Customary groundwater management in Japan

Recently published in Water History, Takahiro Endo's "The Kabu-ido system and factors affecting local groundwater extraction control: case study of a customary groundwater management in Japan". The abstract:

In the early 1800s, a water conflict occurred in a community named the Fukuzuka Ring Levee on the Noubi Plain, Japan. Upper villages required artesian wells for irrigation and domestic uses, but lower villages did not welcome them because drainage from the wells caused impoundment damage to their paddy fields. The Kabu-ido system was a set of rules, including regulation of the number of wells per village, introduced to de-escalate the conflict. Under the system, groundwater uses were controlled not by external authority, but by the community residents themselves. This paper has two purposes. First, it reconstructs the daily operations of the Kabu-ido system, principally by referring to surviving local diaries, to describe hitherto unknown details regarding the management of groundwater by local people 200 years ago. The diaries show that well managers, selected from residents, regulated the use of wells using various tools, including permission and surprise inspection. Second, this paper evaluates to what extent self-imposed numerical regulation was successful by checking the number of wells listed in village expenditure notes. The documents indicate that regulation did not always work. The factors underlying this are considered using the analytical framework from the commons studies. Analysis shows that, while institutional arrangements of the Kabu-ido system, such as well management with keys, rules of joint responsibility, and the prohibition of indoor wells, work positively in enforcing numerical regulation by lowering the costs of monitoring for unauthorized wells, the natural characteristics of groundwater and climate conditions such as sudden drought work negatively.

Noubi Plain

The elimination of leaded gasoline in Japan

In Custodia Legis recently carried an interesting post by Sayuri Umeda on the history of the elimination of leaded gas in Japan. Among other things, it demonstrates that environmental regulation is often driven politically by pressure from businesses that stand to profit from the regulation, a phenomenon we have also seen, for instance, in the history of the Montreal Protocol on ozone-depleting substances. This is an important lesson for those trying to drum up political support for regulation. (It is also a shocking story of greed and regulatory failure in the US and elsewhere.)

Umeda writes (some links removed):

When I saw news headlines online on March 7, 2022, saying that a study found Americans born before 1996 might have a lower IQ from exposure to leaded gasoline, I seriously thought that my own IQ could be lower for the same reason, having grown up in Japan.

I checked when Japan banned leaded gasoline and found that actually, I was safer in Japan. Japan was the first country to ban leaded gasoline.

The U.S.–Japan dispute over the whaling moratorium

A recent issue of Diplomatic History published an article by Masaru Nishikawa, "The Origin of the U.S.–Japan Dispute over the Whaling Moratorium". The article begins (footnotes omitted):

On December 26, 2018, the administration of Japanese Prime Minister Shinzo Abe announced it would end its participation in the International Whaling Commission (IWC). While Japanese national parliamentarians who belonged to the pro-whaling caucus welcomed the decision to resume commercial whaling, the decision faced condemnation. For example, the New York Times noted that Japanese authorities ought to reconsider the decision as “[w]ithdrawing from the whaling commission for short-term political gain is a dangerous and foolish move, especially for an advanced country like Japan that has generally supported multilateral efforts on the environment.” Kumao Kaneko, a retired Japanese diplomat who had dealt with the whaling issue as a delegate to the United Nations Conference on the Human Environment (UNCHE) in 1972, regarded the decision with displeasure: “Japan has not learned anything from the shock it experienced at the UNCHE, which I still cannot forget.”

*****

The conference... marked a crucial dividing point in the history of whaling. At the UNCHE, Recommendation 86 was proposed by the secretariat. Recommendation 86 called for all involved governments to strengthen the IWC, to increase international research efforts on whales, and an international agreement under the auspices of the IWC for a 10-year moratorium on commercial whaling. The United States, much to the consternation of Japan, would play a key role in moving Recommendation 86 forward.

Before 1970, whaling moratoria were not a matter of legal or legislative concern for the U.S. government. However, the Nixon administration “initiated and strongly supported” Recommendation 86 against vigorous opposition by whaling nations in 1972. Since then, the United States pursued a whaling moratorium, which aimed to encourage the remaining whaling nations—Norway, Iceland, the Soviet Union, and Japan—to outlaw commercial whaling.

Several policy scholars have argued that nascent environmental NGOs made the campaign against whaling a powerful symbol of modern environmentalism. Those scholars have further argued that the rise of an environmentalist consciousness among the American electorate in general, and the lobbying efforts of environmental NGOs in particular, produced the Nixon administration’s sudden strong support for the 1972 anti-whaling agenda. As the scholar Kurkpatrick Dorsey wrote, “Save the Whales!” became the rallying cry for environmentalists around the world. According to environmentalist rhetoric, whales were essentially humans, only perhaps slightly better. The Nixon administration, these environmental policy scholars argue, came to co-opt this powerful message.

Japanese journalists and pundits see things quite differently. They argue that the Nixon administration changed its policy for a very different reason: they point to a “conspiracy.” For instance, in a book titled (in translation) Whaling and Conspiracy, Yoshito Umezaki insists that Nixon’s dramatic turn toward the moratorium was in fact merely an effort to misdirect attention away from the United States’ own environmental sins—in particular its massive use of defoliants in Vietnam. Umezaki claims that the moratorium was a kind of cover-up that would serve to both keep the international community from pointing a finger at the United States, and its voters from recognizing Nixon’s environmental faults, thus helping Nixon to gain re-election in 1972. Umezaki concludes that Japan was used as a “scapegoat” by the Nixon administration. Japanese government officials, such as Kazuo Shima, an IWC commissioner from Japan, and others also support the conspiracy theory argument. Shima described the U.S. environmental groups as an “ecological cult” and the UNCHE as a well-planned form of “international bullying” of Japan. Shima believed that the United States was motivated by enmity and wariness against Japan when it proposed a moratorium. More directly, Shima argues that the moratorium led by the United States was simply another aspect of its campaign to attack Japan’s growing economic power. However, this author regards the conspiracy theory as basically untenable, as it contains many insufficiently substantiated claims.

Credit: Jeremy Sutton Hibbert

Rivers, Rifles, Rice, and Religion

Law and History Review recently carried a review by Jaakko Husa of John Haley's Law's Political Foundations: Rivers, Rifles, Rice, and Religion (Edward Elgar, 2016). From the review:

In this extraordinarily sweeping volume, Haley analyzes and discusses how certain legal and political systems historically evolved in varying ways. Importantly, these systems share common threads when it comes to the political foundations of their law and the modes of their law's enforcement. Haley explains and compares three, which he calls dominant, legal orders so that past and present are bridged. The underlying idea is to bind the storytelling around narratives of rivers, rifles, rice, and religion.

*****

Chapter 2 is based on the idea that “legal institutions develop in conjunction with the capacity of rulers to appropriate wealth and acquire revenue and the demands of needs they confront for the allocation of the material resources they control” (37). This chapter also explains the storytelling narratives of the book. First, basic geographical conditions, such as climate, terrain, and, first and foremost, rivers, are pre-eminently determinative: “Law and ‘civilization’ emerged first along rivers” (40). The Tigris, the Indus and the Ganges, the Nile, the Yellow, and the Yangzi rivers are mentioned.

Control of rivers and their wealth-producing basins has been, argues Haley, tremendously important for the development of legal and political systems. A second key factor is warfare (i.e., rifles) because warfare and the accompanying need for better weaponry and human resources had continuing political and legal consequences. Third, rice production also had major consequences for the foundations of law, as it requires interdependency and cooperative behavior. Fourth, religion is key because of its storytelling narrative, as enduring political and legal orders reflect the commonly shared beliefs and values of those who are governed.

Chapter 3 then deals with the specific foundation of public law and private ordering in China by discussing rivers, rifles, and rice. The patterns of agricultural production caused shared habits of interdependence and cooperation influencing the modes of social organization in the whole region connected by rivers. Haley explains the tension between so-called Confucians and Legalists, showing that Legalist thinking had an important role in China to the effect that morality and law were seen as completely different domains. Here law remained a secondary instrument of social control enhancing the birth of a centralized form of governance without a religious base. On the whole, for Haley, China exemplifies public law ordering.

Chapter 4 then explains in a detailed manner the foundations and history of private law and private ordering in Japan by emphasizing the role of rice and warfare. In Japan's case, the lack of rivers was a key factor that prevented the birth of the centralized rule that had taken place in China. Rice production was the major source of sustenance and wealth, but producers were denied access to governmental power. This led eventually to warrior rule and development of adjudication. In the absence of imperial power, adjudication of private claims developed into a routine function of governance. Even during the Shogunate, the regulatory reach of central government remained modest. In short, Japan exemplifies private law ordering.

The book also includes chapters on law in Europe and in Hispanic America.

The legality and legitimacy of Japanese whaling - Part II

[Second and final part of a guest post by Geoffrey Wandesforde-Smith - Part I is here.]

The second point to take away from Arch’s book is that when organized whaling became established in early modern Japan, under the watchful eye of domainal lords (daimyo), who could decide who had jurisdiction over particular whaling areas, or over bodies of whales either washed up on shore or brought to a particular shore for processing, regulation was a way of dealing with the local problems of particular businesses, and of their interrelationships, and of the ways those businesses could benefit the domain through fee exactions, as a kind of tax-like income for the domain. It was not about ensuring the continued availability of whale meat as a food source. Indeed, when it took hold and expanded during the Tokugawa peace, Japanese whaling was not primarily about food. It was about profit and about ensuring the continued supply of a wide range of whale products. Sutter is eloquent on this point:

Workers using windlasses to pull sheets of blubber off a whale for processing in the sheds behind.
Courtesy of the National Diet Library of Japan.

Whale meat, which today sits at the heart of Japanese claims for the (legality and legitimacy of) … whaling’s deep cultural importance, was the least of it. Arch shows that whale meat, either fresh or salted, simply did not travel well and was thus of minor dietary importance during the early modern period. But whale oil served as a vital illuminant, other whale products helped the Japanese fertilize and work their fields, and, in one of this study’s most surprising insights, we learn how whale oil was also widely used as a pesticide that allowed the Japanese to intensify rice culture [p. xi].

And, again, Arch herself is more pointed:

The legality and legitimacy of Japanese whaling - Part I

[Sorry for the continued silence, but thanks to Geoffrey Wandesforde-Smith for pitching in with this two-part book review!]

At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.

Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].

Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].

But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.

The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].

If the validity of a sustainable take were ever to be established beyond a reasonable scientific doubt, the theory further holds that Japan would be able to resume commercial whaling in conformity with the 1946 International Convention for the Regulation of Whaling, which entered into force in 1948. Perhaps other countries that have given up whaling since the 1986 moratorium went into effect would do the same, although most observers of the IWC would consider that very unlikely. If Japan’s theory is ever to translate into practice, then much obviously depends not only on the scientific validity of Japan’s NEWREP-A research program but also on the legitimacy of the claim that eating whale meat has become so integral to Japanese identity that its legal prohibition would constitute an unwarranted act of cultural discrimination and deprivation.

So, against this background, what is the real history of whaling in Japan? Is it first and foremost a story about the continuation of a centuries old cultural tradition?  And how likely is it that the whaling Japan continues to do in the name of scientific research under IWC rules will validate a long-standing dedication to the sustainable use of whales for food?

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:

early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.

Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:

"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Japanese water pollution control

The issue of relations between central and local governments has come up a lot on this blog, including in the context of water pollution. Water History recently published Koji Noda's "Water pollution control history in Japan, effluent standards, and central–local government relations", adding a Japanese angle to the mix. The abstract:

Water pollution is a significant environmental problem. Success or failure of water pollution control policy depends primarily on effluent standards, monitoring systems, and central–local government relations. This paper focuses on the relationship between the central government and the Kanagawa Prefecture government in Japan concerning the history of water pollution control policy from the 1950s to the early 1970s. Kanagawa Prefecture is next to Tokyo, and the Kanagawa Prefecture government has been a leader regarding environmental policy at the local level in Japan. This paper examines two aspects of water pollution control history in Japan. The first is the reason behind the implementation of a unique water pollution control policy by the Kanagawa Prefecture government against the central government, although two of its governors were conservatives. In other words, this paper examines what other historical factors exist to promote or formulate water pollution control policy, other than ideology. The second aspect involves examining what central–local government relations mean, how they change, when and how national policy change affects local policy change, and vice versa.

Osaka in the 1960s (OWESA)

Maximum Sustained Yield

H-Environment recently posted a Roundtable Review of Carmel Finley's All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management (U Chicago Press, 2011). Particularly interesting are the comments by Sayuri Guthrie-Shimizu. Some excerpts:

In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.