【PART 1】 Mystery of Okinawa: Military Bases and the Constitution


【21】 Relationship between the Constitution, treaties, and laws: the true cause of low-altitude flights was the “Exclusion Clause” of the Civil Aeronautics Act


In terms of the Japanese legal system, the relationship between the Constitution, treaties, and normal laws is shown in the diagram below. Now let me start with some fundamental problems. To begin with, treaties such as the Japan-U.S. Security Treaty hold more power than domestic laws such as the Civil Aeronautics Act. This fact alone made me exclaim in surprise. How does it make you feel?

短縮版完成東アジア共同体研究所・対談 英語版 前半_48

The disparity is based on Article 98-2 of the Constitution, which provides that “the treaties concluded by Japan and established laws of nations shall be faithfully observed.” Most legal scholars see this as unproblematical.

But then what happens as a result? When a treaty is signed, Japanese laws (domestic laws except for the Constitution) are revised as needed. Otherwise, “special laws” or “exemption laws” are created. In other words, inferior laws are adjusted to fit the superior treaties. Are you with me so far?

Now, the fact that U.S. aircraft can fly at outrageously low altitudes can be attributed to this same disparity, in terms of legal structure. The signing of the Japan-U.S. Security Treaty, and an agreement based on it (the Japan-U.S. Status of Forces Agreement [SOFA]–an agreement which defines the special rights given to USFJ), mandated the creation of a Japanese domestic law called the “Special Act on Civil Aeronautics.” Please read the following excerpt?even just the parts in italics is fine.

Special Act On Civil Aeronautics Related to the Japan-U.S. Status Of Forces Agreement and the UN-Japan Military Status of Forces Agreement, Clause 3 (Enforced on July 15, 1952). The aircraft mentioned in the last clause [U.S. and UN aircraft] and their crew members who operate them, shall be exempted from the rules in the Civil Aeronautics Act Chapter 6, except for those designated by governmental ordinance.

When I first found out the meaning of this clause, I was truly astonished. The laws for exemption here, Chapter 6 of the Civil Aeronautics Act, signify Articles 57 to 99. Forty-three very important articles, including those which stipulate minimum altitude, speed limit, and no-fly zones, are all exempted! In short, U.S. aircraft have legally been allowed to fly all over the skies above Japan without height or safety regulations.