Japan is notorious as a breeding ground for industrial disease: Minamata disease, Itai-itai disease, Yokkaichi disease are the big ones; induced by air and water pollution, crippling and killing thousands of people over decades. It is not surprising that asbestos is used and abused as it if were as innocuous as cardboard.
The most infamous of the diseases, Minamata disease, was in fact mercury poisoning. Many thousands of people, residents of fishing villages on the coast of the Yatsushiro Sea, were affected by the consumption of fish and water poisoned by industrial waste. The poisoning caused paralysis, mental disorders and birth defects.
Although the pollution was at its worst in the late 1950s, it continues even today, at lesser levels. Minimata compensation cases have been running for over 20 years with little reward.
A recent ‘victory’ has been reported (Sydney Morning Herald 26.3.93, p.8), in which 105 victims won a total of $A6 million dollars in damages. Significantly the finding was against not only the polluting company, but also against the local area government.
Part of Japan’s appalling record and reputation in this area might be explained by examining the gap between government and people. The ghost of a feudal hierarchy haunts relations between the rulers and the ruled. There is plenty of evidence that the people are not nearly as tolerant as the government of environmental abuse.
Fighting the good fight for pollution victims is the Japan Federation of Bar Associations (the JFBA). In effect, it is a law society; membership is a condition of practice as a lawyer. It is surprisingly active in campaigns involving issues which do not directly promote the profession, with a strong record in advocating pollution controls.
The JFBA commits itself to ‘working on traditional human rights . . . to support liberty and rights of citizens . . . research and studies on . . . pollution, environmental protection and consumer problems [and] to reform the systems of justice and law’ (Booklet 1988).
Although ironic in the light of Japan’s aggressive exploitation of natural resources in its region, it is the JFBA which continues to lobby for international recognition of environmental standards. With an agenda like this, the JFBA has its work cut out in Japan.
In a system with no contingency fees and no orders for professional costs, the industrial disease cases have been run for little or no fee. Within the limits of the system, compensation has been sought for victims o f the pollution diseases, though often thwarted by government and bureaucracy.
Prevention being preferable to an elusive and inadequate cure, the JFBA proposed the existence of an environmental right, as a fundamental human right, as early as 1970.
In theory, the environmental right flows from constitutional provisions which guarantee individual dignity and the right to a standard of wholesome living. The natural environment, as an asset of all people, should be above any consideration of private property and economic interest. The right to enjoy and to be a part of that environment is fundamental to the human condition, and that right should therefore be the basis for an injunction to prevent damage to the environment So goes the theory. The simplicity of its premise is easily understood on learning o f the full horror of the industrial diseases.
Although the theory of a fundamental environmental right is alive and well, in the real world of litigation and enforcement it is scarcely an embryo. What effective rights to the environment there are in Australia are statutory or in the common law. In either case, standing to litigate is dependent on a private right akin to a property right. The requirement for a property right is the very antithesis of an environmental right.
Conventional legal theory raises standing as a major barrier to the practicality o f an environmental right But in Japan they are trying. The codified civil system has a sh o t history in Japan, with no indigenous basis and a postwar, Anglo-American influence. The Supreme Court can be arbitrary in its decisions, interpreting codes and statutes as necessary to get the desired and ‘just’ result. Precedents can be followed or ignored as can opinions of academics.
Time and again the JFBA has tried to injunct industrial development on the basis that nearby residents have a right to the environment. Applicants have consistently been denied standing, although this is usually only decided on appeal; plaintiffs are often successful in the lower courts. The Supreme Court interprets the constitutional guarantees of dignity and standards of living conventionally. The guarantees translate into duties of the State, not rights of the individual — an individual’s interest in constitutional guarantees is reflective, not concrete. And besides, say the courts, if we are to consider an environmental right, perceptions of the environment are fluid, not universal and constant It is therefore sufficient to protect personal and property rights, rather than to look for a right common to all.
The Japanese Supreme Court in 1981 denied residents near Osaka airport an injunction against night flights. Although the residents who started the case in 1969 had been successful through the lower courts, the Supreme Court saw no civil ‘right’ to a healthy environment.
But there have been victories. In lower courts applicants have succeeded by showing a common interest in maintaining a state of affairs. The right to cross a road, or the right to not have to live near a freeway, may not strike us as a legal interest to found an injunction, but it has impressed the Japanese District Courts.
A definition of ‘necessary standing’ which emerges is defined, first, by close geographical residence; second, by long, though not necessarily economic use of the existing environment; and third, by real anticipation of change which does not necessarily threaten harm, but may simply threaten disruption without social advantage.
The need to balance competing rights is a curious issue when considering the environment. It involves not competing environmental rights, but competition between an environmental right and a right to use private property. The relatively flexible Japanese code-and-precedent system may allow for the consolidation of this right as an enforceable legal right It is a beginning.
Published in 1993 in Vol 18(2) of the Alternative Law Journal as ‘Cross the road but do not breath’.