Agreement between Australia and Japan concerning the Facilitation of Reciprocal Access and Cooperation between the Australian Defence Force and the Self-Defense Forces of Japan
Introduction
2.1
This chapter examines the Agreement between Australia and Japan concerning the Facilitation of Reciprocal Access and Cooperation between the Australian Defence Force and the Self-Defense Forces of Japan (the proposed Agreement), which was signed in Canberra and Tokyo on 6 January 2022 and tabled in the Parliament on 14 February 2022.
2.2
The purpose of the proposed Agreement is to facilitate defence cooperation between Australia and Japan by establishing a legal framework through which cooperation can occur, and by defining the status of the Visiting Force and Civilian Component of a Party while in the territory of the other Party. The proposed Agreement contains the Reciprocal Access Agreement and an Annex (relating to article XXI), Agreed Minutes, and Record of Discussion (concerning article XXI).
Background
2.3
The proposed Agreement is a reciprocal status of forces agreement between Australia and Japan. Status of forces agreements generally provide for the stationing and operation of the military forces of one nation within or from the territory of another nation. These types of agreements might be settled for a variety of reasons, including to provide for joint training and the development of interoperability between defence forces, or to allow the staging of one defence force and their equipment within the territory of another.
2.4
There can be significant differences in the content of status of forces agreements as they are ultimately the product of negotiations at a particular point in time between parties that reflect each party’s respective interests.
Status of forces agreements: Australia and Japan
2.5
Australia has seven existing status of forces or status of forces-type agreements:
United States (US) (1963—entry into force (EIF) 1963)
Papua New Guinea (1977—EIF 1977)
Singapore (1988—EIF 1988)
New Zealand (1998—EIF 2005)
Philippines (2007—EIF 2012).
2.6
The proposed Agreement would be Australia’s eighth status of forces or status of forces-type agreement.
2.7
Japan is only party to one status of forces agreement, the 1960 Agreement regarding the Status of United States Armed Forces in Japan (US-Japan Agreement). Japan recently announced it was also negotiating a Japan-United Kingdom Reciprocal Access Agreement.
2.8
While Japan has made much of its alliance with the US to improve its diplomatic and military leverage, the status of forces agreement with the US has caused controversy in Japan in several areas and created ‘considerable sensitivity’ around the conclusion of any status of forces agreements that grant legal immunities to other visiting foreign forces. There are, however, significant differences in the content of the proposed Agreement and the US-Japan Agreement.
Status of Japan’s Self-Defense Force
2.9
How Japan operationalises its defence forces is substantively determined by its Constitution. Japan’s Constitution is often described as ‘pacifist’. Article 9 of the Constitution states:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
2.10
Interpretation of article 9 has evolved over time with regard to Japanese defence policy and capacity. Since the mid-1950s, article 9 has been interpreted as allowing Japan the right to self-defence. The Committee notes that these interpretations are following a trend of becoming broader.
2.11
In 2014, the Constitution was reinterpreted to recognise limited forms of ‘collective self-defence’. Where previously Japanese governments had interpreted the Constitution as limiting the use of force to instances when Japan was under armed attack, the legislative changes provide for the use of force under three new conditions:
when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness
when there is no other appropriate means available to repel the attack and ensure Japan’s survival and protect its people
where the use of force is limited to the minimum extent necessary.
Existing Australia-Japan cooperation
2.12
Since 2000, Australia and Japan have progressively increased their defence and security cooperation, and the two countries have had a ‘Special Strategic Partnership’ since 2014. Cooperation has occurred through a range of agreements and activities, including:
the 2007 Japan-Australia Joint Declaration on Security Cooperation
an information security agreement
foreign and defence ‘2+2’ ministerial meetings
trilateral dialogue (with the US)
the Quad (with the US and India)
participation in a range of joint military exercises.
2.13
Japanese forces have been training in Australia since the early 2010s, and individual Australian Defence Force personnel have been assigned to Japan for decades. Royal Australian Air Force aircraft have used US bases in Japan while enforcing North Korean sanctions.
Rationale for ratifying the proposed Agreement
2.14
Australia and Japan already have a well-developed pattern of engagement across various defence domains, including maritime, ground and air domains, which continues to increase in tempo and complexity.
2.15
According to the Department of Defence, the proposed Agreement was conceived as a response to a more contested strategic environment:
… both [countries] believed that a stronger strategic relationship was necessary, and in particular, that closer defence and security engagement would give both countries greater strategic weight to manage and navigate what the 2020 Defence strategic update called the most significant change in our strategic circumstances since World War II.
2.16
In support of the proposed Agreement the National Interest Analysis (NIA) stated:
Australia’s strategic environment is deteriorating and competition is sharpening. It is in Australia’s national interest to work closely with likeminded partners to support an open, secure and resilient Indo-Pacific region. Closer engagement with capable and professional partners like Japan will contribute to strengthening Australia’s military capabilities, improving Australia’s capacity to shape our strategic environment.
2.17
On a practical level, the NIA stated the proposed Agreement would also enable Australia and Japan to build on current defence cooperation with less cumbersome administration.
Documents in the proposed Agreement and their legal status
2.18
The proposed Agreement is contained across four separate documents of varying (and contested) legal status: the Reciprocal Access Agreement, Annex relating to article XXI (Annex), Agreed Minutes, and Record of Discussion on article XXI (Record of Discussion). There would also be further subsidiary instruments implementing certain treaty articles, though the legal status of these documents is not specified.
2.19
Professor Donald Rothwell of the Australian National University (ANU) School of Law stated it was exceptional for a newly negotiated treaty to be contained across four documents and in particular the Record of Discussion was an unusual feature:
As a general proposition of treaty law that is an unsatisfactory outcome for a freshly negotiated bilateral treaty and immediately creates challenges for the parties in interpreting and applying the treaty, and for this Committee in understanding the various component parts. This is especially relevant with respect to the interpretation of Article XXI [dealing with criminal jurisdiction].
Reciprocal Access Agreement and Annex
2.20
The Reciprocal Access Agreement is a treaty under the terms of the Vienna Convention on the Law of Treaties 1969 (Vienna Convention) and States can consent to be bound by it under international law.
2.21
The Reciprocal Access Agreement states the Annex shall form an integral part of the Agreement. Under the provisions of the Vienna Convention, it should be read alongside the treaty text with respect to the interpretation of article XXI (criminal jurisdiction).
Agreed Minutes
2.22
The Agreed Minutes record understandings reached by the Parties during negotiation. Under the Vienna Convention, they are not part of the treaty, but their legal status appears unclear.
2.23
The NIA described the proposed Agreement as a package of legally binding instruments including the Reciprocal Access Agreement, Annex and Agreed Minutes.
2.24
However, Professor Rothwell stated that the Agreed Minutes are not part of the proposed Agreement and would not be considered in its general interpretation:
My disagreement with this position is that while Article XXIX(4) of the RAA [Reciprocal Access Agreement] makes clear that the ‘Annex to this Agreement’ is ‘an integral part’ of the RAA, no equivalent reference is made to the Agreed Minutes.
2.25
Professor Rothwell advised that under the Vienna Convention, recourse may be made to the Agreed Minutes as a ‘supplementary means of interpretation’ to confirm meaning of the treaty in instances where the general rules of treaty interpretation had been followed but there existed an ambiguous or obscure meaning, or produced a result which was manifestly absurd or unreasonable. If the relevant circumstances arose, the Agreed Minutes could then be taken into account with respect to articles I(c) (definition of ‘Visiting Force’), V (diplomatic clearances), X (licences and vehicle registration), XVII(4) (engagement of local labour), and XXIII (claims).
2.26
As to whether the legal status could potentially cause issues if there was a dispute, Professor Rothwell was of the view:
It could be argued that these Articles are not central to the overall object and purpose of the RAA, but they could over the life of the RAA become the subject of attention if differing interpretations arise between Australia and Japan, and the particular factual scenarios associated with the need to consider those Articles. So the potential for disagreement between Australia and Japan over interpretation of these Articles cannot be ruled out over the life of the RAA.
Record of Discussion
2.27
The status of the Record of Discussion and its implications for article XXI, according to Professor Rothwell, was ‘much more ambiguous’.
2.28
The Record of Discussion itself states:
It is not legally binding and does not alter the scope of the Parties’ domestic laws and regulations or international legal obligations arising under, or existing independently of, the Agreement.
2.29
The Committee heard evidence that the ambiguous legal nature of the Record of Discussion was concerning given its importance in relation to article XXI (criminal jurisdiction). According to Professor Rothwell:
… I'm surprised that some of the language in the record of discussion cannot be found in the agreed minutes, which would have been the obvious place where they could have been located, which, as I've already indicated to the committee, would have had a stronger legal basis than the record of discussion as it currently stands.
Equally authentic texts
2.30
The proposed Agreement was done in duplicate in the Japanese and English languages, and specifies the texts are equally authentic. The Committee received evidence that while this is not exceptional, ‘there arises a possibility that different interpretations may occur between the two versions’.
2.31
Professor Rothwell highlighted his concerns as to this possibility in his evidence to the Committee, stating:
There remains a potential for disagreement between Australia and Japan over differences and interpretation of the English and Japanese language versions of the treaty, and this is particularly relevant with respect to aspects of the treaty that are unclear or ambiguous.
Key provisions in the proposed Agreement
Preamble
2.32
The preamble to the proposed Agreement notes the Parties’ shared interests and mutual commitment to:
regional and global peace and stability
peaceful settlement of international disputes.
Key definitions
2.33
The proposed Agreement defines ‘Civilian Component’ as:
… unless otherwise mutually determined by the Parties, the civilian nationals of the Sending State accompanying the Visiting Force, who are employed by or in the service of the Visiting Force and who are neither ordinarily resident in the Receiving State nor contractors engaged by, or on behalf of, the Visiting Force.
2.34
The proposed Agreement defines ‘Visiting Force’ as:
… the Force [Japan Self-Defense Forces; Australian Defence Force] of a Party, which, with the consent of the other Party, is present in the territory of that other Party in connection with cooperative activities …
Application of the proposed Agreement
2.35
The proposed Agreement would apply to ‘matters regarding mutually determined cooperative activities conducted by the Forces in the Receiving State’. Such activities are not defined in the proposed Agreement and would be subject to separate agreements, the status of which is not specified.
2.36
The proposed Agreement does not provide for the Force of a Party to conduct activities in the territory of the other Party without its consent. It also specifies that Parties are to ensure any cooperative activities:
do not adversely impact on the national interests of the Receiving State, or the readiness or capabilities of the Force of the Receiving State
are carried out with due regard for public safety
do not interfere unnecessarily with navigation, aviation, telecommunications or land travel to, from or within the Receiving State.
Responsibilities of the Visiting Force and Civilian Component
2.37
The proposed Agreement specifies the Visiting Force and Civilian Component have a duty to respect the laws and regulations of the Receiving State and abstain from activity inconsistent with the spirit of the proposed Agreement, particularly political activity in the Receiving State. ‘Political activity’ is not defined.
2.38
The Parties are required to cooperate to prevent any abuse or misuse of privileges granted under the proposed Agreement to members of the Visiting Force and Civilian Component. Parties are to similarly cooperate to ensure the proper discharge of obligations imposed in the proposed Agreement on members of the Visiting Force and Civilian Component.
Movement of Forces and equipment
2.39
Article V of the proposed Agreement deals with diplomatic clearances for vessels and aircraft to enter the territory of the Receiving State, and with the movement of vessels, aircraft, Official Vehicles and personnel between facilities made available to the Visiting Force. It requires the Parties to consult on routes between facilities and areas made available to the Visiting Force and Civilian Component, and allows the Receiving State to prescribe routes, restrict movement, and prohibit access to and passage through specified areas.
Navigation and pilotage
2.40
The Committee received evidence of a potential conflict between the right in the proposed Agreement of the Receiving State to prescribe routes, restrict movement, and prohibit access to and passage through certain areas, and the United Nations Convention on the Law of the Sea 1982 (UNCLOS).
Warships and freedom of navigation in the territorial seas
2.41
Professor Rothwell stated that Japan could seek to prescribe the navigation route for an Australian warship as it moved from one Japanese port to another, and thereby remove the autonomy of the Royal Australian Navy officer in charge and contravene the right to innocent passage for warships within the territorial sea of another country contained in UNCLOS.
Entry and departure of the Visiting Force and Civilian Component
2.42
As with other status of forces agreements, the proposed Agreement provides for streamlined entry to the Receiving State: the Sending State provides the identity of persons in advance and they are exempted from visa and registration requirements (providing they have the relevant documents), though not from quarantine and biosecurity requirements.
Import, export and inspections
Allowances for import and export
2.43
Article VII deals with items that may be imported by the Visiting Force and Civilian Component, and the terms upon which this may occur, including exemption from duties and taxes where specified. These items include:
all materials, supplies and equipment, including Official Vehicles for the exclusive and official use of the Visiting Force or Civilian Component
reasonable quantities of personal effects, furniture and household goods
all fuel, oil and lubricants exclusively for official use in Official Vehicles, vessels and aircraft.
2.44
The proposed Agreement also provides for the export of items and the conditions under which this can occur. It limits goods that may be disposed of in the Receiving State.
Inspections
2.45
Customs authorities have the right, in accordance with the laws and regulations of the Receiving State (except as otherwise provided for), to: undertake investigations; search members of the Visiting Force or Civilian Component; examine luggage, cargo and vehicles; and seize articles. The Visiting Force and customs authorities are to assist each other where necessary in the conduct of investigations and seizure of articles.
Protection of documents
2.46
Under the proposed Agreement, official documents under official seal of the Sending State are inviolable providing the package is accompanied by a certificate confirming only official documents are enclosed.
Regulation of import and export of military equipment
2.47
Provisions in the proposed Agreement would not permit the Sending State to import weapons into a Receiving State where those weapons were not permitted under law in the Receiving State.
2.48
The Department of Defence assured the Committee the proposed Agreement would ‘not affect existing domestic and international legal mechanisms to regulate the import and export of military equipment. Assessments as to the ability to import and export various types of military equipment between Australia and Japan are made on a case-by-case basis’.
Facilities, services, and utilities
2.49
Under the proposed Agreement, the Sending State is to request access to and use of facilities, areas and related services required for the Visiting Force and Civilian Component to conduct cooperative activities in the Receiving State. The Receiving State is to make reasonable efforts to address these requests.
Control of facilities
2.50
The Receiving State would maintain responsibility for overall control of the facilities and areas made available to the Visiting Force and the Civilian Component.
Security of facilities
2.51
The Parties would be required to cooperate and take appropriate measures in accordance with the laws and regulations of the Receiving State to ensure the security of the facilities and areas made available to the Visiting Force and Civilian Component, and their property, official records and information.
Use of public facilities
2.52
Subject to consent and agreed arrangements, the Visiting Force and Civilian Component could use for cooperative activities, public utilities and services owned, controlled or regulated by the Receiving State under conditions no less favourable than those of the Force of the Receiving State.
Communications
2.53
The Visiting Force and Civilian Component may operate telecommunications and information systems for official communication purposes in connection with cooperative activities. Use of public communications services is also permitted, subject to conditions.
General operational arrangements and requirements
Arms, uniforms and transportation of weapons
2.54
The proposed Agreement provides for members of the Visiting Force to wear their uniform and defence services insignia while performing official duties. Members of the Visiting Force could carry weapons and ammunition when authorised to do so by order issued by the Sending State, and when approved by the Receiving State for the conduct of cooperative activities.
2.55
The Visiting Force is permitted—subject to prior notification, and procedures and requirements determined by the Receiving State—to transport, store and handle weapons, ammunition, explosives, and dangerous goods for the conduct of cooperative activities.
Protection of information
2.56
Under the proposed Agreement, the Receiving State is required to protect the personal information of members of the Visiting Force and Civilian Component. Any classified information transmitted between the Parties under the proposed Agreement requires protection in accordance with security of information agreements and arrangements between the Parties.
Cost of participation and logistical support
2.57
Parties, within the limits of available resources, are responsible for their own costs of participation in cooperative activities, unless otherwise mutually determined. Where Parties decide to share costs, these are to be shared on an equitable basis taking into account the principle of proportionality, unless otherwise mutually determined.
Protection of the environment, cultural heritage and human health
2.58
Parties are required to implement the proposed Agreement consistent with the protection of the environment, cultural heritage, and human health and safety, and to consult on any issues that could affect these matters. The Sending State is required, in cooperation with the Receiving State and having regard to its laws and regulations, to address any damage or potential damage to the environment, cultural heritage or human health and safety. Provisions such as these are not found within Australia’s other status of forces agreements.
2.59
The Committee received evidence raising concerns about the environmental provisions. The ANU Law Reform and Social Justice Research Hub (ANU-LRSJ) stated it was unclear in the proposed Agreement whether members of the Visiting Force would be subject to the environmental laws of the Receiving State—laws which may be more or less stringent than existing domestic obligations.
Command and control
2.60
The proposed Agreement stipulates that members of the Visiting Force and Civilian Component would remain under the national command and overall control of the Sending State in accordance with its laws and regulations.
Military police
2.61
Article XXII provides the Sending State has the right to maintain military police within the Visiting Force, subject to arrangements with the Receiving State and insofar as it is necessary to maintain discipline and order among the Visiting Force and, if empowered by the law of the Sending State, the Civilian Component.
2.62
According to the NIA, further detail on how this arrangement would function is included in a less-than-treaty-status Implementing Arrangement (which also deals with cooperative arrangements in criminal matters) that would be confirmed by the Joint Committee (see below) following EIF of the proposed Agreement.
Claims
2.63
Provisions in the proposed Agreement deal with claims between the Parties and claims involving third parties. The aim of the provisions, according to the NIA, is to ‘greatly simplify the process for determining how such matters are to be resolved’.
Claims between Parties
2.64
Article XXIII states that in the context of official duties in connection with cooperative activities under the proposed Agreement, Parties agree to waive all claims against the other Party in the following cases:
for damage to property owned and used by the Force or civilian personnel of a Party
for injury or death of a member of the Force or civilian personnel while performing official duties
for maritime salvage of a vessel or cargo owned and used by the Force for official purposes.
2.65
However, claims are not required to be waived for damage, injury or death where damage, injury or death is mutually determined by the Parties to have resulted from gross negligence or wilful misconduct of a member of the Force or civilian personnel of the other Party. In that case, the Party to which that member of the Force or civilian personnel belongs would be solely responsible for the costs of any liability for that claim. The Parties agree to consult on the final amount payable by the responsible Party.
2.66
For other claims of property damage between the Parties, the proposed Agreement provides principles for apportioning the costs.
Third party claims
2.67
Under the proposed Agreement, the Receiving State is responsible for dealing with third party claims arising from damage to the property and/or injury or death in the Receiving State to third parties by members of the Visiting Force or Civilian Component occurring in the performance of official duties, or out of any other act, omission or occurrence for which the Visiting Force is legally responsible.
Other requirements for settling claims
2.68
Article XXIII establishes further principles and requirements with regard to the settlement of claims, including requirements:
to consult on various matters, including on claims not arising from the performance of official duties, and where claims are not adjudicated by a competent tribunal
to cooperate in providing information and in collecting evidence to ensure fair hearings and the disposal of claims
for the Sending State not to claim immunity from civil jurisdiction unless provided for under the laws and regulations of the Receiving State
to notify the other Party of any claim under the article.
Criminal jurisdiction
2.69
Criminal jurisdiction is dealt with in several documents:
article XXI of the proposed Agreement
Annex to the proposed Agreement
2.70
The majority of the provisions under article XXI are similar to those in status of forces agreements Australia has with nations such as France and New Zealand, and with provisions in the North Atlantic Treaty Organization (NATO) status of forces agreement.
2.71
This section first discusses the general provisions relating to criminal jurisdiction. This is then followed by a discussion on the issue of the death penalty in Japan for certain offences and its interface with provisions in the proposed Agreement.
Jurisdictional responsibility
2.72
Under the proposed Agreement, the Sending State would, in general, have:
the right to exercise within the Receiving State all criminal jurisdiction conferred on them by the law of the Sending State
exclusive disciplinary jurisdiction, over the members of the Visiting Force and the Civilian Component.
2.73
Australian Defence Force members would remain subject to the Defence Force Discipline Act 1982 whilst in Japan; and Japanese forces would be subject to the Japanese equivalent while in Australia.
2.74
The Receiving State would have criminal jurisdiction over the members of the Visiting Force and Civilian Component for offences committed within the Receiving State and punishable by the law of the Receiving State.
Right to exercise exclusive jurisdiction
2.75
Under article XXI, the Sending State would, in general, have the right to exercise exclusive jurisdiction over members of the Visiting Force and Civilian Component for offences, including offences relating to the security of the Sending State, punishable by the law of the Sending State but not by the law of the Receiving State.
2.76
The Receiving State would have the right to exercise exclusive jurisdiction over the members of the Visiting Force and Civilian Component for offences, including offences relating to the security of the Receiving State, punishable by the law of the Receiving State but not by the law of the Sending State.
2.77
A security offence against a Party is defined as including: treason, sabotage, espionage or violation of any law relating to official secrets, or secrets relating to national defence.
2.78
The ANU-LRSJ raised concern about the imprecise nature of the definition of offences relating to the security of the Receiving State, in relation to which the Receiving State would have the right to exercise jurisdiction over members of the Visiting Force and Civilian Component. The ANU-LRSJ stated the proposed Agreement lacked clarity on how to approach the potential for differing definitions of these offences:
Due to the inherent proximity of visiting forces to military operations and intelligence, the vague definitions of crimes in the treaty widen the scope for misunderstandings of military activities that could amount to unintentional criminal offences.
Cases where jurisdiction is concurrent
2.79
In cases where jurisdiction is concurrent, the Sending State has the primary right to exercise jurisdiction over members of the Visiting Force and Civilian Component for offences:
solely against the property or security of the Sending State
solely against the person or property of another member of the Visiting Force or Civilian Component
arising from an act or omission in the performance of official duties.
2.80
For any other offence, the Receiving State would have the primary right to exercise jurisdiction.
2.81
However, article XXI stipulates circumstances that may alter jurisdiction:
the Party with the primary right to exercise jurisdiction may decide not to exercise this jurisdiction
the Party with the primary right to exercise jurisdiction is required to give sympathetic consideration to a request from the other Party to waive its right in cases considered to be of ‘particular importance’.
Arrest, handing over and investigations
2.82
Article XXI provides for Parties to assist each other in the arrest and handing over to the authority which is to exercise jurisdiction of members of the Visiting Force or Civilian Component, and in the investigation of offences allegedly committed by a member.
2.83
The Receiving State is required to promptly notify the authorities of the Sending State of the arrest of any member of the Visiting Force or Civilian Component.
2.84
The proposed Agreement contains provisions that would allow both Parties not to assist in an arrest or investigation. In such cases, the Parties are to immediately consult ‘to consider whether such assistance can be provided’. These provisions deal with cases where the death penalty may be relevant, and are subject to the Annex to the proposed Agreement and Record of Discussion (see below).
Custody
2.85
While other status of forces agreements to which Australia is party require ‘sympathetic consideration’ to be given to a request from the authorities of the Sending State that the Sending State be entrusted with the custody of a person pending conclusion of judicial proceedings, this is not provided for in the proposed Agreement. The proposed Agreement provides only for the right of a person in custody to have consular visits, subject to the laws and regulations of the Receiving State.
2.86
The Annex to the proposed Agreement clarifies the Sending State shall have the right, upon request, to have access at any time to a member of the Visiting Force or Civilian Component who is confined or detained by the Receiving State.
Entitlements of person prosecuted in the Receiving State
2.87
When a member of the Visiting Force or Civilian Component is being prosecuted under the jurisdiction of the Receiving State, the person is entitled to:
a prompt and speedy trial
be informed in advance of the trial of the charge/s to allow for defence preparation
be confronted with the witnesses against the person
present evidence in their defence and to have a compulsory process for obtaining witnesses if the witnesses are within the jurisdiction of the Receiving State
have legal representation of their own choice, or free or assisted legal representation under conditions in the Receiving State
communicate with a representative of the Sending State and where rules permit, to have a representative present at the trial
be present at the trial, which shall be public, subject to the court’s decision to exclude any person for reasons of public order, security or morality
bail, subject to the laws and regulations of the Receiving State
not be compelled to testify against themselves
not be held guilty of an offence that did not constitute a criminal offence at the time of the act or omission.
Additional procedural safeguards
2.88
The Annex provides for additional procedural safeguards where a member of the Visiting Force or Civilian Component is arrested, detained, charged or prosecuted under the jurisdiction of the Receiving State. The member is:
if arrested or detained, to be informed at once of the charge and accorded the immediate privilege of counsel, as well as not detained without adequate cause
to have no cruel punishments imposed, consistent with the law of the Receiving State
to have the right to challenge the legality of pre-trail detention
to be entitled to cross-examine witnesses
to have the services of a competent interpreter, consistent with the law of the Receiving State.
2.89
The Law Council of Australia stated the significance of these additional procedural safeguards was not clear as any assessment of the protections:
… ultimately requires an analysis of Japanese criminal law and procedure, including whether such procedural safeguards were already guaranteed by virtue of the domestic law, or conversely whether any warranted protections have been omitted from the Agreement.
2.90
More specifically, Professor Rothwell stated the ‘[p]rocedural safeguards identified with respect to “cruel punishments” in Annex clause 7(b) are not sufficiently precise to exclude the death penalty being applied following conviction of a capital offence’.
Death penalty
2.91
Australia has abolished the death penalty under Commonwealth, state and territory law and has adopted all relevant international treaties that prohibit the imposition of the death penalty. Japan has not.
2.92
The proposed Agreement does not protect members of the Australian Visiting Force or Civilian Component from the death penalty in Japan.
2.93
During the course of the inquiry, the Committee investigated various aspects of the death penalty issue including:
the death penalty under international law and compliance of the proposed Agreement with Australia’s obligations
the use of the death penalty in Japan
a perceived conflict between the proposed Agreement and Australia’s policy approach to the death penalty
the operation of various provisions across the proposed Agreement, Annex, and Record of Discussion.
Death penalty and international law
2.94
Under international law, the death penalty can be imposed in limited circumstances and its use is subject to certain protections. Under the International Covenant on Civil and Political Rights (ICCPR), which came into force for Japan on 21 June 1979, in countries that have not abolished the death penalty, the ‘sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime’.
2.95
Japan has not ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Second Optional Protocol), which is the key international legal instrument that seeks to abolish the death penalty. Parties to the protocol must take all necessary measures to abolish the death penalty in their jurisdiction.
2.96
The Law Council of Australia was of the view the proposed Agreement conflicted with Australia’s obligations under the Second Optional Protocol because the obligations would apply extra-territorially in instances where Australia was asserting jurisdiction over a person as a consequence of the person being subject to the Defence Force Discipline Act 1982 and being under the command of the Australian Defence Force:
In terms of the international law question, under the second optional protocol to the ICCPR, Australia is obliged to prevent the death penalty being carried out on persons within its jurisdiction. As you very correctly point out, the traditional meaning of that is 'within its territory', but international human rights law now also accepts that there are instances where a state may have jurisdiction over an individual outside of its territory. To give you an example, some of the cases deal with how, if the British forces in Iraq had detained a person, that person was within their jurisdiction. The significance here and the way in which we might even distinguish the broader context from the one that's under consideration here is that Australia will be asserting jurisdiction over all of the members of the visiting force and at least some of the civilian component because they will all be subject to the Defence Force Discipline Act when they are in Japan. They will all be, as members of the Defence Forces, subject to command, and so they are in a very real sense under Australia's jurisdiction in a way that an ordinary civilian happening to be in Japan might not be. On that point, I think it's fairly clear that the international obligation applies.
2.97
Under the proposed Agreement where there is no prohibition on the death penalty being carried out on a member of the Australian Visiting Force or Civilian Component, the Law Council of Australia stated in effect, Australia was:
… saying to Japan, ‘You can execute any Australian serviceman provided we don't have to get our hands dirty by handing them over or by arresting them.’ So it is in breach, we say, of Australia's obligations under the second optional protocol, because Australia is exercising its jurisdiction by saying to Japan: ‘Our hands are off. You can execute any Australian serviceman according to your law’.
Death penalty in Japan
2.98
Drawing from official statistics published by the Japanese Government, Monash University Eleos Justice told the Committee Japan retained the death penalty for 19 crimes. Since 2000, it has executed 98 prisoners by hanging. As of October 2022, 107 individuals were on death row who had exhausted or abandoned their avenues of appeal. Japan has executed nine foreigners since the end of World War II.
2.99
Monash University Eleos Justice stated:
… it may seem from those numbers that it is a very small possibility, but it is still a possibility and it will be too late once the Australian military personnel or civilian component gets arrested for a capital offence. Then we will be looking back at this agreement with disappointment.
2.100
The Law Council of Australia similarly stated:
I urge the committee to not approach this question on the basis of a risk assessment or some sort of analysis of likelihood that a member of the visiting force or the civilian component may be executed or may commit a crime that exposes them to the death penalty. That is not the point. The point is: what will the committee do to uphold and give primacy to Australia's strategy, which is absolute in its terms, of opposing the death penalty for all the very good reasons that it articulates? I urge against the ‘near enough is good enough’ approach to favour other interests to this very important global issue.
2.101
Monash University Eleos Justice, the Capital Punishment Justice Project, CrimeInfo, and the Anti-Death Penalty Asia Network in their joint submission raised concern as to the practices in Japan regarding the death penalty. According to the joint submission, these practices include:
individuals sentenced to death being kept in solitary confinement for up to 40 years before execution
individuals sentenced to death only being given notice the morning of their execution
families of individuals sentenced to death being notified after the execution has taken place
not guaranteeing the confidentiality of meetings between death row inmates and their lawyers
requests for a retrial or pardon not having the effect of staying the execution and being regarded as ‘not effective’.
Conflict between Australia’s strategy and the proposed Agreement
2.102
The Committee heard evidence there was a conflict between entering into an agreement where there was the possibility an Australian may be subject to the death penalty, and Australia’s Strategy for Abolition of the Death Penalty (Strategy).
2.103
The statement of intent in the Strategy is:
Australia opposes the death penalty in all circumstances for all people. We support the universal abolition of the death penalty and are committed to pursuing this goal through all the avenues available to us.
2.104
According to the Strategy, ‘the death penalty has no place in the modern world. It brutalizes human society, is degrading, and is an affront to human dignity’. Australia lobbies for the abolition of the death penalty through its bilateral and multilateral advocacy, and civil society engagement.
2.105
The existence of the death penalty in another jurisdiction affects Australia’s cooperation with foreign law enforcement agencies, and the provision of police or other justice and security assistance:
For example, we cannot extradite an individual to a country where the offence concerned is punishable by death. An exception may apply when the foreign government requesting assistance gives a credible and reliable diplomatic assurance stating that the death penalty will not be imposed or, if it is imposed, that it will not be carried out.
2.106
Monash University Eleos Justice, the Capital Punishment Justice Project, CrimeInfo, and the Anti-Death Penalty Asia Network, in their joint submission to the Committee, raised concern as to why the Department of Foreign Affairs and Trade, as the agency responsible for drafting and upholding the Strategy, identified ‘no concerns’ with the proposed Agreement when consulted by the Department of Defence. The submission stated:
… entering into an agreement with the full knowledge that the death penalty may be applied to its citizens would be a clear breach of its 2018 Strategy and is fundamentally inconsistent with Australia’s ratification of the Second Optional Protocol.
2.107
Monash University Eleos Justice was of the view there was a contradiction between Australia’s Strategy and the proposed Agreement:
… the 2018 strategy is very clear on its very principled position against the death penalty. What has been negotiated under this agreement would not stand up to the promise made.
Provisions in the proposed Agreement, Annex and Record of Discussion
2.108
How the Parties would handle circumstances where an Australian member of the Visiting Force or Civilian Component was suspected of committing a crime that carries the death penalty in Japan is addressed in three documents: article XXI of the proposed Agreement, the Annex (legally binding), and the Record of Discussion (not legally binding). Specifically, these documents deal with arrest and handing over, and investigation.
2.109
According to the Department of Defence, the effect of these three documents would be:
to oblige Australia to not obstruct Japan’s exercise of criminal jurisdiction regarding Australian persons in Japan;
and to assist Japan in carrying out certain activities (relating to arrest of persons, and investigation and collection of evidence);
but to make clear that in certain circumstances, where the death penalty may result, Australia’s international treaty obligations may prohibit providing assistance;
and that such non-assistance by Australia would not constitute obstruction in violation of the treaty.
2.110
The Department of Defence acknowledged the proposed Agreement does not protect Australians from the death penalty. Rather, it commits Australia ‘to not obstruct the exercise by Japan of its domestic criminal jurisdiction’, and ‘to not assist Japan in certain circumstances where doing so would risk Australia violating our own obligations’:
This ensures consistency with Australia’s legal obligations and policies, while also showing respect for Japan’s domestic jurisdiction.
2.111
The relevant provisions are provided in the tables below, followed by the views of participants in the inquiry as to the substance and effect of these provisions.
Table 2.1: Arrest and handing over
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The Parties shall assist each other in the arrest of members of the Visiting Force or Civilian Component in the Receiving State and in handing them over to the authority which is to exercise jurisdiction.
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The Parties mutually determine they are not obliged to provide assistance with arrest or handing over where such assistance would be inconsistent with the Party’s obligations under applicable international agreements existing at the time of EIF of the proposed Agreement.
If the authorities of a Party do not provide assistance in arrest or handing over, to the extent permitted in the proposed Agreement, non-assistance would not be construed as an obstruction of the lawful exercise of the territorial jurisdiction of the Receiving State.
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It is intended assistance with arrest or handing over would be inconsistent with obligations under applicable international agreements in situations where the Party refusing assistance considers there is ‘sufficient likelihood’ the person could be subject to the death penalty.
In considering whether such assistance would be inconsistent with obligations under applicable international agreements, representations and relevant assurances made by the other Party are to be taken into consideration.
An assurance not to seek the death penalty is a ‘relevant assurance’ and is to be given serious consideration.
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Source: Proposed Agreement, Annex, and Record of Discussion.
Table 2.2: Investigation
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The Parties shall assist each other, to the extent possible, in the carrying out of investigations into alleged offences by a member of the Visiting Force or Civilian Component, and in the collection and production of evidence.
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If the authorities of a Party do not provide assistance in carrying out of an investigation, or in the collection or production of evidence, to the extent permitted in the proposed Agreement, non-assistance would not be construed as an obstruction of the lawful exercise of the territorial jurisdiction of the Receiving State.
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At this time, Australia does not envisage any concrete situations where Australia would refuse assistance in the carrying out of investigations, and in the collection and production of evidence, except where Australia considers there is a sufficient likelihood that the person under investigation could be subject to the death penalty.
In considering whether there is sufficient likelihood the person could be subject to the death penalty, Australia would have regard to relevant information, including relevant assurances provided by Japan.
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Source: Proposed Agreement, Annex, and Record of Discussion.
Views of participants
2.112
Participants in the inquiry expressed a range of views on the effect of provisions in the proposed Agreement, Annex, and Record of Discussion, which are discussed below. Participants who commented on the death penalty issue were uniformly of the view there was no absolute protection from the death penalty.
2.113
While the Annex allows Australia to refuse to assist with arrest and handing over and investigation, the Committee heard this amounted to little as the relevant ‘international agreement’, the Second Optional Protocol, merely provides ‘no one within the jurisdiction of a State Party to the present Protocol shall be executed’. Consequently, without Japan being a party to the Protocol:
The Australian government would not necessarily be in breach of those obligations by simply standing by while an Australian was executed within the jurisdiction of Japan.
2.114
Participants were of the view the proposed Agreement does not prevent Australia assisting in cases where the death penalty may be involved. Monash University Eleos Justice, the Capital Punishment Justice Project, CrimeInfo, and the Anti-Death Penalty Asia Network argued the standard of ‘sufficient likelihood’ in the Record of Discussion left open the possibility assistance could be provided by Australia where the death penalty was a possible outcome. It questioned whether it was feasible or realistic that the Australian Government could properly assess the level of likelihood of a death sentence being imposed in a foreign legal system.
2.115
The Law Council of Australia pointed out the ‘sufficient likelihood’ provisions were contained in the Record of Discussion, which was not legally binding.
2.116
Further, although ‘relevant assurances’ not to seek the death penalty must be given serious consideration, Professor Rothwell argued this would be ‘no more than a political assurance and not a legal undertaking or acceptance of a legal obligation on the part of prosecutors not to seek the death penalty’.
2.117
Additionally, Professor Rothwell stated a key legal flaw was ‘[t]here is no absolute prohibition on Australian authorities providing mutual assistance to Japanese authorities investigating a capital offence alleged to have been committed by a VFCC [Visiting Force or Civilian Component] member’.
2.118
In conclusion, Professor Rothwell stated there was ‘no prohibition placed on the imposition of the death penalty for a capital offence’.
2.119
The Law Council of Australia similarly stated:
The Agreement offers no protection against the imposition of the death penalty on a member of the Australian Defence Force or its Civilian Component, except in the unusual circumstance … that Japan may require Australian assistance to arrest and successfully prosecute an accused.
2.120
Monash University Eleos Justice, the Capital Punishment Justice Project, CrimeInfo, and the Anti-Death Penalty Asia Network, stated:
… where the accused is on Japanese territory and the Japanese authorities have sufficient evidence to convict the accused, the lack of assistance by the Australian government is irrelevant.
Administrative provisions
Joint Committee
2.121
The proposed Agreement requires a Joint Committee to be established to provide for consultation between Parties on all matters requiring mutual consultation regarding implementation. The Joint Committee would determine its own procedures and may establish working groups for specific issues. It would be co-chaired by a representative of each Party. If the Joint Committee was not able to resolve a matter, the matter would be referred to the governments of the Parties for further consideration.
Dispute resolution
2.122
The proposed Agreement does not contain an external dispute resolution mechanism. Unless otherwise mutually determined by the Parties, any dispute regarding the interpretation or implementation of the proposed Agreement would be resolved solely through consultation and negotiation between the Parties.
Entry into force
2.123
The proposed Agreement would enter into force on the fifth day after the date on which the Parties exchange diplomatic notes informing each other that their respective internal procedures to give effect to the proposed Agreement have been completed.
Amendment
2.124
The proposed Agreement can be amended by written agreement between the Parties. Amendments must be approved by the Parties in accordance with their respective internal procedures and enter into force on the date agreed by the Parties.
2.125
According to the NIA, amendments to the proposed Agreement would need to be agreed according to the domestic treaty-making process of each Party.
Termination
2.126
Article XXIX stipulates that either Party can terminate the proposed Agreement by giving six months written notice. Any outstanding obligations with respect to costs, jurisdiction or claims remain binding until satisfied unless otherwise mutually determined by the Parties. Obligations with respect to security of information remain binding after termination.
Implementation
Implementing arrangements
2.127
The NIA advised a number of ‘implementing arrangements’—which detail how certain provisions would operate in practice—have been developed during negotiations. One such implementing arrangement deals with articles XXI (criminal jurisdiction) and XXII (security and military police).
2.128
According to the Department of Defence, implementing arrangements are of less-than-treaty status, are confidential between Parties, and are to be settled and supervised by the Joint Committee.
2.129
The Department of Defence stated work to prepare implementing arrangements was ongoing but would be finalised prior to EIF.
2.130
Parties may mutually determine to develop additional implementing arrangements in the future.
Legislation
2.131
According to the NIA, any legislative or regulatory action required to implement the proposed Agreement would be completed prior to EIF, but no specific details were provided.
Costs
2.132
The NIA stated the proposed Agreement would not impose any foreseeable direct financial costs on Australia.
Consultation
2.133
The NIA stated the following entities were consulted and no concerns were identified:
Department of the Prime Minister and Cabinet
Department of Foreign Affairs and Trade
Attorney-General’s Department
Department of Home Affairs
Standing Committee on Treaties.
2.134
No public consultation was undertaken.
Committee view
2.135
The proposed Agreement builds on an existing and long-standing defence relationship. It would both simplify and strengthen defence cooperation between Australia and Japan in the context of a deteriorating strategic environment. In this sense it is both strategic and practical.
2.136
In many respects the proposed Agreement follows closely other status of forces agreements to which Australia is party. It deals comprehensively with the entry and departure of the Visiting Force and Civilian Component, their movement and operation within the territory of each Party, command and control, and matters of criminal jurisdiction and claims.
2.137
Two key concerns were raised during the Committee’s inquiry: the status of the documents that constitute the proposed Agreement, and the issue of the death penalty in Japan.
Status of documents in the proposed Agreement
2.138
The Committee notes evidence as to the unusual situation of the proposed Agreement being contained across four separate documents, of varying and in one case, contested legal status. The Reciprocal Access Agreement itself and the Annex are legally binding under the Vienna Convention.
2.139
The status of the Agreed Minutes was subject to debate. While the Department of Defence suggested the Agreed Minutes were legally binding, the Committee heard from stakeholders with international legal expertise that their status under the Vienna Convention was such that they would not be considered in the general interpretation of the proposed Agreement, but could serve as a supplementary means of interpretation in certain instances.
2.140
The Record of Discussion, which deals with death penalty-related issues, is not legally binding and its potential impact on the proposed Agreement is unclear. This was a concern for some participants given its importance in relation to the criminal jurisdiction provisions of the proposed Agreement.
2.141
The Committee notes the suggestion some of the content of the Record of Discussion could have been contained in the Agreed Minutes, which would provide a stronger legal basis than is currently the case.
Death penalty in Japan
2.142
More broadly, the fact that the proposed Agreement is contained in four documents appears to be largely the consequence of the key issue of concern raised by participants in the Committee’s inquiry—namely, the death penalty in Japan for certain offences and the prospect that this could be applied to an Australian citizen.
2.143
The Committee notes concerns expressed by participants about the death penalty in Japan. The Committee found that while blanket immunity was not achieved in the proposed Agreement, considerable steps had been taken to protect Australian personnel from the death penalty in Japan while also maintaining Australia’s international obligations.
2.144
The Committee was led to understand that the duration of negotiations, seven years or longer, was principally due to the death penalty issue. There can be no doubt in the proposed Agreement itself and the associated documents that considerable effort has been made to deal with the issue. Though some participants in the inquiry were of the view the outcome was unsatisfactory, the proposed Agreement does contemplate the risk of a death penalty prosecution and includes some safeguards.
2.145
The Committee is of the view the proposed Agreement is consistent with Australia’s Strategy for Abolition of the Death Penalty given that through the Annex and Record of Discussion, Australia’s opposition to the death penalty in all circumstances is clearly implied. It is also part of the Strategy that Australia’s cooperation with foreign agencies is affected where the death penalty is in place, and this is specifically provided for through the proposed Agreement’s Annex and Record of Discussion.
2.146
The Committee is also of the view that international jurisprudence as to the extra-territorial reach of Australia’s obligations under the Second Optional Protocol is not settled.
2.147
As was discussed earlier in this chapter, the proposed Agreement is a response to the increasingly complex Indo-Pacific strategic environment. The Committee believes that on balance, the outcomes with regard to criminal jurisdiction are acceptable when considered in the context of the overall outcomes of the proposed Agreement and its strategic significance.
2.148
The Committee is of the view the proposed Agreement is in the national interest and accordingly recommends binding treaty action be taken.
2.149
The Committee supports the proposed Agreement between Australia and Japan concerning the Facilitation of Reciprocal Access and Cooperation between the Australian Defence Force and the Self-Defense Forces of Japan and recommends binding treaty action be taken.