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4. Land Issues: The Legality of Land Acquisitions

On 5th April 1945, four days after US forces began invading Okinawa Island, Fleet Admiral Chester W. Nimitz issued a directive terminating Japan's administrative, legislative, and judicial powers in Okinawa and declaring it officially under US military occupation.[1] This was in conformity with Article 42 of the Hague Convention on the 'Laws and Customs of War on Land,' of October 1907.[2] Whilst somewhat antiquated, the international Convention provided initial legal basis for the land acquisitions that so dominated postwar Okinawa, and defined America's obligation toward the occupied territory and inhabitants.[3] Since US planners were thinking ahead in preparation for assault on Japan, securing the appropriate air, naval, and logistics bases was vital. US forces took control of such areas upon capture, but also expropriated additional lands for military purposes, mostly private lands.[4] By mid-1946, the US was in control of almost half of Okinawa Island's arable land.[5] Much of it sat neglected and serving no discernible military purpose, in spite of the tachiiri kinshi, or 'Keep Out' signs. Of interest are the Hague Convention rules governing land seizure and retention. Article 55 asserted that the occupying state should be regarded "only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates…situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."[6] Under such rules the US could use seized land, be it municipal or private, without any obligation to make payment to a dispossessed landowner, but on condition that the land remained undiminished and uninjured. In essence, it was illegal under Hague for the MGR to tarmacadam on a piece of seized land let alone anything else.[7] Once the decision that US forces would remain in Okinawa and construct permanent facilities was made, of course, the USG had to seek a new legal foundation.

As has been mentioned, the gist of the MTPJ was agreed before San Francisco. The 'Directive for USCAR,' of October 1950, is intriguing on land in that while it stays within the legal confines of the Hague Convention it sets out the shape of a post-treaty policy. Article 15 discusses public property taken by the US as an "occupying power" with no need to pay compensation, stating that on the coming into force of a treaty the Governor would act "to secure…title to such property" and then "release permanent possession…to the agencies…allocated."[8] In the case of private lands, the US would secure title to any real estate required permanently.[9] While it was hoped most would be gained via negotiation "if it cannot be purchased at reasonable terms or…[if] owners refuse to negotiate, condemnation proceedings will be instituted."[10] At the same time as hinting at an aggressive post-treaty land acquisition strategy, likely driven in part by the usefulness of Okinawa during the continuing Korean War, the US agreed to pay rent on, or purchase outright, lands needed on a temporary or permanent basis. There was no legal obligation to do this. To be viewed as fair was a factor, especially since fresh new land seizures were on the horizon. Article 17 stated that using agencies were "required to pay rent…on and after 1st July 1950."[11] Rental payments would be taken from a Counterpart Fund set up out of proceeds from sales of GARIOA supplies.[12] Another clause stated that "payment of rental for private property used…prior to 1st July 1950,"[13] would be drawn from the Counterpart Fund. Deciding what constituted fair rentals fell on the Real Estate Division of the US Army, Okinawa Engineer District (OED). Unfortunately, and despite significant efforts, the OED was unable to came up with valuations that landowners thought fair,[14] hence the pre-MTPJ, or Kowa mae, period land rental problem persisted until 1967.

Although Japan's ratification of the MTPJ on 28th April 1952 should have left the US with a clear legal foundation for its land policies, the basis was rather opaque. Under the terms of Article III of the MTPJ Japan agreed to agree with any proposal of the US to the UN to place the Ryukyu Islands under a trusteeship arrangement,[15] but that in the interim the US would exercise all powers of administration, legislation and jurisdiction.[16] The USG never did apply for an official trusteeship, likely because the UN would have had rights to scrutinise US activities.[17] Arguably therefore, continued post-MTPJ US control of Okinawa was semi-legal at best, tenable only because Japan was a willing co-conspirator. Regardless, the US saw the MTPJ as legal recognition of its authority and pushed on with the military base programme. A priority was solving the lease-rental payment issue that had become a bone of contention between USCAR and landowners. USCAR's first attempt at a solution was, while well-intentioned, a failure. Civil Administration (CA) Ordinance No. 91, entitled 'Authority to Contract (keiyakuken ni tsuite),' of November 1952, stated that while it is "desirable and expedient to effectuate… possession…of certain lands and properties necessary,"[18] the USG was "desirous of compensating private owners of property occupied."[19] This authorised the GRI Chief Executive, Higa Shuhei, to enter into lease agreements with individual landowners on behalf of the USG.[20] Low acceptance of contracts under these terms was because the rental payments offered [See Fig. 4 Military Rentals in Kin-son by Land Class, 1947-72] ; disparagingly referred to as Coca-Cola rents, were too low, especially in the context of the rather enigmatic service agreement number DA 92-320-FEC-148, by which USCAR would lease the lands for a 20-year period.[21] Although USCAR instructed the OED to upwardly reappraise rent payment rates in light of the failure of Ordinance No. 91, the vast majority of landowners continued to reject, hence the shift to a more aggressive USCAR policy.[22]

[1] 'US Navy Military Government Proclamation No. 1,' 5th April 1945. Laws and Regulations During the US Administration of Okinawa, 38. In as much as references to land, Article IV stressed that "existing…property rights will be respected and existing laws will remain in force and effect except insofar as it may be necessary for me in the exercise of my powers and duties to change them." Ibid., 39.

[2] Article 42, Section 3, 'Military Authority over the Territory of the Hostile State,' Laws and Customs of War on Land (Hague IV), proces-verbal ratification, 18th October 1907. http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm

[3] Although sophisticated in its overall objectives, much of the language was anachronistic. Article 47, for example, stated that "Pillage is formally forbidden." Ibid. Subsequent revisions to the Geneva Convention and the birth of the United Nations (UN) consigned the Hague Convention to history.

[4] A point worth emphasising is that the issue of private land ownership distinguishes the problem of US bases in Okinawa from that in Japan proper where all US base land is municipal or government-owned.  

[5] 40,000 acres out of a total 92,000 acres. 'Report of Military Government Activities for Period From 1st April 1945 to 1st July 1946,' in Okinawa-ken Bunka Shinkokai., editor, Okinawa-kenshi: shiryohen 9 - Military Government Activities Reports (Naha: Okinawa-ken Kyoiku Iinkai, 2000), 7.

[6] Art. 55, Section 3, 'Military Authority over the Territory of the Hostile State,' Laws and Customs of War on Land (Hague IV). http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm

[7] The USG and GOJ were aware of the US obligation under Hague in this regard. In discussing the return of property to the GOJ in the post-treaty period it was stated that it would be "returned…in good condition, subject to normal depreciation or ordinary wear and tear." 'Agreement Concerning Japanese-American Cooperation for their Mutual Security,' Undated Draft, February 1951, in US DoS, FRUS: Volume 6 - Asia and the Pacific 1951 (Washington, DC: US GPO, 1977), 846.

[8] 'Directive for United States Civil Administration of the Ryukyu Islands,' Memorandum approved by the Joint Chiefs of Staff, JCS 1231/14, 4th October 1950. US DoS, FRUS: Volume 6 - East Asia and the Pacific 1950 (Washington, DC: US GPO, 1976), 1317.

[9] Article 16, Ibid., 1318.

[10] Article 16, Ibid., 1318.

[11] Article 17, Ibid., 1318. This was pursuant to a decision that from 1st July 1950, the US would operate on a "pay-as-you-go basis" in the Ryukyus.

[12] Article 11-g., Ibid., 1316. It goes without saying, that the morality, if not legality, of GARIOA funds being used in this way is, at best, questionable. Congress-appropriated GARIOA funding was used very broadly: from the initial capitalisation of Ryukyu Ginko, to hospital and school construction, to economic promotion, but dipping into the fund for land purchases for military usage, or for the payment of rentals for military land, can in no way be defended as deeds that place the best interests of the Ryukyuan people as the priority which, presumably, was the purpose of GARIOA funds. Were the current writer to be uncharitable he might describe this as yet another creative 'double use of the dollar.'

[13] Article 11-g (4)., Ibid., 1317.

[14] Many people thought that the systems introduced by USCAR were unjust and contradictory, since some landowners lost their lands for nothing while others kept their lands and could work them. These issues will be discussed further in this chapter and in Chapter Three.

[15] Okinawa fukki no kiroku, 283.

[16] Ibid.

[17] A UN Security Council resolution of April 1947 gave the US "strategic trusteeship" over the former Japanese Mandated Islands. The allowed the US rights to "establish naval, military and air bases and... station and employ armed forces in the territory." Although the US favoured a similar kind of arrangement for Okinawa, it would not provide the US with the all-important absolute control. With a strategic trusteeship US actions were subject to interference by the UN Security Council, and the veto powers of the USSR. Furthermore, if Japan ever became a member of the UN the US would find itself on the wrong side of Article 78 of the UN Charter that disallowed trusteeships, be they strategic or otherwise, on another UN member's sovereign territory. Article V, 'Trusteeship Agreement for the Former Japanese Mandated Islands Approved at the 124th Meeting of the Security Council,' 2nd April 1947. Kashima Heiwa Kenkyusho, Nihon gaiko shuyo bunsho: nenpyo - Volume One, 1941-1960, 99-103. For a scholarly analysis: Rupert Emerson, 'American Policy toward Pacific Dependencies,' Pacific Affairs 3 (1947), pp. 259-275.

[18] CA Ordinance No. 91, 'Authority to Contract,' 1st November 1952. Laws and Regulations During the US Administration of Okinawa, 1144.

[19] Commencing from 1st July 1950: the date the USG first decided to pay compensation. Ibid., 1144.

[20] In March 1953, the Chief Executive of the GRI was given authority to organise leases and rental payments to private landowners for the pre-MTPJ period. CA Ordinance No. 105, 'Authority to Accomplish Execution of Leases and Rental Payment on Privately-Owned Ryukyuan Lands Occupied by the USA for the Period from 1st July 1950 through 27th April 1952,' promulgated 23rd March 1953. Laws and Regulations During the US Administration of Okinawa, 43.

[21] Embedded within CA Ordinance No. 91. Laws and Regulations During the US Administration of Okinawa, 1144-1145. On 27th May 1955, by USCAR-GRI accord, the service agreement number changed to DA-92-320-FEC-562. Contained within this service agreement were the three new types of land acquisition: negotiated lease, implied lease, and condemnation. USCAR, Civil Affairs Activities in the Ryukyu Islands for the Period ending 30th June 1955, Vol. 3, No. 1 (Naha: USCAR, 1955), 85.

[22] Rentals from 1947-72 were calculated according to five main pieces of legislation: 1) for the period 1st January 1947 to 30th June 1950 under HiCOM Ordinance No. 60, 'Settlement of Ryukyuan Pre-Treaty Claims,' 10th January 1967; 2) from 1st July 1950 to 27th April 1952, under CA Ordinance No. 105, 'Authority to Accomplish Execution of Leases and Rental Payment on Privately-Owned Ryukyuan Lands Occupied by the United States of America for the Period from 1st July 1950 through 27th April 1952,' 23rd March 1953; 3) from 28th April 1952 to 30th June 1955, under CA Proclamation No. 26, 'Compensation for Use of Real Estate Within Military Areas,' 5th December 1953; 4) From 1st July 1955 to 30th June 1958, according to CA Ordinance No. 33, 'Amending Civil Administration Proclamation No. 26,' 10th July 1956, and; 5) from 1st July 1958 to 14th May 1972, under HiCOM Ordinance No. 20, 'Acquisition of Leasehold Interests,' 12th February 1959. Okinawa-ken Gunyochito Jinushikai Rengokai, Tochiren 30 nen no arumi - shiryohen. (Naha: Tochiren 30 Shunen Kinenshi Henshu Iinkai, 1985), 604-605. As will be recalled, one-tsubo equals 3.3 metres sq.



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