Leading Japanese legal scholar shares lessons from Minamata

September 29, 2010Duke Law News

For more than 50 years, the Japanese town of Minamata on the West coast of Kyushu island has been synonymous with environmental disaster. Officially diagnosed in the mid-1950s, “Minamata disease” was the name given to a devastating neurological illness caused by the ingestion of Minamata Bay fish and shellfish contaminated by mercury, the byproduct of intensive industrial activities of a chemical company. It was the first large-scale incident of food-chain contamination, notes Prof. Koichiro Fujikura, one of Japan’s leading scholars of environmental and comparative law.

Fujikura has written extensively about how the events in Minamata have affected the development of environmental law and policy in Japan. Recently retired from Doshisha University, where he was a professor and dean of law, Fujikura is teaching a short fall-semester course on the Minamata disaster at Duke Law School as a visiting professor of law. He talked to Duke Environmental Law about the aftermath of Minamata, as well as his deep personal interest in the tragedy.

DEL: What sparked your interest in the aftermath of the Minamata tragedy?

Fujikura: My personal interest in Minamata, where I have visited several times, came from the environment in which I grew up. During World War II, our family relocated to a small fishing village on the Pacific side of Japan. It was a beautiful bay with deep inlets dotted with many islands. During the summers, I spent most of my days in the water, catching fish, picking up shellfish. When a strange disease in Minamata was reported, I immediately noticed the identical shape of the bay to ours. I felt what is happening to Minamata could happen to our village or any similar place in Japan.

My father was an engineer who was drafted into the army during the war. After he returned home, he served three terms as mayor of our town, during which he worked hard to introduce some industry into the area so that his town could have a solid tax base. In the post-war period, it was a national policy to rebuild basic industrial plants and to disperse them in the strategically determined area. Our home town was chosen as one of the development sites. A large portion of the bay was land filled and plants were built. Some electronic companies started their operation. In the matter of few years, our bay was dead. No swimming and no fishing were possible. Until the day he died, my father regretted introducing the industrial development into the bay when he was the mayor.

When I visited Minamata and saw what had happened there, I was convinced that it could happen to us. I felt responsible for what had happened to the fishermen and people of Minamata.

DEL: Please outline what happened at Minamata. At some point, children were born with neurological problems to mothers who had no symptoms of illness.

Fujikura: During the initial period of the outbreak of Minamata disease, it was considered a minor local incident. Attention and necessary measures to control industrial activities were slow in coming from the Tokyo government. It took a decade for the government to identify the cause of the disease as organic mercury.

Minamata was the first incident of mercury poisoning by food chain contamination in a large scale. The Chisso Corporation produced fertilizer. In its production process, the company used mercury as catalyst. The company discharged the wastewater containing mercury into the bay without proper treatment. In the early 1950s, the dead fish floated in the water, birds dropped from the sky, and people living in the area fell ill. Mercury condensed in shellfish through the food chain, and reached the people.

The [umbilical] cord was thought to prevent any harmful substance from reaching the fetus, but in fact, organic mercury passed through the defense mechanism and affected unborn children.

DEL: How were law and policy affected in the aftermath?

Fujikura: The government report was issued around 1970. Organic mercury was officially named as the cause of the disease. The groups of Minamata victims filed suits. The waves of litigation that followed continue to this day.

Japan has a long history of environmental disruptions and disputes [that date to] the mid-19th century. Litigation was employed against industrial polluters from early on. The newly adapted civil codes provided for damage action. [To be successful,] plaintiffs must prove damages, causation, and the illegality of the polluters’ conduct.

Victims of pollution often resorted to direct actions — mass demonstration, sit-ins, forceful entry to a polluting factory. (I think an analogy can be drawn the civil rights movements in the U.S. in 1960s.) Pollution victims are in the minority and always discriminated against.

By litigating, Minamata victims finally could confront the polluter and government regulators with what was happening. The tragedy gained national attention from the media and the central government. The victims succeeded in mobilizing national support. The government enacted a score of major environmental protection laws and measures. The post-war policy of industrial development at all cost shifted toward protecting and preserving environment.

One of the national environmental protection laws provided a system of certification for the pollution victims. Minamata was designated as a source-specific pollution area [that is, the Chisso Corporation is the named source]. The victims living in the area with designated symptoms are eligible for official certification. If victims are certified, they are paid a scheduled amount of compensation by Chisso. The system looked fair. However, it has broken down in practice.

First, the medical standards for certification are unclear and have been disputed from the beginning. The doctors on the certification board could not agree on “typical” symptoms. Second, Chisso’s financial ability to pay, a totally irrelevant factor, [has been used] to limit numbers of certified victims. Third, the certification produced many cases where the same family members are divided into the certified and the uncertified.

Chisso has been on the verge of bankruptcy many times. Each time the central and local governments rescued the company by making low interest loans.

DEL: In your class at Duke Law, you will be presenting and analyzing the different legal and policy approaches that have been used in dealing with Minamata claims.

Fujikura: In the process of dealing with the Minamata tragedy, three different approaches have been employed: litigation, administrative compensation, and political settlements. They are interrelated.

Litigation was effective for organizing victims and getting national attention, while the administrative compensation system tried to provide the victims financial relief. Each measure produced some of the intended results. However, political settlement became necessary to put dispute to rest by gaining consent from victims. Most of victims are now elderly.

DEL: Where do Minamata claims stand now?

Fujikura: Not all claims are settled. This is because of the diverse nature of the victims groups. Some are still insisting on litigating various aspects of inequities.

As background, I should note here some basic differences in the legal systems and processes between Japan and the U.S.

In Japan, there is no class action device. There is no effective way to organize large-scale claimants effectively. Many forms of equitable relief that the U.S. courts are capable of dispensing are undeveloped in Japan. In Japan, there is no mandamus action for the court to employ.

DEL: Are there any lessons from Minamata that might be “exportable” either to the United States in the aftermath of the Gulf oil spill or to less developed countries that may be pinning their economic hopes on rapid industrialization?

Fujikura: The first lesson from Minamata is the importance of a comprehensive health survey. No official survey was conducted in Minamata. It was criminal negligence on the part of government not to have done one. To this day, we do not know the extent of environmental health harms: how widely harm extended or how many people were affected. Many victims moved away from their villages because they could no longer fish. Many of them are now moving back, but they cannot find their homes. They do not exist there, statistically or otherwise. They are uprooted and lost.

The second lesson is to prevent environmental harm rather than to compensate for harm afterward. We need to utilize all the environmental laws. This seems to be the most difficult lesson to learn. In Japan, we have a long history of environmental disasters. We did not learn from them. A comparative study of the current environmental problems like BP oil spill and asbestos victims is exciting — I am interested in exploring the possibility of a cross-legal comparison of environmental disasters. Examining and borrowing from other people’s experience should be a fruitful undertaking.
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