There has been constant conflict in the Okinawa Island of Japan regarding the construction of a new U.S. Military Base. The underlying reason for said conflict has been an environmental concern—the waters surrounding the proposed site for the base are home to the endangered Okinawa dugong, a manatee-like marine mammal. A recent judgement by a U.S. Court of Appeal in response to the conflict, comes arbitrarily, permitting the construction of the base and ignoring the environmental consequences. The authors argue that the judgment does not bode well for it is in violation of several international laws, and offer recommendations to deal with the problem.
After World War II, the U.S. set up 32 military bases in and around the Japanese island of Okinawa. These bases have been a reason for distress among the local population since their inception. Several complaints have been filed against these bases for causing noise and water pollution. A recent announcement by the U.S. government about its intention to shift a military base from Futenma to Henoko and Oura Bay was met with fervent opposition by environmental activists and the local population of Okinawa alike, because of the potentially deleterious impact on the marine life of Henoko and Oura Bay. Oura Bay is a hotspot of biodiversity, home to more than 5,300 species of corals and to Okinawa's dugong, an endangered manatee-like marine mammal. According to an environmental impact assessment, dugongs are sensitive to the light and noise from continuous military activities, and as less as 50 dugongs are present.
In such exacerbating circumstances, U.S. military bases should be regulated, and penalties should be imposed for the violation of environmental laws. For instance, when the U.K. government breached E.U. pollution laws in 2017, it faced strict legal penalties unless it implemented adequate pollution-control reforms. International pressure is also required to force Japan and the U.S. to protect dugongs. For example, when Japan was fishing whales at an alarming rate in the Southern Ocean and North Pacific in 2014, Australia brought up legal action against it in the International Court of Justice. The ICJ ruled in favour of Australia and stated that Japan's whaling operations were illegal.
Ninth Circuit Court Decision vis-à-vis International Law
On May 6 2020, the United States Court of Appeals for the Ninth Circuit ruled that the U.S. military could relocate its Marine Corps Aircraft Station from Futenma to Okinawa city, despite environmental activists' concerns over the base's construction threatening the local dugong population. The court stated that the conclusion by the Department of Defence (DOD), that its proposed action would have no adversarial effect on the dugong’s population or cultural significance, was not arbitrary or capricious under Section 706 of the Administrative Procedure Act.
This judgment is problematic on many levels. Firstly, from the perspectives of U.S. environmental activists, the DOD must have taken into account and disclosed the environmental effects of its construction projects in line with the National Historic Preservation Act (NHPA). Section 402 of the NHPA requires that prior to the approval of any federal undertaking outside the United States which may directly affect a property which is on the World Heritage List, the head of the agency should take into account the effect of the undertaking on such property to avoid or mitigate any adverse effects. The historical incidences of over 270 environmental accidents in the nearby water bodies and over 415 incidents in the nearby Yambaru forest (a UNESCO World Heritage site) utilised for military warfare, were not reported as part of the proceedings. Reports of banned chemicals, such as polychlorinated biphenyls being discovered in large quantities in excess of Environmental Protection Agency (EPA) standards, in some species were also not disclosed to Japanese authorities or discussed during court proceedings.
Secondly, from a Japanese civil society perspective, the International Court of Justice has stated time and again that concerns for the environment signify an “essential interest” of a state. Norms of environmental law should be taken into consideration while implementing any treaty. In a non-binding referendum conducted in February 2019, 72% of voters rejected the construction of the base due to environmental issues. However, Prime Minister Shinzo Abe did not pay heed to it, and the government sought no alternative plan to the station being built at Henoko even after Japan's Ministry has ranked it as an Ecologically Significant Area. Under Article 194(5) of UNCLOS. Japan should have stepped up to take more stringent measures against the U.S. military base.
Finally, from the perspective of the international community, it is international law, specifically the United Nations Convention for the Law of the Sea, that lays down regulations for protecting the marine environment. Article 145 of the UN Convention identifies a mandatory obligation for member states, to adopt appropriate rules, regulations and procedures to ensure three-fold outcomes, i.e. prevention, protection and conservation. Given that the dugong is listed on the Red List of Threatened Species, the international community will have required greater mitigatory steps of the DOD to preserve the dugong habitats, had there been full disclosures by the DOD (per Section 4 of the Endangered Species Act and Article 6(3) of the Convention concerning the protection of World Heritage). The result would have been a more robust ruling which placed clear checks on landfilling, aircraft noise, pollution through fuels, toxic chemicals, waste and damage to seagrasses, all of which lead to dugong population fragmentation, habitat changes and travel route disruption.
The Way Forward
In the status quo, only Japan has the limited right to request for information concerning pollution from the U.S. military. Unless the U.S. military makes it public, information about pollution can only be obtained through the Freedom of Information Act to its citizens, and according to the U.S.-Japan Status of Forces Agreement (SOFA), one cannot carry out studies that require entering the bases. In the interest of safety of the citizens of Okinawa, who are the ones suffering the adverse environmental consequences, Principle 10 of the Rio Declaration should be adopted which emphasises supervision, participatory control, transparency and accountability by the citizens, of the activities carried out. This should then lead to the amendment of the SOFA, so that the host nation has the right to enter bases in order to carry out research.
Further, U.S. military bases must recognise their obligations under statutes to protect the environment and self-regulate. Article 3A of SOFA (which stresses the “minimization” of environmental harm) should be implemented effectively and the U.S. military must survey, predict, measure, and regularly evaluate its projects. Both the governments of Japan and the United States, should discuss steps for environmental preservation based on survey results. Moreover, the Inter-American Court of Human Rights has recognised in this context, that the enjoyment of human rights is susceptible to environmental degradation. U.S. military bases should hence shoulder the duty of everyday safety of citizens, from the willy-nilly hazardous implications of their activities.
The disappearance of the dugong and other endemic species from Henoko Bay due to the absence of preventative measures would be an indictment on us as a modern world, in failing to protect a heritage we claim to respect.
Aarushi Gupta is a 2nd-year B.A.LL.B. (Hons.) student at National Law University, Lucknow.
Prajakta Pradhan is a 2nd-year B.A.LL.B. (Hons.) student at National Law University, Lucknow.