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close this bookIndustrial Pollution in Japan (UNU, 1992, 187 pages)
close this folderConclusions
View the document(introductory text...)
View the documentI. Basic human rights
View the documentII. Issues arising out of court struggles
View the documentIII. The role of science and technology
View the documentIV. The mass media
View the documentV. The future of Japan

II. Issues arising out of court struggles

In their attempts to solve environmental problems in the farming villages, the victims were unable to appeal on the basis of basic human rights, but were forced to accept the form of mediation determined by the polluters. However, after the Second World War the people of Japan learned that the option of taking their complaints to court had been opened up to them, and in this forum the debates regarding responsibility and cause-and-effect relationships could be exposed to public debate and scrutiny. Industries brought to court because of their anti-social activities gained a bad reputation from these encounters. In the courtroom situation the victims and the polluters were and are on an equal footing in the struggle over rights and responsibilities. Through the co-operation of lawyers, scientists, and other concerned citizens and professionals, the court struggles ended by handing down rulings that favoured the victims of pollution, together with compensation for damage inflicted. With members of active mass movements in support of the victims always waiting outside the courtroom, public opinion, through the mass media, was directed towards a position that generally supported the victims of environmental destruction; this also contributed to verdicts favouring the victims.

Around 1970, in conjunction with four major court battles that were raging over pollution rights and limits, the activities of the anti-pollution groups reached a peak. Through these activities it was possible to look back over the history of environmental destruction in Japan, and especially to examine the successes and failures of past movements, especially those revolving around the Ashio copper-mine problem. Because of the pressures brought to bear by the anti-pollution movements, industrial organizations that were causing extensive pollution began to limit more carefully their range of activities, and, with this, pollution-control methods were improved to the extent that even the Ashio, Hitachi, and Besshi copper mines abandoned certain of their more dangerous production processes. It also became clear that the act of demanding compensation alone is of limited value for the victims of pollution. The only real hope of restoring environmental sanity lay in court confrontations that ruled against further corporate activities where damaged environments were at issue. Because of these court battles, the government and supporting industries were forced to alter plans for further rapid economic growth, and were thereby compelled to undertake actions to limit corporate activities. Because of this the government was very much against these victim-generated court actions. The courts involved were in certain respects very conservative in outlook; they had no knowledge of pollution problems, were reluctant to accept on a formal basis the informational and ideational inputs of the citizens' movements, and often limited courtroom interpolations to matters that concerned only the issue at hand, thereby preventing an exploration of the many far-reaching issues involved. In many situations, cases were thrown out of court before they could be fully examined because of these and other problems of a technical and legal nature.

In certain recent cases, lawyers accustomed to pollution trials have tried to bring matters to a speedy conclusion without the benefit of legal and technical research or citizen co-operation, in the hope of saving themselves a good deal of effort. Generally speaking the results of such short-cut trials are to the disadvantage of pollution victims. Good results from legal efforts cannot be expected without mass action and co-operation. The same phenomenon can be seen with regard to the professionalism that holds sway within legislative organizations, in which citizen co-operation is simply not considered. Professionalism which excludes the people makes pollution problems even more difficult to deal with.

Public hearings have provided an opportunity to apportion responsibility for environmental damage and have been useful in winning compensation that is related to damage liability. However, in the court cases centring around pollution problems, the professionalism practiced by legal personnel becomes a barrier rather than an aid to success. It is essential that pollution victims understand the limitations of narrow-minded professionalism based on authoritarianism so that genuine co-operation with legal professionals can be nurtured. Court-based procedures are a step in the right direction when compared with authority-oriented face-to-face negotiations within the context of other social situations, but legal procedures have their own authoritarian orientations and structures which contain inherent drawbacks. It is therefore essential that citizens' movements come to the fore and demand limitations on professional authoritarianism. Japan's pollution laws, which are, on a formal level, among the most advanced in the world, have no real effect in helping to solve the problems faced by the pollution victims. In order to bring the four celebrated pollution cases of Japan to a legal conclusion, it was not the new pollution laws that were applied in the court proceedings, but rather the older civil codes and mining laws. In spite of the use of the older legal structures, certain progressive results were seen in the designation of communal action illegality, non-fault liability, and illegal actions without reference to a legal standard. The older pollution laws that were well established did have some effect in the prevention of environmental destruction. However, these court cases continue to broadcast a warning as to the seriousness of environmental destruction.