henoko.com

By Steven Roy Murphy, Esq.

© Copyright, All Rights Reserved 2006, 2007, 2008, 2009

I. Introduction

The United States is in negotiation with Japan for the construction of a new military heliport off the coast of Henoko, Okinawa, Japan to replace Marine Corps Air Station (MCAS) located in city of Futenma, Okinawa, Japan.[1] Building a heliport at Henoko requires land reclamation[2] of the sea grass feeding grounds of an endangered population of Dugong (manatees).[3] This planned heliport construction is prohibited by international law, including: treaty obligations, and custom derived from the law codified in the Convention Concerning the Protection of the World Cultural and National Heritage (WHC),[4] the Convention on Biological Diversity (CBD),[5] and emerging custom and state responsibility related to the Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH).[6]

A suit, Dugong v. Rumsfeld,[7] has been brought in the United States courts to determine if the United States’ WHC implementing legislation[8] is being violated by the planned heliport construction. With the Dugong case as a backdrop, I will argue that the WHC,[9] the CBD,[10] and the CSICH[11] can provide the Okinawa Dugong habitat, additional protection from the harm that will result from the planned construction of a United States heliport at Henoko. I will begin with a survey of the United States – Japan Security relationship, followed by and introduction to the Okinawa dugong. Then I will show the potential impact of these three conventions on the planned heliport construction.

Background of the United States and Japanese Security Relationship

The United States has maintained military bases on the island of Okinawa, Japan since the end of World War II,[12] pursuant to the Treaty of Peace with the Allied Powers, including the United States.[13] After the cessation of hostilities in 1945, the United States retained control of several Japanese islands conquered during WWII, including the islands of Okinawa.[14] In 1960, the United States entered into a “Treaty of Mutual Cooperation and Security” with Japan, in which the United States “is granted the use by its land, air and naval forces of facilities and areas in Japan.”[15] The United States began returning islands to Japan in 1968, while retaining control over the island of Okinawa.[16]

Preparation for the reversion of Okinawa began on March 3rd, 1970 with a bilateral treaty that established preparatory measures for the transfer of administrative control of Okinawa to Japan, from the United States.[17] These preparatory measures culminated in the “Agreement Between the United States of America and Japan Concerning the Ryukyu and Daito Islands” that entered into force on May 15, 1972.[18] Under this agreement, administrative control over Okinawa reverted from the United States to Japan.

Since reversion, numerous closures of small United States military bases have occurred around the island.[19] But Okinawa is still shouldering a disproportionate burden of hosting United States military bases in Japan.[20] In 2001, 74.8% of the land under exclusive United States Military control in Japan was concentrated in the Okinawa prefecture.[21]

The 1995 rape of a 12 year old Okinawan school girl by three American servicemen triggered wide scale local protests that resulted in the formation of the Special Action Committee on Okinawa (SACO).[22] SACO addressed problems related to the presence of American servicemen in Okinawa. One of the SACO recommendations was the closure and relocation of Marine Corps Air Station (MCAS) Futenma, from a densely populated urban area to a safer and more remote location in an attempt to pacify local concerns of noise and the danger of aircraft accidents.[23] However, pursuant to the SACO recommendation, MCAS Futenma is to remain operational until a replacement facility can be built at Japan’s expense, for the United States to use, in Okinawa.[24]

In 1998, the United States and Japan, signed a Logistics Support agreement that required Japan to provide “logistic support … necessary for operations which are conducted by the Armed Forces of the United States of America … in areas surrounding Japan, in accordance with the laws and regulations of the respective countries.”[25] This logistic support includes “use of facilities; ….and airport and seaport services.”[26]

Search for MCAS Futenma Relocation Site

The United States promulgated specifications for the heliport’s requirements and is working with the Japanese government in the site selection process.[27] The United States requires an 800M x 1500M airstrip, and the search for a suitable location to replace MCAS Futenma began when the Security Consultative Committee (SCC) created a bilateral US-Japan working group.[28] The SCC considered locations on the main island of Okinawa, including: Kadena Air Force Base, reclaiming the coral reef adjacent to Marine Corps Base Camp Schwab at Henoko, and a Sea Based Facility floating offshore from Henoko, adjacent to Camp Schwab.[29] Local opposition and inter-service rivalries between the United States Marine Corps and the United States Air Force prevented the selection of Kadena Air Force Base,[30] which is also located in a densely populated urban environment. The United States focused the search efforts on the off-shore site at Henoko, while local opposition pressured the Japanese government to attempt to find a more mutually agreeable alternative site.[31] The SCC decided to pursue the idea of placing a sea based facility offshore from Henoko.[32]

The Mayor of Nago tentatively agreed to construction of the heliport offshore from the village of Henoko, in return for a guarantee that it would be a dual use, civilian and military facility with occupancy by the United States limited to 15 years.[33] The Japanese government offered the city of Nago numerous subsidies to pacify the local population and gain Mayoral approval for the selection of Henoko as the relocation site for MCAS Futenma.[34] Construction options for Henoko ranging from a land based facility, a reclaimed offshore reef, and the Sea Based Facility were considered.[35] Due to costs, technology and timing,[36] the Sea Based Facility option has been discarded. The United States preferred reclaiming the offshore reef and wanted the Japanese government to move forward with construction at Henoko.[37]

Problems with Henoko Site

The Offshore Reef solution requires filling in a portion of Henoko bay.[38] This will result in the destruction of coral reef and sea grass meadows.[39] During construction, Henoko bay will suffer from current disruption, silt accumulation, and sedimentation which may damage the remaining sea grass meadows, which are important dugong feeding grounds.[40] This will displace and eliminate some of the local marine life.

Local environmental groups have joined forces with Earthjustice, a global environmental NGO, in an attempt to prevent the United States and Japan from building a heliport in Henoko Bay, which will destroy the sea grass meadows, which are important dugong feeding grounds,[41] by bringing the suit, Dugong v. Rumsfeld.[42] Dugong will determine if the heliport is a “federal undertaking outside the United States”[43] as defined by the National Historic Preservation Act Amendments of 1980,[44] which requires “avoiding or mitigating any adverse effects”[45] on a property listed on a foreign country’s equivalent of the United States National Register.

Recent Events

The crash of a United States CH-53D helicopter into the administration building on the campus of Okinawa International University increased local opposition to MCAS Futenma dramatically, pressuring both governments to accelerate the relocation.[46] Since the helicopters assigned to MCAS Futenma have returned from a tour in Iraq, local pressure has continued to mount over the fears of another accident, resulting in an agreement to provide Japanese officials limited access to military crash sites.[47] The United States further agitated the situation by allowing FA-18E Super Hornets to land and take off at MCAS Futenma.[48] These loud aircraft had not previously used this airbase, and their arrival generated noise complaints.[49]

It is postulated that Secretary of Defense Donald Rumsfeld’s recent failure to stop in Japan on a trip to the Far East is a result of American frustration with the status of the MCAS Futenma relocation issue.[50] Japan offered a proposal to build a smaller single use offshore heliport, in return for relocation of some Marine units from Okinawa to Guam.[51] The United States and Japan have since agreed to build the heliport jutting out into the sea and across land occupied by Camp Schwab at Henoko, and the United States will move 7,000 Marines from Okinawa to Guam at Japan’s expense.[52] But the United States continues to apply pressure by threatening to keep the 7,000 Marines in Okinawa, if the heliport is not built at Henoko.[53]

II. Dugong

The Okinawa dugong are endangered mammals that American’s commonly call the Manatee. The dugong is listed as an endangered species by the United States Fish and Wildlife Service[54] and the World Conservation Union[55] listed the dugong as “vulnerable” on the 2004 IUCN Red List of threatened species.[56] In Okinawa, there is an estimated population of a less than 50 genetically distinct dugong.[57] Dugong feed in sea grass meadows, including those located off of the coast of Henoko.[58] Surveys of the Okinawa coastline reveal that sea grass meadows are present along only 10% of it.[59] Dugongs have been sighted feeding off the coastline of Henoko.[60]

Cultural Aspects of Dugong

The dugong is important in the Ryukyu[61] culture. They are featured as central characters in several Ryukyu creation myths.[62] They are also present in folklore where their capture and subsequent preparation for consumption has resulted in natural disasters including disease and tsunamis.[63] Dugong meat is considered to be a royal food, which must first be offered to the Ryukyu king.[64] Soup made from dried dugong has been used by females of the royal family in ancient times, and by the common women of Naha[65] in recent times, to ease childbirth.[66] Archeologists have found 3500 year old dugong bones fashioned into tools and butterfly shaped talismans in Okinawa.[67] In more recent times their bones have been used to make arrowheads.[68] There are many different local names for the dugong, with root meanings ranging from ocean spirit, tsunami, and mermaid.[69] References to the dugong abound in Ryukyuan folklore, songs, and indigenous and sacred rituals involving themes of successful fishing, natural disasters, eroticism and humor.[70]

Under Japan’s Law for Protection of Cultural Properties,[71] the Okinawa dugong is listed as a “Natural Monument” on the Japanese Cultural Properties Register,[72] an equivalent of the United States National Register.[73] Sekine Takamichi, a Japanese environmental lawyer who provided expert testimony in Dugong v. Rumsfeld, states that the Okinawa Dugong have been protected under various iterations of Japanese Cultural Property law dating back to 1955, and possibly to the 1919 Law for the Preservation of Historic Sites, Scenic Locations and Natural Monuments.[74] On May 15, 1972, the dugong received their latest designation for protection under Japanese law by placement on Japan’s cultural property register.[75]

III. Three International Conventions with Potential to Provide Protection for the Dugong.

The planned heliport construction is prohibited by international law, including: treaty obligations, and custom derived from international law codified in the WHC,[76] the CBD,[77] and the emerging custom related to the CSICH.[78] I will briefly introduce these conventions, their status, whether the United States and Japan are contracting parties, and how they have been domestically implemented. This will be followed by an examination of each convention’s relevant provisions, articles violated, and the enforcement mechanisms available. With this background in place, I will argue that these conventions provide additional protection for the habitat of the Okinawa Dugong, barring construction of the Henoko heliport.

A. UNESCO Convention for the Protection of World Cultural and Natural Heritage

The World Heritage Convention (WHC) establishes a World Heritage Fund and provides assistance to members in conserving and protecting World Heritage properties which are deemed to have “outstanding universal value” to the world community.[79] The WHC protects two major categories of property from defined points of view: Cultural Heritage[80] and Natural Heritage.[81] These categories are supported by defined criteria that property must meet for listing on the World Heritage List (WHL).[82] While the WHL is the official list, property can have outstanding universal value and be protected, even though a state has not nominated it for listing.[83]

The WHC entered into force on Dec. 17, 1975, and there are currently 180 signatories to the WHC on deposit with UNESCO.[84] Because the United States has signed and ratified the WHC[85] and Japan has deposited its accession to the WHC,[86] they both have treaty obligations as contracting parties. The United States domestically implements a portion of its WHC obligations by way of the “National Historic Preservation Act Amendments of 1980,”[87] by requiring “any federal undertaking[s] outside the United States….”[88] take steps to avoid or mitigate adverse effects on world heritage properties. The United States presently has 20 properties listed on the WHL, including 2 trans-boundary properties shared with Canada,[89] and it maintains a National Register of historic properties.[90]

Japan’s implementation of the WHC consists of “various heritage conservation laws”[91] and a “Law for the Protection of Cultural Properties”[92] that sets forth guidelines for identifying, preserving and using cultural property. Japan has 13 properties on the WHL,[93] including the Gusuku [castle] Sites and Related Properties of the Kingdom of Ryukyu,[94] which are located in Okinawa. Japan has conducted a survey of its “cultural landscapes”[95] that could require protection as part of its state responsibilities under article 3 of the WHC.[96]

In failing to identify the Henoko sea grass meadows as part of the precisely delineated habitat of the threatened dugong and nominate if for WHL protection, Japan is violating its WHC article 3 obligations, which require identification and delineation of natural heritage.[97] WHC article 11, requires states to nominate appropriate properties for inclusion on the WHL, while article 12 provides protection for Cultural and Natural heritage properties that have not been included on the WHL. This enables WHC article 12 to protect the dugong habitat, even though it has not been listed. Japan’s failure to protect the dugong habitat under article 12 is a violation of its WHC obligations. Parties to the WHC are to avoid deliberate measures that “might damage directly or indirectly the cultural and natural heritage … situated on the territory of other States Parties to this Convention,”[98] whether or not it is listed on the WHL.[99] Here, the United States and Japan are taking “deliberate measures”[100] to build the heliport at Henoko, where it will damage the cultural and natural heritage of the Okinawan people,[101] a clear violation of the United States’ WHC obligations under article 6(3).[102]

B. Convention on Biological Diversity

The preamble of the CBD states that the contracting parties are “[c]onscious of the intrinsic value of biological diversity” along with the “cultural … and aesthetic values of biological diversity.”[103] Parties to the CBD affirm that they are also “[c]oncerned that biological diversity is being significantly reduced by certain human activities.”[104] Among the objectives of the CBD “are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.”[105] Sharing benefits derived from biodiversity components, with those who possess traditional knowledge of them, enables their profitable utilization while addressing local concerns.[106] Protecting these interests and relationships between resources, humans and their environment, minimizes destructive acts of exploitation, preserving biodiversity for all to enjoy.

As of Dec. 31, 2004, the CBD had 168 signatories and 188 parties on deposit with the United Nations.[107] The CBD entered into force on Dec. 29, 1993.[108] The United States signed the CBD on June 4, 1993, but failed to ratify it after transmission to the Senate.[109] Japan signed the CBD on June 13, 1992, and deposited their acceptance to it on May 28, 1993.[110] While Japan is a party to the CBD and bound by treaty obligations, the United States is bound only by those provisions that can be characterized as custom.

In characterizing the development of custom, Terry Anderson and Bishop Grewell note that “unanimous or near unanimous passage of resolutions and declarations by an international organizations such as the UN General Assembly constitute a basis for customary international law.”[111] Craig Carr and Gary Scott note that “90% of the world’s states subscribe to the principles contained [in the CBD],” and the absence of the United States ratification “should not hinder customary law formation.”[112] They further state that they believe the CBD “is an important step in the establishment of customary international law on the matter of biological diversity and that the remaining non-parties should consider its provisions as definitive in this area.”[113] In the case concerning the Gabcikovo-Nagymaros project, the International Court of Justice found that “The principle of sustainable development is … part of modern international law … by reason of its wide and general acceptance by the global community.”[114] Catherine Giraud-Kinley states that “the obligations set out in the Convention on Biological Diversity are formally binding in international law ….”[115] The United States has contributed to the international development of the CBD as custom, by submitting reports,[116] pledging funding support to the Secretariat for the CBD,[117] and promulgating guidance to enable government funded researchers to comply with the CBD when collecting genetic resources.[118] Arguably, the CBD is a codification of custom that the United States is now bound to respect, as international law.[119]

Japan has developed a National Strategy addressing biological diversity,[120] and submitted reports to the Secretariat of the Convention on Biological Diversity.[121] Natural Parks Law and Nature Conservation Laws have been enacted to protect Japan’s biodiversity components.[122] These practices are consistent with Japan’s obligations under the CBD.

Among the CBD goals for preservation of biological diversity are “sustainable use” and a “fair and equitable sharing of benefits arising out of the utilization of genetic resources” through in-situ conservation.[123] While conservation enactments are not new, the CBD’s promotion of sustainable use and sharing of derived benefits with developing countries and indigenous people is.[124] When providing financial resources for protection of biodiversity to developing countries, the CBD requires consideration of the dependent relationship that indigenous people in developing countries have with their environment’s biodiversity components.[125] It further requires that special consideration of the developing countries needs, along with their relationship to their ecosystem be taken, to help ensure survival of their traditional knowledge and ways of life.[126] Placing indigenous and local people in control of access to the practices of their traditional lifestyles and knowledge promotes their involvement in in-situ conservation, and discourages exploitation of local genetic resources by promoting sustainable use.[127] Contracting parties are obligated to consider and integrate biodiversity conservation objectives in national decision making,[128] and they are required to follow the “law of the sea”[129] in defining protected areas for biodiversity components in marine environments.[130]

The CBD provides for the protection of the habitat of components of biological diversity as part of in-situ conservation and extends this protection to habitat that is occasionally used like feeding grounds, breeding grounds, and migratory routes.[131] Dugong are known to frequent Henoko bay and feed upon its sea grass meadows.[132] Local community groups have banded together to protect the Henoko dugong habitat from the planned heliport and they should have the right to grant or deny access to that habitat under article 8(j) of the CBD. In-situ conservation of dugong habitat precludes building a heliport, over local objections, which will destroy dugong feeding grounds. Japan and the United States are violating CBD article 8 by failing to provide in-situ­ conservation for the dugong habitat and respecting the local community desires for this protection.

In order to promote sustainable use, CBD contracting parties shall “integrate consideration of … conservation … into their national decision making” and “adopt measures … to avoid or minimize adverse impacts on biological diversity.”[133] Minimizing adverse impacts requires “environmental impact assessment of its proposed projects” that may “have significant adverse effects on biological diversity” and including public participation in the assessment procedures.[134] “The Conference of Parties shall examine … issue[s] of liability, including restoration and compensation for damage to biological diversity …”[135] when adverse impacts are not minimized. The presence of qualified non-party state and other observers at the Conference of Parties enables wide scale participation in matters affecting biological diversity.[136] Rosemary Coombe notes that many indigenous groups “have used the CBD process to further establish legitimacy and support for the Draft Declaration on the Rights of Indigenous Peoples.”[137]

The CBD can affect other international rights and obligations when their exercise “would cause a serious damage or threat to biological diversity.”[138] The agreement to build a heliport at Henoko,[139] threatens biological diversity,[140] and Japan’s obligations under the SCC Realignment agreement[141] are affected by article 22 of the CBD because they would cause serious damage to biological diversity. A contracting party to the CBD could bring a claim to the Conference of Parties and request that Japan refrain from fulfilling its heliport construction obligations to the United States, because of the serious threat to biological diversity the heliport poses.[142]

Dispute settlement under the CBD should begin with negotiation, followed by third party mediation if negotiation is unsuccessful.[143] If mediation fails, the dispute will escalate to either arbitration or submission to the International Court of Justice (ICJ), based upon the parties’ previous declarations under article 27(3).[144] If the parties have not both agreed on escalation to the same destination, either arbitration or submission to the ICJ, then the dispute will go to a conciliation commission.[145]

C. Convention for the Safeguarding of the Intangible Cultural Heritage

The CSICH seeks to promote respect for and raise awareness of intangible cultural heritage at all levels.[146] The CSICH defines “Intangible Cultural Heritage” as “the practices, representations, expressions, knowledge, skills … and cultural spaces associated therewith - that communities, groups and in some cases individuals recognize as part of their cultural heritage.”[147] The CSICH seeks to safeguard this intangible cultural heritage, by preserving and transmitting it to future generations.[148] This requires identification, documentation, and preservation of traditional knowledge and practices[149] that exist at various abstract levels. Presumptively, the CSICH may represent emerging custom for the protection of intangible cultural heritage.

The CSICH currently has 49 signatories on deposit with UNESCO and entered into force on April 20, 2006.[150] The United States has not signed or ratified the CSICH.[151] When the UNESCO General Conference adopted the CSICH in 2003, the United States abstained from voting.[152] Japan however, is a party to the CSICH, having signed it and deposited its acceptance with UNESCO on June 15, 2004.[153] Japan’s laws for the protection of cultural property and its cultural property register, already protect several forms of intangible cultural heritage.[154] Japan created a trust fund with UNESCO for the preservation and promotion of intangible cultural heritage[155] and has been actively involved in the development and promotion of the CSICH.[156]

As a signatory to the CSICH, the Vienna Convention on the Law of Treaties (VCLT)[157] precludes Japan from undermining the intent of the CSICH.[158] In contrast, the United States’ failure to sign the CSICH, coupled with its abstention from the UNESCO vote on adopting the CSICH,[159] shows that it has no intent to subscribe to the CSICH. The CSICH is not yet recognized as representative of international law or custom, but I believe it represents a new regional, if not international, norm emerging from the Asian-Pacific states.[160]

Francesco Francioni has identified three soft law instruments that promote the “safeguarding of cultural diversity” which is closely related to intangible cultural heritage.[161] Francesco Francioni notes that “adoption of a soft law instrument is … the first step toward the establishment of a binding legal regime.”[162] The “UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage”[163] is more on point than the three instruments identified by Francesco Francioni, because it was passed on the same day that the CSICH was concluded. These soft law instruments point to an emerging international norm for the international protection of intangible cultural heritage.

Here, the absence of general practices and opinio juris of states related to the CSICH occurs because the CSICH has recently entered into force, this makes binding custom harder to identify.[164] The CSICH could however, signal efforts at codifying an emerging custom that has not yet gained the widespread recognition as customary international law. As Japan enacts domestic legislation to conform to the CSICH, the United States is bound to respect that legislation in its dealings with Japan under the terms of the 1998 US-Japan Logistics Support Agreement.[165] However, the application of some Japanese laws to the United States’ military forces in Japan, have been relaxed through the US-Japan Status of Forces Agreement[166] and the United States may seek a waiver from Japan’s cultural properties laws with respect to the heliport construction. Presently, Japan’s planned construction of a heliport for the United States’ use at Henoko, requires observation of Japan’s domestic laws that safeguard the intangible cultural heritage of local communities affected by the heliport.

The CSICH defines intangible cultural heritage and safeguarding in article 2, while article 11 requires states to involve “communities, groups and NGO’s” in the identification of intangible cultural heritage for safeguarding. The CSICH envisions that states will create a competent national authority to oversee its implementation and enforcement,[167] and states are to keep a regularly updated inventory of intangible cultural heritage.[168] CSICH article 15 encourages the “widest possible participation of communities and groups” in safeguarding activities for intangible cultural heritage, and contracting parties are expected to “undertake to cooperate” at all levels in safeguarding intangible cultural heritage.[169] Paul Kuruk criticizes the CSICH because it “does not address” the failure to follow regulations, adopted by states “for safeguarding [intangible] cultural heritage.”[170] Thus, cooperation between contracting parties, is the primary means of CSICH enforcement, after entry into force.

Here, decisions regarding the planned heliport relocation have been made, by the Japanese government, at the national and international level, ignoring concerns of the local communities most directly affected by them.[171] Compliance with VCLT obligations not to defeat the intent of the CSICH[172] requires Japan to address the local community’s preservation and protection concerns, in decisions regarding the planned heliport.[173] Presently, multiple layers of local government concern are being ignored by the national government of Japan.[174] Japan’s failure to involve and listen to the local communities in the decision making process, as required by CSICH article 11, defeats the object and purpose of the requirements for cooperation embodied in the CSICH’s articles 15 and 19, violating Japan’s obligations under the VCLT.[175] Japan’s failure to safeguard the relationship of the Ryukyu people with the dugong, defeats the object and purpose of CSICH articles 2 and 11-15, which define “safeguarding” and requires states to “take necessary measures to ensure the safeguarding of intangible cultural heritage present in its territory,” violates Japan’s VCLT obligations.[176]

The United States and Japan have treaty obligations as parties to the WHC. Japan is bound as a party to the CBD, and the United States is bound to respect the CBD as a codification of custom.[177] The CSICH now binds Japan since its entry into force. Japan’s legislative enactments that implement the CSICH, as well as the CSICH itself,[178] must be respected by the United States as Japanese domestic law under the 1998 Logistics Support Agreement. This precludes the United States from taking deliberate actions, like requesting construction of the planned heliport at Henoko, which might have significant adverse effects on biological diversity or intangible cultural heritage in Japan, without the consent and approval of the affected local communities, to the destruction of their cultural landscape.

IV. Mapping a Core for the Protection of Culture Landscapes

Illegality aside, these three conventions complement each other in protecting the cultural landscape. The WHC protects natural and artificial objects, and threatened species habitat, the CBD protects habitat along with its mutually existing species and people, and the CSICH protects the relationships between the people, animals and habitat. Since the WHC and the CBD already have become customary international law, my efforts will focus on the additional protection the CSICH will bring.

The WHC emphasizes preserving items of outstanding universal value as cultural property in the form of Cultural Heritage and Natural Heritage for the people of the world.[179] Cultural heritage consists of mankind’s achievements and triumphs over nature. Natural heritage is the unique and impressive creations of nature and “the habitat of threatened species of animals and plants.”[180] Japan’s Cultural Property Law extends WHC style protection to some animals and their habitats, as Natural Monuments.[181] Japan has begun reconciling their definition of cultural property with that of the WHC using “Cultural Landscapes,”[182] which can, and have been listed by other states, on the WHL,[183] filling a gap between Cultural Heritage and Natural Heritage.[184] Japan’s use of cultural landscapes recognizes the importance of the interactions of animals, plants and people with their environments and each other, increasing the domains of cultural property that Japan protects as World Heritage.[185]

The CBD protects the components of biological diversity including habitat, animals, and people that depend upon each other through in-situ conservation, sustainable use, and equitable shared of benefits derived from these components. In-situ conservation is required both inside and outside protected areas, using “environmentally sound … sustainable development”[186] to provide protection for whole ecosystems, enabling survival of viable populations.[187] Involvement of the local and indigenous communities that are living traditional lifestyles, “relevant to the conservation and sustainable use of biodiversity” encourages the sharing of their traditional knowledge, innovations and practices.[188] The importance of local and indigenous people’s traditional knowledge and lifestyle in relationship to their environment provides a critical element of the “cultural landscape.”[189]

The CSICH is emerging to protect the cultural traditions and relationships that develop between people, animals and environment, preserving the knowledge and experiences of man. The CSICH recognizes that communities, groups and cultural spaces derive value from each other[190] and seeks to preserve the components of community experience, including its folklore, language and sacred rituals as opposed to what Andrew Ross describes as “common culture.”[191] Intangible cultural heritage is passed from “generation to generation” and the traditional living practices and associated knowledge may be lost if efforts are not taken to preserve them.[192]

Toshiyuki Kono notes that the CSICH definition of “intangible cultural heritage” is very abstract, broad and open-ended as it is “manifested inter alia in the following domains …” which is a “sharp contrast” to Article 2 of the WHC “which clearly defines the Cultural Heritage.”[193] Kono views the WHL as the “elitism” of heritage, and urges Japan to better balance the “high culture and folklore culture to satisfy the aims” of the CSICH and its cultural property laws.[194] Avoiding this “elitism” can be accomplished by increasing the breadth of CSICH coverage, but widespread application will reduce the value of an intangible cultural heritage designation.

Because the CSICH defines intangible cultural heritage so broadly, who should have the right to decide what is protected? Loretta Todd would argue that “cultural autonomy”[195] should prevent the “cultural appropriation”[196] that occurs when the state selects the intangible cultural heritage to be preserved, and instead leave the defining right to the local people. The CSICH attempts to mitigate these concerns by encouraging widespread participation in safeguarding activities.[197] The Ryukyu people are exercising cultural autonomy to preserve their cultural heritage by bringing the suit Dugong v. Rumsfeld[198] to protect the dugong.

The CSICH provides for preservation of local and community knowledge in all countries, encouraging increased sharing of that knowledge, environments and practices by creating a mechanism to identify intangible cultural heritage.[199] The CSICH protection of “local and community knowledge” is more inclusive than the CBD emphasis on developing countries and indigenous people. Every state and locale can have “local and community knowledge” that deserves protection, regardless of developing or indigenous status. Japan does not recognize that the Ryukyuan’s merit protection as indigenous people,[200] but they can obtain protection of local community practices under Japan’s cultural properties law.[201]

While the WHC protects natural heritage in “precisely delineated” habitat areas of threatened species,[202] the CBD requires sustainable use and conservation management of biodiversity components, both inside and outside protected areas.[203] The CBD protection extends beyond precisely delineated areas[204] to include surrounding areas of known dugong habit and their migratory routes.[205] The CSICH preserves the relationship and practices of the Ryukyu people relating to the dugong in their natural habitat.

In summary, the WHC defines the natural and artificial elements of a cultural landscape, while the CBD provisions for in-situ conservation protect the biological components and genetic resources of the cultural landscape, and the broad definitions of the CSICH protect the intangible elements and relationships, which color and populate the experience of a cultural landscape, preserving the local community’s traditional knowledge of, and relationships with, these resources and cultural landscapes.

V. Merger to Save the Dugong Habitat

The dugong is part of the cultural heritage and landscape of Ryukyu, with its habitat including the Henoko bay.[206] Today’s endangered population of dugong can no longer sustain harvesting and the threats posed by loss of habitat, therefore the Ryukyu people desire to preserve the remaining dugong for posterity, in order to ensure the survival of their related, sacred practices.

While the WHC does not directly protect animals, dugong habitat, including the sea grass meadows on which it feeds, can be directly protected by the WHC, because they are a threatened species of animal.[207] However, the dugong is protected as a national monument[208] under Japan’s implementation of the WHC. Because Japan includes dugong on its cultural property register, the United States must recognize the dugong listing and extend them the same protection owed a World Heritage site. In spite of this protection, the United States continues to threatening their habitat by demanding the planned heliport’s construction.[209] Japan’s planned destruction of these important sea grass meadows[210] will violate the WHC protections for the habitat of endangered animals.[211]

The Ryukyuan relationship with the dugong is part of the intangible cultural heritage[212] that the CSICH was drafted to safeguard[213] for future generations. To safeguard the dugong as part of the Ryukyu cultural landscape, the CSICH encourages active involvement of local communities in management efforts.[214] In Henoko, the local community has acted upon their desire to protect and preserve the dugong habitat and ensure survival of this sacred relationship, by bringing a lawsuit.[215] Survival of the dugong is critical to revitalizing various aspects of this relationship with the dugong, and preventing its deterioration into a mere historical footnote.[216]

Local communities can prepare comments documenting Japan’s failure to protect the dugong relationship as a critique on Japan’s implementation of the CSICH for presentation to the CSICH Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage.[217] While this may provide a private remedy, the damage will accrue because the CSICH has only recently entered into force and significant construction may take place prior their chance to be heard. These concerns are being addressed in the court of public opinion, but by refocusing these efforts to address them as an “abuse of rights” in failing to comply with the CSICH, the Japanese government will be more willing to correct their violations. Alternatively, Japan could prospectively alter its interpretation of the CSICH and amend its laws to exclude protection for the dugong.

While arguments in Dugong v. Rumsfeld[218] rely upon the interpretation of the United States and Japanese implementations of the WHC,[219] other treaties like the CBD and CSICH can provide the dugong additional protection. The CBD extends the dugong in-situ habitat protection beyond the precisely delineated (but presently unidentified) boundaries required by the WHC, to areas surrounding known and suspected dugong habitat.[220] The principles of the CSICH recognize the importance of preserving the intangible relationship between the dugong and the Ryukyu people.[221] Without the dugong’s presence, this relationship and cultural landscape will cease to exist, resulting in the irreplaceable loss of intangible cultural heritage.

VIII. Conclusion

The dugong are protected Natural Monuments,[222] whose habitat is protected by both the WHC and CBD, and as part of the intangible cultural heritage under the CSICH. Japan needs to stand firm and live up to its international obligations and reject the United States’ demands for a heliport that will destroy dugong habitat. The importance of constructing a heliport for the United States’ use is outweighed by Japan’s legal obligations to conserve biological diversity and intangible cultural heritage for posterity. Compliance with its international obligations under the WHC, custom as codified by the CBD and the 1998 Logistics Support Agreement requires the United States to ask Japan for a different heliport location, instead of deliberately focusing upon a site that will destroy dugong habitat violating Japanese and international law. Dugong v. Rumsfeld[223] is a step in the right direction using the WHC implementing legislation,[224] but its final decision will come too late to protect the dugong from United States’ plans. The text of the SSC Realignment agreement[225] may be sufficient to allow the United States Department of Defense to argue that it took efforts to minimize the adverse environmental impacts at Henoko caused by the planned heliport, rendering moot the plaintiffs’ efforts in Dugong.

Planned construction of the heliport at Henoko violates international law. The United States and Japan are violating their WHC obligations by taking deliberate actions, with a goal of building the heliport at Henoko. Since this heliport will adversely affect dugong habitat, Japan is also violating its international obligations under the CBD and CSICH. These obligations require Japan to protect and preserve its World Heritage, Biological Diversity components and Intangible Cultural Heritage. The United States must comply with Japanese and International law in the heliport relocation, or release Japan from its logistics support obligations.

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[1] Security Consultative Committee Document, U.S.-Japan Alliance: Transformation and Realignment for the Future, Oct. 29, 2005, 10-13, available at http://www.defenselink.mil/news/Oct2005/d20051029document.pdf (last visited Nov. 21, 2005), [hereinafter SCC Realignment].

[2] Futenma Replacement Facility Concept Plan, Oct. 26, 2005, available at http://www.defenselink.mil/news/Oct2005/d20051029map.pdf (last visited Nov. 21, 2005).

[3] United Nations Environment Programme, Early Warning and Assessment Report Series, Dugong Status Report and Action Plan for Countries and Territories, 42, http://www.unep.org/dewa/pdf/dugong.pdf (last visited Nov. 21, 2005), [hereinafter UNEP Report].

[4] UNESCO Convention for the Protection of World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151, [hereinafter WHC].

[5] Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818, [hereinafter CBD].

[6] Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, available at http://nesdoc.unesco.org/images/0013/001325/132540e.pdf (last visited Oct. 16, 2005), [hereinafter CSICH].

[7] Okinawa Dugong (Dugong Dugon); Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Foundation; Save the Dugong Foundation; Dugong Network Okinawa; Committee Against Heliport Construction, Save Life Society; Anna Koshiishi; Takuma Higashionna; and Yoshikazu Makishi v. Donald H. Rumsfeld, in his official capacity as the Secretary of Defense; and U.S. Department of Defense, No. C03-4350, 2005 U.S. Dist LEXIS 3123 (N.D. Cal. 2005), [hereinafter Dugong v. Rumsfeld].

[8] National Historic Preservation Act Amendments of 1980 § 402, 16 U.S.C. § 470a-2 (2000).

[9] WHC, supra note 4.

[10] CBD, supra note 5.

[11] CSICH supra note 6.

[12] Surrender By Japan, Sep. 2, 1945, 59 Stat. 1733, 3 Bevans 1251; see also Toni M. Bugni, Note, The Continued Invasion: Assessing the United States Military Presence on Okinawa Through 1996, 21 SUFFOLK TRANSNAT’L L. REV. 85 (1997).

[13] Treaty of Peace With Japan, art. 3, Sept. 8, 1951, 3 U.S.T. 3169, 3 DOCUMENTS ON NEW ZEALAND EXTERNAL RELATIONS, THE ANZUS PACT AND THE TREATY OF PEACE WITH JAPAN 1180, (Robin Kay et al. eds., 1985).

[14] JOHN FOSTER DULLES, STATEMENT BY DULLES ON BEHALF OF THE UNITED STATES AS CO-SPONSOR OF THE DRAFT TREATY OF PEACE WITH JAPAN (1951), reprinted in 3 DOCUMENTS ON NEW ZEALAND EXTERNAL RELATIONS, THE ANZUS PACT AND THE TREATY OF PEACE WITH JAPAN 1135, 1140 (Robin Kay et al. eds., 1985); see also HUGH BORTON, JAPAN’S MODERN CENTURY 482, 485 (2d ed. 1970).

[15] Treaty of Mutual Cooperation and Security, Jan. 9, 1960, U.S.-Japan, 11 U.S.T. 1632.

[16] Agreement Between the United States of America and Japan Concerning Nanpo Shoto and Other Islands, Apr. 5, 1968, U.S.-Japan, 19 U.S.T. 4895.

[17] Okinawa: Preparatory Measures for Transfer of Administrative Rights, Mar. 3, 1970, U.S.-Japan, 21 U.S.T. 473.

[18] Agreement between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands, June 17, 1971, U.S.-Japan, 23 U.S.T. 446.

[19] Okinawa Prefecture, Land reversion and Other items in the SACO Final Report, http://www3.pref.okinawa.jp/site/view/contview.jsp?cateid=14&id=591&page=1 (last visited Nov. 6, 2005).

[20] Mitsuhiko A. Takahashi, Okinawa Dugong v. Rumsfeld: Extraterritorial Operation of the U.S. Military and Wildlife Protection Under the National Historic Preservation Act, 28 Environs Envtl. L. & Pol'y J. 181, 185 (2004).

[21] Okinawa Prefecture, Comparison between U.S. Military and Self Defense Force Bases in Okinawa and Mainland Japan, http://www3.pref.okinawa.jp/site/view/contview.jsp?cateid=14&id=685&page=1 (last visited Nov. 6, 2005).

[22] Takahashi, supra note 20, at 185-186, (“On September 4, 1995, three U.S. GIs abducted and raped a twelve-year-old Okinawan schoolgirl and abandoned her on a military beach. Admiral Richard C. Macke, commander of U.S. military operations in the Pacific, exacerbated the situation by commenting that the soldiers were "absolutely stupid … for the price they paid to rent the car [which they used for the crime], they could have had a girl." Expressing their smoldering resentments, Okinawan citizens protested vigorously against the U.S. military. Throughout the Okinawa prefecture, people young and old, liberal and conservative, from schoolchildren to politicians, gathered in rallies and demonstrations.”).

[23] The SACO Final Report on Futenma Air Station, http://www.jda.go.jp/e/defense_policy/saco/futenma.htm (last visited Nov. 20, 2005), [hereinafter SACO Final Report].

[24] Id. at para. 3.

[25] Agreement Amending the Agreement between the Government of the United States of America and the Government of Japan Concerning Reciprocal Provision of Logistic Support, Supplies and Services Between the Armed Forces of the United States of America and the Self-Defense Forces of Japan, Apr. 28, 1998, U.S.-Japan, art. IV, 1998 U.S.T. LEXIS 163, 3, [hereinafter 1998 Logistics Support Agreement].

[26] Id. at 4.

[27] SCC Realignment, supra note 1.

[28] SACO Final Report, supra note 23, at para. 1.

[29] Id.

[30] Chalmers Johnson, Essay, The Okinawan Rape Incident and the End of the Cold War in East Asia, 27 CAL. W. INT’L. L. J. 389, 393 (1997).

[31] Id.

[32] SACO Final Report, supra note 23.

[33] The Okinawa Times Weekly Times 2000.9.2, Tokyo Waffles on the 15 Year Limit, Sep. 2, 2000, http://www.okinawatimes.co.jp/eng/20000902.html (last visited Nov. 20, 2005); see also infra note 171.

[34] Takahashi, supra note 20, at 188.

[35] SACO Final Report, supra note 23, at para. 1.

[36] Japan Policy Research Institute, JPRI Occasional Paper No. 14: June 1998, The U.S. General Accounting Office’s Report on the Proposed Marine Corps Floating Heliport Off Okinawa, Chalmers Johnson, http://www.jpri.org/publications/occasionalpapers/op14.html (last visited Nov. 6, 2005).

[37] Asahi Shimbun, Tokyo to Revisit Futenma Plans, Oct. 10, 2005, http://www.asahi.com/english/Herald-asahi/TKY200510100107.html (last visited Oct. 16, 2005).

[38] See illus. cited supra note 2; see also UNEP Report, supra note 3.

[39] Shinichi Hanawa, An Action Plan for Protecting Okinawa’s Dugong, Dec. 13, 2003, at 2, http://www.wwf.or.jp/lib/wildlife/smm-sw2.pdf (last visited Nov. 26, 2005), (the planned heliport’s exact location and size have changed to that proposed in the SCC Realignment agreement supra note 1, [cf. illus. supra note 2], but most of Hanawa’s concerns still apply.).

[40] See UNEP Report supra note 3; see also illus. note 2.

[41] Earthjustice, Urgent Cases: Okinawa Dugong & Proposed Airbase, http://www.earthjustice.org/urgent/display.html?ID=154 (last visited Oct. 16, 2005).

[42] Dugong v. Rumsfeld, supra note 7.

[43] Id. at 3155 “it would amount to a legal absurdity for this court to hold that, as a matter of law, a facility constructed on behalf of and for the use of the United States is not a federal undertaking, given the statutes explicit inclusion of any “project, activity, or program … carried out by or on behalf of the agency.”; See 16 U.S.C. § 470w(7) (2000), for the applicable definition of “undertaking.”

[44] National Historic Preservation Act Amendments of 1980 § 402, 16 U.S.C. § 470a-2 (2000), (This is part of the United States’ WHC implementing legislation.).

[45] Id.

[46] Asahi Shimbun, U.S. says Futenma Switch is Possible, Feb. 25, 2005, http://www.asahi.com/english/politics/TKY200502250147.html (last visited Oct. 16, 2005).

[47] Asahi Shimbun, Access Eased to U.S. Military Crash Sites, Apr. 2, 2005, http://www.asahi.com/english/Herald-asahi/TKY200504020120.html (last visited Oct. 16, 2005).

[48] JapanUpdate.com, Carrier Aircraft Irritate Already Unhappy Ginowan Residents, Sep. 25, 2005, http://www.japanupdate.com/en/?id=6523 (last visited Oct. 16, 2005).

[49] Id.

[50] Asahi Shimbun, Rumsfeld Drops Visit to Tokyo, Oct. 7, 2005, http://www.asahi.com/english/Herald-asahi/TKY200510070156.html (last visited Oct. 16, 2005).

[51] Asahi Shimbun, Japan to Back U.S. Offshore Heliport, Oct. 13, 2005, http://www.asahi.com/english/Herald-asahi/TKY200510130086.html (last visited Oct. 16, 2005).

[52] SCC Realignment, supra note 1, at 12; see also Asahi Shimbun, U.S. heliport location OK’d, Oct. 27, 2005, http://www.asahi.com/english/Herald-asahi/TKY200510260304.html (last visited Oct. 20, 2005).

[53] Asahi Shimbun, U.S.: Marines stay if Nago plan fails, Nov. 9, 2005, http://www.asahi.com/english/Herald-asahi/TKY200511090154.html (last visited Nov. 20, 2005).

[54] U.S. Fish & Wildlife Service, Species Profile for Dugong, http://ecos.fws.gov/species_profile/servlet/gov.doi.species_profile.serv... (last visited Dec. 6, 2005).

[55] International Union for Conservation of Nature and Natural Resources, The World Conservation Union, http://iucn.org/ (last visited Dec 6, 2005).

[56] The 2004 IUCN Red List of Threatened Species: Dugong Dugon, http://www.redlist.org/search/details.php?species=6909 (last visited Dec. 6, 2005).

[57] First Amended Complaint for Declaratory and Injunctive Relief at 3, Okinawa Dugong (Dugong Dugon); Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Foundation; Save the Dugong Foundation; Dugong Network Okinawa; Committee Against Heliport Construction, Save Life Society; Anna Koshiishi; Takuma Higashionna; and Yoshikazu Makishi v. Donald H. Rumsfeld, in his official capacity as the Secretary of Defense; and U.S. Department of Defense, No. C-03-4350 (MHP), (N.D. Cal. Nov. 24, 2003); see also Takahashi, supra note 20, at 189-190; cf. UNEP Report, supra note 3, at 42, (surveys sighted at least six dugong off Okinawa, but no accurate population estimate is available.).

[58] Takahashi, supra note 20, at 189; see also Seagrass Watch, Henoko, http://www.seagrasswatch.org/Okinawa.html (last visited Nov. 21, 2005), (surveys found dugong feeding trails in the sea grass at Henoko.).

[59] UNEP Report, supra note 3, at 42.

[60] Id. at 42; see also Dugongs Stranding Data, Dugongs Stranding Data in Okinawa, http://www.okinawa-u.ac.jp/~tsuchida/Save-Dugong/save/stranding.html (last visited Nov. 20, 2005).

[61] Okinawa and Ryukyu are synonymous. The Okinawa islands were the independent Ryukyu Kingdom until they were conquered by Japan in 1609.

[62] Declaration of Isshu Maeda in Support of Plaintiffs’ Opposition to Motion to Dismiss at 2-3, Okinawa Dugong (Dugon Dugon); Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Foundation; Save the Dugong Foundation; Dugong Network Okinawa; Committee Against Heliport Construction, Save Life Society; Anna Koshiishi; Takuma Higashionna; and Yoshikazu Makishi v. Donald H. Rumsfeld, in his official capacity as the Secretary of Defense; and U.S. Department of Defense, No. C-03-4350 (MHP), (N.D. Cal. June 21, 2004), [hereinafter Declaration of Maeda], citing FUYU IHA, MYTHOLOGY OF RYUKYU (1965).

[63] Id. at 3-4, citing “Shimoji Village on Irabu Island Swallowed by Huge Wave” in OLD CHRONICLES OF MIYAKO (1748), reprinted in KENPU INAMURA, EXPLICATION OF MIYAKO ISLAND CHRONICLES AND HISTORICAL POEMS (1977).

[64] Id. at 4, citing 2 ORIGINS OF THE RYUKYU (1713), and JO HOUKOU, 6 “PRODUCTS AND PRODUCE” OF THE CHUZAN DENSHINROKU (1721).

[65] Naha is the capital city of the Okinawa prefecture.

[66] Id. at 4, citing MOMEHEI SUZUKI, ABOUT THE OKINAWA DUGONG (1915); CHOEI KINJO, 2 COMPLETE WORKS OF CHOEI KINJO (1974).

[67] Id. at 6, citing HARUMI SHIMABUKURO, ABOUT THE BUTTERFLY-SHAPED BONE OBJECTS (1991).

[68] Id. at 4-5.

[69] Id. at 6-8.

[70] Id. at 8-10.

[71] Law for Protection of Cultural Properties, art. 2, translated in http://www.tobunken.go.jp/~kokusen/ENGLISH/DATA/Htmlfg/japan/japan01.html [hereinafter Cultural Properties Law], (last visited Oct. 17, 2005), (cultural properties protected under this law are defined to include “animals … which possess a high scientific value in and for this country. [and are called “monuments.”]).

[72] Declaration of Sekine Takamichi in Support of Plaintiffs’ Opposition to Motion to Dismiss at 1-2, Okinawa Dugong (Dugong Dugon); Center for Biological Diversity; Turtle Island Restoration Network; Japan Environmental Lawyers Foundation; Save the Dugong Foundation; Dugong Network Okinawa; Committee Against Heliport Construction, Save Life Society; Anna Koshiishi; Takuma Higashionna; and Yoshikazu Makishi v. Donald H. Rumsfeld, in his official capacity as the Secretary of Defense; and U.S. Department of Defense, No. C-03-4350 (MHP), (N.D. Cal. June 21, 2004), [hereinafter Declaration of Takamichi], (“The Okinawa Dugong has been designated for protection as a cultural property in Japan on three separate occasions. Most recently the Okinawa Dugong was designated by the Government of Japan on May 15, 1972, as protected Natural Monument Number 947 on the Japanese Register of Historic Places, Places of Scenic Beauty and/or Natural Monuments (Japanese Register) and pursuant to Japanese Law.”).

[73] Dugong v. Rumsfeld at 27, supra note 7, (“In light of the many similarities between the lists generated by the Law for the Protection of Cultural Properties and the NHPA, the Japanese law is an “equivalent of the National Register” within the meaning of [16 U.S.C.] section 470a-2.”).

[74] Declaration of Takamichi at 6-7, supra note 72 (“Pursuant to the Ryukyu [U.S. Controlled] Government’s Cultural Properties Protection Law, on January 7, 1955, the Ryukyu Cultural Properties Protection Committee designated the Okinawa Dugong as a Natural Monument.”, “The 1950 Japanese Cultural Protection Law[‘s Criteria is identical to the 1955 Ryukyu Cultural Protection Law] … except that the word “Japan” was replaced with the word “Ryukyu….” Additionally, the Ryukyu Government Official Gazette Notice states that “[the Okinawa Dugong] has been designated a natural monument since before WWII.” This suggests that the Okinawa Dugong had been designated a natural monument under the 1919 Law for the Preservation of Historic Sites, Scenic Locations and Natural Monuments, which was a predecessor of the 1950 Cultural Properties Protection Law.”); see also UNEP Report, supra note 3, at 43.

[75] See supra text accompanying note 72.

[76] WHC, supra note 4.

[77] CBD, supra note 5.

[78] CSICH supra note 6.

[79] WHC, arts. 1-3, 16, supra note 4.

[80] WHC, art. 1, supra note 4, (Cultural Heritage consists of monuments, groups of buildings and sites which are works of man.).

[81] WHC, art 2, supra note 4, (Natural Heritage consists of “natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”).

[82] Operational Guidelines: Establishment of the World Heritage List, Criteria for the inclusion of cultural properties in the World Heritage List, http://whc.unesco.org/opgulist.htm [hereinafter WHL Guidelines] (last visited Nov. 20, 2005).

[83] WHC, art. 12, supra note 4, (WHL listing protections are inclusive, not exclusive.).

[84] Conventions, Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, Nov. 16, 1972, http://portal.unesco.org/la/convention.asp?KO=13055&language=E&order=alpha (last visited Dec. 12, 2005).

[85] Id.

[86] Id.

[87] National Historic Preservation Act Amendments of 1980 § 402, 16 U.S.C. § 470a-2 (2000).

[88] 16 U.S.C. § 470a-2, (2000), (“Prior to the approval of any Federal undertaking outside the United States which may directly and adversely affect a property which is on the World Heritage list or on the applicable country’s equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects.”).

[89] UNESCO World Heritage Centre – World Heritage List, http://whc.unesco.org/en/list/?search=&search_by_country=united+states&t... (last visited Oct. 17, 2005).

[90] National Register of Historic Places, National Parks Service, http://www.cr.nps.gov/nr/ (last visited Nov. 20, 2005), (This is the United States’ domestic equivalent of the WHL.).

[91] Summary of Japan’s 2003 Section I, periodic report to World Heritage Committee, http://whc.unesco.org/archive/periodicreporting/cycle01/section1/jp-summ... (last visited Oct. 17, 2005), (Some of these laws are Natural Heritage protection laws, including the Natural Conservation Law of 1973, the National Parks Law of 1957, as amended in 2002, and the Forest law of 1951. Japan’s Cultural heritage protection consist of a “Cultural Master Plan” and “Basic Principles regarding the promotion of Culture & Arts” that are being formulated.).

[92] Cultural Properties Law, supra note 71.

[93] UNESCO World Heritage Centre – World Heritage List, http://whc.unesco.org/en/list/?search=&search_by_country=japan&type=&reg... (last visited Oct. 17, 2005).

[94] Gusuku Sites and Related Properties of the Kingdom of Ryukyu – UNESCO World Heritage Centre, http://whc.unesco.org/en/list/972 (last visited Nov. 12, 2005); See also Advisory Body Evaluation, Ryukyu Sites (Japan) No. 972, http://whc.unesco.org/archive/advisory_body_evaluation/972.pdf (last visited Nov. 12, 2005).

[95] The Report of the Study on the Protection of Cultural Landscapes Associated With Agriculture, Forestry, and Fisheries, at 27, http://www.bunka.go.jp/english/pdf/nourinsuisan.pdf (last visited Nov. 6, 2005), (Cultural Landscapes are landscapes of high value which exist against the background of the nature, history and culture of agricultural, forestry, fishery communities, having close relation with traditional industries and modes of life, and embraces a unique land use or natural feature representative of the area.).

[96] Id. at 9.

[97] Listing these sea grass meadows as protected dugong habitat would also preclude the current use of the Henoko bay as a training ground for amphibious assault vehicles, making Camp Schwab virtually useless to the United States military for anything other than a recreation area.

[98] WHC, art. 6(3), supra note 4.

[99] WHC, art. 12, supra note 4.

[100] See supra text accompanying note 43.

[101] UNEP Report, supra note 3, at 42.

[102] Even the United States military’s current use of the Henoko coastline as an amphibious training area causes damage to the coral reefs off Henoko.; see Military attitude on AAV sinking irritates Okinawans – Japan Update.com, July 14, 2005, http://www.japanupdate.com/en/?id=6407 (last visited Nov. 28, 2005).

[103] CBD, preamble, supra note 5.

[104] Id.

[105] CBD, art. 1, supra note 5.

[106] CBD, art. 8(j), supra note 5.

[107] 2 Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 2004, 489 (2004).

[108] Id.

[109] Id.; see also Convention on Biological Diversity, pending Nov. 20, 1993, 1992 U.S.T. Lexis 188, 1.

[110] See source cited supra note 107.

[111] Terry L. Anderson & J. Bishop Grewell, It isn’t Easy Being Green: Environmental Policy Implications for Foreign Policy, International Law, and Sovereignty, 2 CHI. J. INT’L L. 427, 433 (2001).

[112] Craig L. Carr & Gary L. Scott, Multilateral Treaties and the Environment: a Case Study in the Formation of Customary International Law, 27 DENV. J. INT’L L. & POL’Y 313, 324-325 (1999).

[113] Id. at 325.

[114] Case Concerning the Gabcikovo-Nagymaros Project, (Hungary v. Slovakia), 1997 I.C.J. 7, 95 (Sep. 25).

[115] Catherine Giraud-Kinley, The Effectiveness of International Law: Sustainable Development in the South Pacific Region, 12 GEO. INT’L ENVTL. L. REV. 125, 155 (1999).

[116] United States Department of Agriculture, National Report on Sustainable Forests – 2003, http://www.biodiv.org/doc/world/us/us-nr-vfe-en.pdf (last visited Nov. 20, 2005).

[117] Parties to the CBD / Cartagena Protocol on Biosafety, Trust Funds of the Convention on Biological Diversity / Cartagena Protocol on Biosafety, http://biodiv.org/world/parties.asp?tab=1&fin=bya#us (last visited Nov. 27, 2005), (In 2005, the United States pledged $100,000 to the General Trust Fund for the Convention on Biological Diversity.).

[118] Information for U.S. Government Funded Researchers Collecting in Situ Genetic Resources Outside the United States, http://www.state.gov/g/oes/rls/or/25962.htm (last visited Nov. 9, 2005).

[119] Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004), (“For two centuries we have recognized that the domestic law of the United States recognizes the law of nations.”).

[120] National Strategy of Japan on Biological Diversity, Oct. 31, 1995, http://www.env.go.jp/en/pol/nsj/index.html (last visited Nov. 7, 2005).

[121] National Reporting, http://www.biodiv.org/world/reports.aspx?type=all&alpha=J (last visited Nov. 7, 2005).

[122] Japan Thematic Report on Protected Areas, 7, http://www.biodiv.org/doc/world/jp/jp-nr-pa-en.pdf (last visited Nov. 7, 2005).

[123] CBD, art. 1, supra note 5.

[124] Id.

[125] CBD, art. 20, supra note 5.

[126] CBD, art. 20, supra note 5.

[127] CBD, art. 8, supra note 5.

[128] CBD, art. 6, supra note 5.

[129] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

[130] CBD, art. 22(2), supra note 5, (“Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.”).

[131] CBD, art. 8, supra note 5.

[132] UNEP Report, supra note 3, at 42-43.

[133] CBD, art. 10, supra note 5.

[134] CBD, art. 14, supra note 5.

[135] Id. (“…except where such liability is a purely internal matter.”).

[136] CBD, art. 23(5), supra note 5, (Including qualified NGO’s which may request such observer status.).

[137] Rosemary J. Coombe, Works in Progress: Traditional Knowledge, Biological Diversity, and Intellectual Property in a Neoliberal Era, in GLOBALIZATION UNDER CONSTRUCTION 273, 286 (Richard Warren Perry & Bill Maurer, eds., 2003).

[138] CBD, art. 22(1), supra note 5.

[139] SCC Realignment, supra note 1.

[140] UNEP Report, supra note 3.

[141] SCC Realignment, supra note 1.

[142] CBD, art. 23, supra note 5.

[143] CBD, art. 27(1),(2), supra note 5

[144] CBD, art. 27(3), supra note 5, (states may agree to either, or both, arbitration or submission to the ICJ if their disputes cannot be solved by negotiation or mediation.).

[145] CBD, art. 27(4), supra note 5; see CBD, annex 2, pt. 2 supra note 5.

[146] CSICH, art. 1, supra note 6.

[147] CSICH, art. 2, supra note 6, (Intangible Cultural Heritage is manifested in domains of: “(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.”).

[148] CSICH, art. 1, supra note 6.

[149] CSICH, art. 2(3), supra note 6.

[150] UNESCO, Convention on the Safeguarding of the Intangible Cultural Heritage, States Parties, http://portal.unesco.org/la/convention.asp?language=E&KO=17116 (last visited May. 27, 2006).

[151] UNESCO, United States of America, Non-Ratified Conventions, http://portal.unesco.org/la/conventions_by_country.asp?contr=US&language... (last visited Oct 16, 2005).

[152] Educational and Cultural Issues: UNESCO Instruments: Cultural Heritage, 2003 DIGEST § 14, at 832.

[153] UNESCO, Japan, Ratified Conventions, http://portal.unesco.org/la/conventions_by_country.asp?contr=JP&language... (last visited Oct 16, 2005).

[154] Cultural Properties Law, arts. 56-3 to 56-21 supra note 71.

[155] Japan Funds-In-Trust: UNESCO Culture Sector, http://portal.unesco.org/culture/en/ev.phpURL_ID=28439&URL_DO=DO_TOPIC&U... (last visited Nov. 7, 2005).

[156] Toshiyuki Kono, The Basic Principles of the Convention for Safeguarding of Intangible Heritage: A Comparative Analysis with the Convention for Protection of World Natural and Cultural Heritage and Japanese Law, http://www.jpf.go.jp/e/culture/news/0412/img/pdf/report05.pdf (last visited Dec. 12, 2005).

[157] Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331, [hereinafter VCLT].

[158] Id. at art. 18, (State signatories have an “Obligation not to Defeat the Object and Purpose of a Treaty Prior to Its Entry Into Force.”).

[159] Educational and Cultural Issues: UNESCO Instruments: Cultural Heritage, supra note 152.

[160] See source cited supra note 150, (Eight states from the Asia-Pacific region have ratified the CSICH: Bhutan, China, India, Japan, Mongolia, Pakistan, Republic of Korea, and Vietnam.).

[161] Francesco Francioni, Diversity or Cacophony?: New Sources of Norms in International Law Symposium: Article: Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, 25 MICH. J. INT’L L. 1209, 1225-1226 (2004), (the three instruments are: UNESCO Declaration of Principles of International Cultural Cooperation, Paris, Nov. 4, 1966, UNESCO’s Standard-Setting Instruments, IV.C (1994), available at http://unesdoc.unesco.org/images/0011/001140/114048e.pdf#page=82 (last visited Dec. 6, 2005); The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135, U.N. GAOR, 47th Sess., Agenda Item 97(b), U.N. Doc. A/RES/47/135 (1993); UNESCO Universal Declaration on Cultural Diversity, Nov. 2, 2001, UNESCO Doc. 31C/Res. 25, Annex 1 (2001).

[162] Id. at 1227.

[163] UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, Oct. 17, 2003, UNESCO Doc. 32 C/Res. 33 (2003).

[164] Although, relevant general practices and opinio juris may exist for the soft law instruments identified by Francesco Francioni.

[165] 1998 Logistics Support Agreement, supra note 25.

[166] Agreement Under Article VI of the Treaty of Mutual Cooperation and Security: Facilities and Areas and the Status of United States Armed Forces in Japan, U.S.-Japan, Jan. 19, 1960, 11 U.S.T. 1652; see also Jaime M. Gher, Comment, Status of Forces Agreements: Tools to further Effective Foreign Policy and Lessons To Be Learned from the United States-Japan Agreement, 37 U.S.F. L. REV. 227 (2002).

[167] CSICH, art. 13(b), supra note 6.

[168] CSICH, art. 12, supra note 6.

[169] CSICH, art.19, supra note 6.

[170] Paul Kuruk, Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage, 5 MACQUARIE J. INT’L & COMP. ENVTL. L. 111, 122-123 (2004), available at http://www.austlii.edu.au/au/journals/MqJICEL/2004/5.html (last visited Nov. 12, 2005).

[171] The Okinawa Times Weekly Times 1998.2.21, Continuing Confusion over Heliport Proposals, Feb. 21, 1998, http://www.okinawatimes.co.jp/eng/19980221.html, (last visited Nov. 26, 2005), (the Mayor of Nago granted approval for heliport construction after a non-binding local referendum passed in which 53% of the vote was opposed to the heliport construction.).

[172] VCLT, art. 18, supra note 157.

[173] CSICH, art. 15, supra note 6.

[174] Asahi Shimbun, 14 Assemblies Rap Realignment of U.S. Military, Nov. 15, 2005, http://www.asahi.com/english/Herald-asahi/TKY200511150094.html (last visited Nov. 26, 2005).

[175] VCLT, art. 18, supra note 157.

[176] Id.

[177] See Carr & Scott, supra note 112.

[178] See THE CONSTITUTION OF JAPAN art. 98(2). (“The treaties concluded by Japan and established laws of nations shall be faithfully observed.”, In Japan, treaties may be the supreme law of the land.).

[179] WHC, preamble, arts. 1-2, supra note 4.

[180] WHC, art. 2,

[181] Cultural Properties Law, art. 2(4), supra note 71; see Dugong v. Rumsfeld at 25, n.3, supra note 7, (“Species are entitled to protection for their cultural value in many nations. Some, like Japan, protect culturally significant species directly; others, like the United States, protect culturally significant species by protecting the location in which the significance is expressed.”).

[182] WHL Guidelines, 24(b)(i), 35-42, supra note 82, (“in the case of cultural landscapes their distinctive character and components…. associative cultural landscape[s] … [are] justifiable by virtue of the powerful religious, artistic or cultural associations of the natural element….).

[183] See Rice Terraces of the Philippine Cordilleras, http://whc.unesco.org/en/list/722 (last visited Dec. 12, 2005).

[184] The Report of the Study on the Protection of Cultural Landscapes Associated With Agriculture, Forestry, and Fisheries, 52, http://www.bunka.go.jp/english/pdf/nourinsuisan.pdf (last visited Nov. 6, 2005). (Among the elements Japan finds composing the scientific value of a natural monument are: “Plants and Animals along with the elements composing the habitats, breeding grounds, migration spots or spots where they naturally occur; geological features and minerals; elements composing the land such as the water source which has close relation with designated plants or animals and their habitats, etc.”).

[185] Id.

[186] CBD, art. 8(e) supra note 5.

[187] CBD, art. 8, supra note 5.

[188] Id.

[189] WHL Guidelines, 24(b)(i), 35-42, supra note 82.

[190] CSICH, preamble, supra note 6.

[191] Andrew Ross, Components of Cultural Justice, in LAW IN THE DOMAINS OF CULTURE 203, 214 (Austin Sarat & Thomas R. Kearns, eds., 1998), (“Dominant cultural groups always fare best under the rule of the gender-free, colorblind, heteronormative “common culture.” … It is such a “common culture” that traditionally operates as affirmative action for privileged [citizens].”).

[192] CSICH, art. 1, supra note 6.

[193] Kono, at 5-7, supra note 156.

[194]Id.

[195] Loretta Todd, Notes on Appropriation, 16 PARALLELLOGRAME 24, (1990), (“a right to one’s origins and histories as told from within the culture and not as mediated from without.”).

[196] Id. (“Appropriation occurs when someone else speaks for, tells, defines, describes, represents, uses or recruits the images, stories, experiences dreams of others for their own. Appropriation also occurs when someone else becomes the expert on your experience and is deemed more knowledgeable about who you are than yourself.”).

[197] CSICH, art. 15, supra note 6.

[198] Dugong v. Rumsfeld, supra note 7.

[199] CSICH, arts. 11-14, supra note 6.

[200] United Nations Human Rights Website, Comments (summary) of the Japanese Government on the Concluding Observations adopted by the Committed on the Elimination of Racial Discrimination on March 20, 2000 regarding the initial and second periodic report of the Japanese Government, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/cbe5e3370454667bc1256aa700473a65?Opendocument (last visited Nov. 12, 2005), (Those who live in Okinawa prefecture or are natives of Okinawa are of the Japanese race, and they are not generally considered to be a group of people who have biological or cultural characteristics different from those of the Japanese race); but see Andrew Daisuke Stewart, Kayano v. Hokkaido Expropriation Committee Revisited: Recognition of Ryukyuans as a Cultural Minority Under the International Covenant on Civil and Political Rights, an Alternative Paradigm for Okinawan Demilitarization, 4 Asian-Pacific L. & Pol’y J. 307 (2003).

[201] Cultural Property Law, art. 2(3), supra note 71.

[202] WHC, arts. 2, supra note 4.

[203] CBD, art. 8, supra note 5.

[204] WHC, arts. 2, 12, supra note 4, (Art. 2 requires that habitat areas of threatened animals and plants be precisely delineated its boundaries, but by reading art. 12 broadly, habitat extending beyond identified boundaries may also deserve protection.).

[205] CBD, art. 8, supra note 5.

[206] UNEP Report at 42, supra note 3.

[207] WHC, art 2, supra note 4, (“… areas which constitute the habitat of threatened species of animals …”).

[208] See supra text accompanying note 74.

[209] See Asahi Shimbun, supra note 53.

[210] UNEP Report, supra note 3 at 42.

[211] WHC, art 2, supra note 4.

[212] CSICH, art. 2(2), supra note 6, (social practices, rituals, and festive events…knowledge and practices concerning nature and the universe.).

[213] CSICH, art. 2(3), supra note 6, (“Safeguarding” means measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through and non-formal education, as well as revitalization of various aspects of such heritage.”).

[214] CSICH, art. 15, supra note 6.

[215] Dugong v. Rumsfeld, supra note 7.

[216] CSICH, art. 2, supra note 6, (“Safeguarding” means measures aimed at … protection … [and] revitalization of the various aspects of such [intangible cultural] heritage.).

[217] CSICH, art. 8(4), supra note 6.

[218] Dugong v. Rumsfeld, supra note 7, (a major issue is whether or not building the heliport is a “federal undertaking” requiring review for minimizing adverse effects of the “federal undertaking” on world heritage properties. This issue may be muted under a rational basis analysis of the SCC Realignment agreement, supra note 1, which includes the statement “Both sides considered several factors … including … [m]inimization of adverse environmental impacts …” in its text, without ever addressing the sufficiency of the review conducted.).

[219] WHC, supra note 4.

[220] CBD, art. 8, supra note 5.

[221] CSICH, arts. 2, 11-15, supra note 6. (Requires states to involve local communities in taking necessary measures to safeguarding the intangible cultural heritage.).

[222] See supra text accompanying note 74.

[223] Dugong v. Rumsfeld, supra note 7.

[224] See supra test accompanying note 88.

[225] SCC Realignment, supra note 1; See also text accompanying note 218.