Ocean Policy Research Blog

This blog post was originally uploaded in
Japanese to OPRI's blog on October 31, 2018.
---

On October 24, 2018, the Kagoshima District Court
made a decision on a dispute in connection with the
development of Mageshima Island in Kagoshima
Prefecture, the proposed relocation site for Field
Carrier Landing Practice (FCLP) of U.S. carrier-based
aircraft. According to a news report, fishermen filed
lawsuits alleging that sand and soil ran into the
ocean due to deforestation of Mageshima Island and
damaged their rights to operate fisheries. They
requested that the prefecture order the development
company to restore the fishing grounds, but the
Kagoshima District Court dismissed the plaintiff’s
claim (Nishinippon Shimbun [October 24, 2018]).

This short essay uses the term, “right to operate
fisheries” to mean an individual right to conduct
fishing activities to make a living. On the other hand,
the term “fishing right” is generally understood in
Japan under the Fisheries Act as the right of a
Fisheries Cooperative Association to allow members
to operate fisheries within its boundaries. However,
internationally, there are cases in which the right is
not given per sea area but per type of fish to
individual fishing boats to catch a certain amount of
fish. (This system is also used in Japan for certain
types of fish.) There is a view that the right to
operate fisheries falls under the category of human
rights under the Japanese constitution and under
international law as freedom of occupation choice.
What was alleged by the plaintiff in the above lawsuit
in connection with the development of Mageshima
Island was violation of the right to operate fisheries,
which each fisherman should have under the Forest
Act. (They alleged that the Forest Act should
guarantee the property rights of the residents who
live near the development area if there is an outflow
of sand and soil, landslides or natural disasters such
as floods due to forestry development.) The right to
operate fisheries of an individual can be protected,
directly or indirectly through various laws under the
Japanese legal system.

Regarding ocean use, when problems arise in
connection with the right to operate fisheries, they
can be due to large-scale development activities as
in the case of Mageshima Island or between
fishermen or between fishermen and their Fisheries
Cooperative Association. In Japan, there is a famous
case titled “Beach Riot Lawsuit” (Hama-no-ikki-
sosho), in which permission granted by the
administration of Iwate Prefecture became a problem
when they allowed fixed-net salmon fishing only to
the members of Fisheries Cooperative Associations
and influential individuals living in a coastal area and
did not allow small-scale fishermen to catch salmon.
The UN Human Rights Committee decided that
Iceland’s unfair allocation of individual transferable
quotas (ITQs)−a transferrable right to catch a
certain amount of fish−is a violation of the non-
discrimination principle stipulated in Article 26 of the
International Covenant on Civil and Political Rights.
The judgment of the latter in particular includes
points which should be considered in Japan, where
the introduction of ITQs have in recent years been
the subject of much discussion.

Professor Kase, of Teikyo University, a specialist in
Fishery Economics, pointed out that the “two-
dimensional adjustment” is important in relation to
the use of the ocean. There can be a situation such
that, “if there is a fishing net attached to the sea
floor, called sashiami, you cannot use a trawl net in
that area. You have permission to catch fish with a
trawl net, but if someone else has permission to use
sashiami in the same area, you are not allowed to
operate fisheries in the area.” As mentioned above,
as the entities which exercise specific fishing rights
under the Fisheries Act, Fisheries Cooperative
Associations control their members’ use of such
rights. They also conduct negotiations with the
government and companies specializing in farming
and renewable energy. The expansion of fishing
rights is currently under review, but if it does
happen, there is a possibility that maintaining order
regarding the use of coastal areas could become
more difficult. Fisheries Cooperative Associations
need to continue to work as controllers of the use of
the ocean. On the other hand, recent cases suggest
the importance of considering ways to protect the
right to operate fisheries of individual fishermen,
together with the fishing rights of Fisheries
Cooperative Associations, as these rights are not
protected by ownership, unlike agricultural farmers.
This is also a task for achieving the SDG14 (14.b)
goal, to "provide access for small-scale artisanal
fishers to marine resources and markets."


Yuhei Murakami,
Research Fellow