Le régime japonais de responsabilité civile du fait des bases américaines

Abstract

Most of the studies on the Status of Forces Agreement in Japan (SOFA) present its contents from a comparative or international law perspective, while underlining the role of American bases as a source of rampant criminality and troublemaking for surrounding populations. The SOFA is often analysed as embodying the privileged status that the United States military enjoys in Japan, forging a subordinate relationship between Tōkyō and Washington. This explains the focus on criminal liability shedding light on the potentially disruptive implications for local communities, whereas indemnification systems were associated with more individual and private issues which deserved less attention from academic opinion.

The first part of this article explores the general principles and conditions guiding the civil liability regime applied to illegal and non-illegal acts committed by U.S. soldiers and civilian components of the armed forces stationed in Japan, through the provisions of article 16 of the SOFA, in connection with subsequent legislative measures enacted by the Japanese Diet in 1952 precising the SOFA provisions, and the general rules concerning the compensation for damages caused by the action of the Japanese administration (1952). Under the current statement that civil litigations initiated by a Japanese plaintiff exclusively fall under the jurisdiction of Japanese courts, the SOFA shapes up a double track of compensation depending on the nature of the contested acts. If the acts are done in the performance of official duty, the SOFA provides for a key distribution system by which, for example, the Japanese government assumes 25% of the total amount decided by the tribunals, even if the responsibility lies solely with the defendant. If, on the contrary, the act is committed off duty, the Japanese victims or their beneficiaries can claim damages, not from the American administration, but only from the perpetrator(s) of the act. As in most cases, the defendant is insolvent, the SOFA stipulates that American authorities can grant to the plaintiff an ex gratia payment which is not construed as a formal admission of liability. As a matter of fact, this mechanism of damage restoration has become clouded in a perception of inequity: the key distribution system is ever hardly enforced by the American side, and even if from 1996 a special allowance system was introduced, allowing the Japanese government to fill the gap between the ex gratia payment and the payments ordered by Japanese courts, this encouraged the American administration to maintain low ex gratia payments, ensuring that the Japanese party should adjust the differential: a costly system for the Japanese administration and not satisfactory for the victims who have to endure the complexity and the length of the whole procedure which appeared to be an exhausting obstacle course.

The second part of this paper deals with the role of judicial review in environmental cases involving American bases. It begins with a brief analysis of the principal Japanese laws providing indemnification for the damages caused by routine and non-illegal military activities or training on the basis of strict liability, with the assumption that the restructuration and redeployment of American bases combined with urban expansion increase ecological risks for the neighboring populations, while public policies to contain these risks had but limited outcomes. In this context, it is interesting to note that since the mid-1970s, numerous groups of inhabitants decided to have systematically recourse to justice to seek damages and weight on the decision-making process. This practice is very similar to the ‘contemporary style trials’ in other fields, when the courtroom used to serve as a sounding board for crucial social and public health issues at stake. Nevertheless, if the agenda setting role of the trial is important as a vector of a better media coverage and publicity of the conflict, the repetitive nature of noise pollution cases and their accumulation offer ambivalent lessons: larger associations of victims were given systematic financial compensations, but with little improvements in their living environment. Mainly for two reasons: Japanese courts, especially at the Supreme Court level, are reluctant to impose mandatory injunctions and, as state institutions, American bases are largely protected from the host state administrative and judicial interference.

As a whole, from the Japanese point of view, this architecture of financial compensation established by the SOFA functions like a kind of vicarious liability, the various flaws of which nurtured claims for revision from anti-bases activists and the Japanese bar as well. But for the time being at least, both Washington and Tōkyō are not willing to open the Pandora box of the revision of the SOFA. It is more realistic to think that case by case improvements would be sought through behind the scenes negotiations within the SOFA Joint Committee, as has been seen in the past for other criminal liability or environmental issues, without dispelling a diffuse feeling of frustration among the public.