agreement and to inspect other environmental conservation measures.
4. )The SOFA should be amended to clearly state that, in the event that soil contamination is discovered on-site when the United States returns facilities and areas, the United States is obligated to conduct cleaning operations in accordance with the Polluter Pays Principle (PPP).
5. )The Japan-U.S. Joint Committee Agreement mentioned in Item (2), which restricts the timing of entry when conducting on-site inspections prior to the return of facilities and areas, should be revised, and the Agreement to Supplement SOFA on Environment Stewardship should be amended to clearly state that the Japanese government and relevant local public bodies have the authority to conduct on-site inspections immediately once an agreement on return has been reached.
6. )A community consultative committee, including representatives of the relevant local public bodies and local residents, should be established for each facility and area to hold regular discussions on noise, environmental pollution, and other matters relating to the facilities and areas concerned, and the SOFA should be amended to clearly state that the United States Armed Forces are to respect the results of such discussions.

4. Operation of United States Armed Forces aircraft and air traffic (in relation to Article II and Article V of the SOFA)

1. ) Facilities and areas as defined by Article II of the SOFA include only buildings, constructed works, and other structures, as well as land and public waters. However, the SOFA should be amended to clearly state that the definition does not include airspace.
2. ) The Japanese government should clarify that the scope of airspace that the Japanese government officially permits the United States Armed Forces to use for training purposes as agreed under the Memorandum of the Joint Committee on Facilities and Areas in Okinawa dated May 15, 1972, and other agreements, no longer applies, and that the United States Armed Forces are only permitted to use the airspace above its facilities and areas in accordance with Article II of the SOFA. The aforementioned memorandum and other agreements should be revised, and the official announcement on the scope of usable airspace should be withdrawn.
3. ) It should be stipulated that, when, for training purposes, the United States Armed Forces wish to use airspace other than that authorized for use in training by the United States Armed Forces, the scope and time slot of use must be clarified, and prior permission must be obtained from the Japanese government.
   In addition, it should be stipulated that, when the Japanese government grants the United States Armed Forces permission to use airspace, the date and time of such training as well as the scope of use must be made public.
4. ) Article VI of the SOFA should be amended to clearly state that United States Armed Forces may control only airfields located within the facilities and areas provided, and that other air traffic control operations, including approach control, are to be conducted by the Japanese government, and authority over approach control within the Approach Control Areas of Yokota and Iwakuni should be promptly returned.
5. ) (a) The Japanese government should verify the status of implementation of current noise abatement countermeasures as they relate to the operation of United States Armed Forces aircraft, and request United States Armed Forces to provide information on exceptional operations, such as late-night and early-morning flights, which are prohibited in principle; and the Japanese government should regularly make these results public.
   (b) The Japanese government should, in cooperation with the United States Armed Forces, establish a framework for the United States Armed Forces to provide information on individual flights in advance when wishing to conduct late-night, early-morning, or other exceptional operation of United States Armed Forces aircraft, and the Japanese government should immediately provide relevant local public bodies with such information.

5. Response to United States Armed Forces aircraft crashes and other accidents (in relation to Article XVII and Article XXIII of the SOFA)

1. ) It should be confirmed that, in the event of an accident involving United States Armed Forces aircraft, ships, or vehicles in a location outside of its facilities and areas, Japan has the authority to control the site of the accident, and the Japan-U.S. Agreement should be revised as follows.
   (a) The provisions in Paragraph 2 of the Agreed Minutes regarding Items (a) and (b), Paragraph 10, Article XVII of the SOFA which stipulate that Japanese authorities will not exercise the right to search, seize or inspect United States properties even outside of its facilities and areas should be abolished.
   (b) The Guidelines Regarding Off-Base U.S. Military Aircraft Accidents in Japan (formulated on April 1, 2005; revised on July 25, 2019) should be revised in line with the intent of the main paragraph.
2. ) In the event of an accident involving United States Armed Forces aircraft and occurring outside of its facilities and areas, the appropriate competent authorities within the Japanese government and the United States Armed Forces should jointly investigate the cause of the accident, and the results of this investigation should be made public. In addition, the United States Armed Forces should be obligated to comply with requests from Japan for the disclosure of information pertaining to investigations into the cause of the accident concerned.

6. Japan-U.S. Joint Committee (in relation to Article XXV of the SOFA)

1. ) The SOFA should be amended to clearly state that the authority of the Japan-U.S. Joint Committee is limited to holding practical discussions between Japan and the United States within the scope of the SOFA and Japanese domestic laws, and determining detailed implementation rules.
2. ) Agreements within the Japan-U.S. Joint Committee should, in principle, be made public, and the principle of public disclosure should be thoroughly enforced as it relates to matters that could affect the rights of the citizens of Japan. Even when, in exceptional cases, an agreement is not made public, such agreement must be disclosed after a certain period of time has elapsed.
   The contents of past agreements within the Japan-U.S. Joint Committee should also be made public in the aforementioned manner.