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National case-studies: India and Japan
National institutions of governance in marine
affairs of India (Krishan Saigal)
Annex
References
Some observations on mechanisms for
decision-making and the execution of an integrated ocean policy
in Japan (Tsutomu Fuse)
Notes
Krishan Saigal and Tsutomu Fuse
National institutions of governance in marine affairs of India (Krishan Saigal)
India is a parliamentary federal democracy of the Westminster model. Though the Head of State is the President and all work is done in his name the actual executive power at the Centre is vested in the Council of Ministers with the Prime Minister at its head. The division of powers between the Centre and the States is legislated by a written Constitution. The division of work between the different Ministries and Departments is done by the President on the advice of the Prime Minister through the Allocation of Business Rules. In the States there is the Governor and a Council of Ministers with the Chief Minister at its head.
Activities in the ocean have a long history in India. As early as the third century B.C. we have Kautilya, a famous political scientist of the time, writing about the duties of those in charge of ports. Throughout the ages India was also the focal point of seaborne trade whether from Arabia, East Africa, Malaysia, or China. This shipping tradition has continued down to the present day and India is among the top fifteen shipping nations in the world. In fishing also, India has the largest catch of fish among the littoral states of the Indian Ocean while giant strides were made in the exploitation of oil and gas offshore in the 1970s. At the conclusion of the International Indian Ocean Expedition the National Institute of Oceanography (NIO) was established in 1966 to carry out multi-disciplinary research in the areas of physical, chemical, biological, and geological oceanography.
From 1973 onwards when the negotiations in UNCLOS III started, an interministerial committee was established to prepare the brief for the Indian delegation to UNCLOS III. This brief was given final approval by the Cabinet before the departure of the delegation.
In 1979 the need was felt for examining the possibility of establishing a new institutional structure for looking after all matters relating to the sea. There were two reasons for this. In 1976 the Maritime Zones Act had been promulgated whereby a territorial sea of 12 nautical miles, a contiguous zone of 24 nautical miles and exclusive economic zone (EEZ) of 200 nautical miles, from the baseline had been established. It was estimated that by this action nearly 2 million km² (or two-thirds of the land area) was available for exploitation of resources. Also the negotiations in UNCLOS III were drawing to a close and Norway had established a Ministry of the Sea, the United States had the National Oceans and Atmospheric Agency (NOAA) and other nations were also beginning to take a hard look at their institutional organizations relating to the sea.
Examination of the internal organization of India was done in the period 1979-1980. The examination revealed that there were a large number of ministries and departments dealing with ocean affairs.
The more significant ones directly involved with ocean affairs were:
- Ministry of Shipping and Ports (shipping, ports)
- Ministry of Agriculture and Fisheries (fisheries)
- Ministry of Petroleum (offshore oil and gas)
- Ministry of Defence (navy, coastguard)
- Ministry of Mines (minerals exploitation) Ministry of Energy (energy)
- Ministry of External Affairs (external relations, UNCLOS III negotiations).
The following were involved indirectly or in a coordinating role:
- Ministry of Education (universities, technical institutions)
- Ministry of Science and Technology (oceanography)
- Ministry of Space (remote sensing)
- Ministry of Finance (fiscal matters)
- Ministry of Planning (economic planning)
- Ministry of Home Affairs (islands development)
- Department of Cabinet Affairs (overall coordination)
The above departments were only those at the central level. In addition there were 9 maritime States while the other 16 States also had a direct interest in fishing ports and foreign trade. In the context of India's federal structure the States had a very important role to play in the country's ocean agenda, especially the maritime States, in matters concerning the land-sea interface in the form of coastal zone management.
A study of the ground situation in the country ruled out the idea of a "superagency" for the oceans, i.e., an organization that would centralize responsibility for marine affairs. In view of the multiplicity of activities taking place in the oceans it was doubtful if a single administrative unit having such a broad mandate, and concomitant requirements of wide-ranging expertise, could be in a position to harmonize activities, psychological attitudes, and different cultures ranging from the scientific, administrative, and technological, to the diplomatic and legal. Besides it would break the link between land-based activities and ocean activities in some areas (for example communications, food, energy) which could not be neatly labelled as "oceanic" or "land-based. " And of course, there were the well-entrenched bureaucracies which represented dense aggregations of sectorally organized resistance to change.
The problem to be tackled was of bringing about some degree of cohesiveness and coordination in both the vertical and horizontal dimensions vertically among the Centre, the States, and local authorities and horizontally between sectors, activities, and programmes. Rising expectations of the people and the speed of technological advance have created a mismatch between the ability of the government to formulate and implement policy and the demands placed on it by rapidly developing marine technology which was multiplying opportunities of human use of the neritic zones of the world's oceans. The creation of the exclusive economic zone (EEZ), a multi-purpose zone, had significantly enhanced and extended national jurisdiction over all resources and economic activities within it. It required a coordinated, flexible, and sophisticated policy initiative to handle the emerging opportunities.
Large-scale reorganization or the establishment of a superagency being ruled out, the following criteria were considered essential parameters for the design of an appropriate organization:
a. there needed to be effective policy coordination through a more coherent definition of national priorities;
b. efficiency needed to be increased by reducing duplication, conflict, and waste;
c. there was the requirement for increased effectiveness in task performance.
In the context of the above, and keeping in view the crucial position of science and technology in future developments, it was decided in 1981 to create a Department of Ocean Development (DOD) with the following functions and responsibilities:
(i) matters relating to the ocean and not specifically allocated to any ministry or department;
(ii) policies for coordination, regulatory measures and development and relating to the ocean and covering:
- research (including fundamental research) and the development of related uses;
- technology development;
- surveys to map and locate the availability of living and nonliving resources;
- preservation, conservation, and protection of oceans;
- development of appropriate skills and manpower;
- collaboration, including technical collaboration, and related law;
(iii) Ocean Commission;
(iv) the Pan-Indian Science Association;
(v) Ocean Science and Technology Agency or Board; and
(vi) Antarctica.
The main thrust of the new department was elaborated in a document entitled "Ocean Policy Statement" (see annex) presented to Parliament in 1982 by the Prime Minister who was in charge of the new department. It was considered necessary to place the department under the Prime Minister so as to facilitate policy coordination. The main parameters of the new policy were:
- A coordinated, centralized and very sophisticated development response in the context of the vastness, complexity, and uncertainty of the ocean environment.
- The development of an adequate knowledge of Indian sea-space, including mapping of resources.
- The acquisition and development of the appropriate marine technologies for exploiting the marine resources; this implied both the necessity of developing indigenous technologies and the ability to negotiate the acquisition of technology.
- Development of an adequate infrastructure.
- Building of effective systems of management and control.
- Adequate surveillance over the area under national jurisdiction; and
- Conserving and preserving the marine environment.
For underpinning the above policy, DOD was asked to set up a centralized data system with a proper mechanism for the collection, collation, and dissemination of information. Training of manpower was to be accorded high priority while existing agencies had to be adequately strengthened to meet the challenge of ocean development. The Department of Ocean Development was required to function in conjunction with other concerned agencies as a focal point to promote institutional capabilities in areas where significant work is lacking. The complex programme that ocean development entails will require well-designed management and institutional extension of the DOD with sufficient powers vis-à-vis other agencies to help proper and speedy ocean development enabling India to be in the forefront of the international effort. This would also mean close cooperation with both developing and developed countries in a spirit of understanding of the concept that the oceans are a common heritage of mankind.
Over ten years have elapsed since the DOD was established. It is time to review what has been its impact on ocean development. This is not a task to be lightly undertaken in a country as large, diverse, and complex as India. The impacts of the policy and activities of DOD on more than a dozen agencies at the central level, nine maritime States, two island groups and sixteen other States would require much more time or space than is possible in this chapter. We will confine ourselves, therefore, to a listing of some of the more significant of the outputs of DOD and then critically examine the extent to which it has met the policy parameters delineated in 1982.
The more significant of the outputs of DOD (not necessarily either in order of importance or in time sequence) during the last decade have been:
- The presentation of an ocean policy statement in 1982.
- The sending of an expedition to Antarctica within four months of its establishment; establishment of a permanent station in 1982; signing of Antarctic Treaty and acceptance as a Consultative Party member in 1983; establishment of a second station in 1988.
- Acceleration of the programme of deep-sea exploration for polymetallic nodules in 1981; acceptance as a pioneer investor by the international community in 1982; registration as a pioneer investor by the Preparatory Commission in 1987 (the first country to be so registered).
- Starting of R&D in wave and thermal energy conversion in 1982; establishment of a 150 kW prototype of wave energy in 1990 (the second country in the world after Norway to do so).
- Funding of R&D on a third-generation deep-sea mining system collector (robotics and "smart") in 1990 with the target date of 1997 for trials.
- Coordination of surveying and mapping of the living resources of the EEZ so as to prevent waste and duplication.
- Establishment of an apex group for monitoring and controlling pollution and consisting of all central and state agencies.
- The establishment of an Ocean Science Technology Board to link high technology such as biotechnology, space applications, electronics, new materials, new sources of energy, with development of ocean technology.
- Integrated development of the two island groups of Andamans and Nicobar, and Lakshadweep.
- The establishment of an information networking system linking data and information wherever collected in the nation with a comprehensive prediction and modelling capacity so as to be of use to marine-users, especially:
(i) artisan fishermen operating up to 25 km;
(ii) those involved in construction of ports, lighthouses, and offshore platforms;
(iii) the meteorological forecasters; and
(iv) ocean engineers engaged in designing structures.
Summary
The Department of Ocean Development was set up to coordinate policies and fill up the empty interstices in the ocean governance matrix. Its main thrust was to be in the sphere of marine technology especially that part of it that was state-of-the-art. It was not expected to be a superagency or look after all matters relating to the oceans.
Within the parameters of its mandate the Department has been fairly successful. It has entered an empty space, for example, Antarctica. It has formulated a national ocean policy; accelerated the deep-sea mining programme; funded state-of-the-art technology in the shape of wave energy, ocean thermal energy conversion, an autonomous "collector" for harvesting nodules; set up an integrated national ocean information service linking up both the users and the initiators of information; coordinated the surveying and mapping of resources; established national coordinating bodies, etc.
It is difficult to evaluate the indirect impact of DOD on the policies of other departments in the absence of any relevant data. Marine fish catches have increased, surveillance activities stepped up, mapping activities accelerated, etc. But how much of that can be considered attributable to DOD is not clear. It may be some time before the impact of DOD on ocean governance can be fully assessed. In any case, DOD has to be regarded, at this stage, as an experimental venture in ocean management and it will, no doubt, evolve and adapt with time.
Ocean Policy Statement
1. The oceans are known to be our last frontiers. Our long coast and the sense of adventure of our forefathers fostered a great maritime tradition. The Indian Ocean which washes our shores provides opportunities which need to be utilized. For success in ocean development, the entire nation should be permeated with the spirit of enterprise and the desire to explore the frontiers of knowledge. Our experience in other fields of scientific endeavour will help our efforts in ocean development. What is necessary is a policy and structure to facilitate a dynamic thrust keeping in view developments in other parts of the world.
2. The adoption by an overwhelming majority of nations of the Convention of the United Nation Conference on the Law of the Sea has established a new international order for the oceans. This extends the economic jurisdiction of coastal States to an area ranging from 200 to 350 nautical miles from the coastline. According to this regime, nearly two million square kilometres of area, or very nearly two-thirds of the land has come under India's national jurisdiction. In this area, the exclusive right to utilize living and non-living resources rests with the nation. Besides, India has been recognized as a "Pioneer Investor" in ocean mining. This gives India the exclusive right to operate in an area up to 150 thousand square kilometres in the high seas for the recovery and processing of polymetallic nodules.
3. For ages, the sea has enabled our people to sail to near and distant lands and has been a source of livelihood to large numbers of people. Even now Indian public and private enterprises do use ocean resources. The country is producing significant quantities of fish and hydrocarbons from the sea and much scientific work has been done in collecting basic knowledge and information about the sea and seabed and in surveying, charting and exploiting it. Progress has been made in construction and development of offshore structures.
4. The vastness, complexity and uncertainty of the ocean environment calls for a coordinated, centralized, and highly sophisticated development response. This should be based on adequate knowledge of marine space (seabed, water and air columns included) as a fundamental prerequisite to the control, management, and utilization of the rich and varied natural resources available from the sea. In addition to basic knowledge to determine the potentialities inherent in the Indian sea space, we have to develop appropriate technologies to harness these resources. A supporting infrastructure has to be built. Effective systems of management and control of the entire set-up are also necessary.
5. We need to map living resources, prepare an inventory of commercially exploitable fauna, and map and assess the availability of minerals from the deep sea. The supporting infrastructure and incentives required are research vessels of different types, manpower, well-laid out programmes of resource exploitation, advanced technology, and everything necessary to promote the growth of ocean technology. In the management sector, the high seas and the Exclusive Economic Zone (EEZ) up to 320 kilometres have to be looked into for the exploitation of the wealth therein.
6. The main thrust should be on the optima utilization of living resources like fish and sea weeds, exploitation of non-living resources such as hydrocarbons and heavy placer deposits, harnessing of renewable resource of ocean energy from waves, temperature differences in the water column, tidal heights and salinity gradients, and the collection and processing of polymetallic nodules from the deep sea.
7. Marine development is linked with scientific and technological achievements in other areas. Hence, while we develop basic marine science and technology, i.e., technology for marine environment, our technological advances have to be geared to the utilization and preservation of the marine environment. The extension of national frontiers by an area of 2 million square kilometres of ocean space and the consequent access to new sources of energy, minerals and food, requires great strides in ocean engineering, especially in tasks related to structures, materials, instrumentation, submersibles, and systems of propulsion of ships. The exploitation of natural food resources such as fish and seaweeds, and the generation of additional food resources by cultivation, also need scientific methods of aquaculture and marine culture. To survey and predict the ocean environment, the main tasks necessary are sea-floor mapping, charting geodesy, ocean dynamics, currents, waves, cyclones, marine fauna, chemistry and physics of the oceans, and seabed mineral mapping, delineation, and assessment. Research in all these areas must examine the various processes and their origins so as to have a fundamental understanding, ensuring predictive capabilities. Marine science and technology have also to look beyond the current state-of-the-art to achieve major technological breakthroughs in the future.
8. In addition to research and development in the basic sciences, we should survey the deeper part of the ocean. Similarly in the deep sea, detailed survey and sampling in the regions of EEZ and the adjacent ocean will be necessary to locate and evaluate the rich and economically viable deposits of polymetallic nodules, heavy metals, fossil places and phosphorite deposits. The gathering of data from surveys should be coordinated and a cost-effective system of integrated surveys established.
9. Much more needs to be done for the development of indigenous technology for the exploitation of fish from deeper waters. This also means setting up of infrastructure facilities and services to operate large-sized fishing vessels.
10. An important component of the development programme should be the acquisition of technology. To be self-reliant, such technologies would have to be largely developed, tested, and operated indigenously. Technologies relating to instrumentation, diving systems, position fixing and maintenance, materials development, oceanic data collecting devices, anti-erosion capabilities, submersibles, energy and energy-saving devices are priority items. Several new technologies will have to be commercialized and made cost-effective.
11. Infrastructural support forms an essential prerequisite for ocean development. The variegated infrastructure already available in the country will have to be appropriately augmented, and more particularly in basic supporting facilities like safety and rescue at sea, navigational chains, communication networks, development of appropriate maps and charts, etc. Infrastructural support for providing a complete and reliable information system through a network of data centres on marine resources, processing and marketing systems, advanced technologies and financial assistance would also be necessary. This requires a broadening and strengthening of available infrastructural facilities. Provisions of adequate ports and harbours, shipbuilding and ship repair facilities will be needed in addition to adequate skilled manpower in various sectors of development.
12. Surveillance and conservation of the marine environment and its resources call for an integrated legal framework and its concomitant enforcement. Several laws have already been promulgated regarding maritime zone, fisheries, etc. The Coastguard Organization looks after the enforcement aspects of several of these legislative measures. The coordinating mechanisms of the overall structure of legislation will have to be suitably strengthened under the aegis of the Department of Ocean Development.
13. In light of this, we must have a database to coordinate efforts made by different agencies. This is all the more necessary because of the rapid growth of information in ocean science and technology. A centralized data system will be set up by the Department of Ocean Development with a proper mechanism for collection, collation and dissemination of information acquired both indigenously and from foreign sources.
14. The creation of a self-reliant technological base puts a heavy demand on fully trained personnel. The training of skilled manpower is to be adequately planned. Young scientists, technologists, and engineers will be encouraged to participate in the programme of ocean development and steps will be taken to induce Indian scientists from within the country and abroad to participate in it.
15. Existing agencies will have to be appropriately strengthened to meet the demands of this growing challenge. The Department of Ocean Development will function in conjunction with other concerned agencies as a focal point to promote institutional capability in areas where significant work is lacking. The complex programme that ocean development entails will require well-designed management and institutional extension of the Department of Ocean Development with sufficient powers vis-à-vis other agencies to help proper and speedy ocean development, which would enable India to be in the forefront of the international effort. This would also mean close cooperation with both developing and developed countries in a spirit of understanding of the concept that the oceans are a common heritage of mankind.
Government of India, Cabinet Secretariat, Allocation of Business Rules. New Delhi: Rashtrapati Bhawan, 1950.
Ocean Policy Statement (see annex attached)
1. Introductory note
Japan is a relatively small island country located off the east coast of Asia. Therefore, the existence of the ocean itself and ocean-oriented human activities are integral parts of Japanese life. Consequently, as the Japanese in general may be called a "fish-eating people," fishing takes a very important place in Japanese industry.
Under such circumstances, the decisive factors influencing Japanese ocean policies are as follows.
A. Insularity
Due to her geographical situation, it was inevitable that Japan should develop a close dependence on the surrounding oceans. She may, therefore, be termed a typical insular state. The total tonnage of Japanese commercial shipping, for example, was 25,561,000 gross tons (as of 1989),1 of which fishing vessels accounted for 2,486,000 tons2 - almost ten per cent.
B. The Japanese - A fish-eating people
The seas surrounding the Japanese archipelago form one of the richest fishing grounds in the world. As a result, fish have always been a major food source for the Japanese people, and the catch is commensurately large. In 1990, the total fish haul was 11,910,000 tons.3 In addition, 2,290,000 tons more were imported from several countries.4
C. Long history of regional and national ocean policy-making
Until the middle of the Tokugawa shogunate, rules governing the exploitation of the oceans were customarily formulated independently in different parts of the country. The first uniform nation-wide regulations affecting the fishing industry are to be found in "The Regulations of Tokugawa in a Nutshell" (Ritsuryo Yoryaku), published by the Tokugawa government in 1741.5
The fundamental framework on which modern fishery policies are structured, with respect both to the fishing industry itself and the conservation of fish resources, can be traced to this document. They were confirmed in most particulars in the Fishery Act of 1901, following the Meiji Restoration of 1868 when Japan opened her doors to the world. It can be said, therefore, that modern Japanese ocean policies derive ultimately from customary rules formed in the course of long historical practice.
D. Peculiarities of the decision-making system in Japan
It would be fair to say that decisions are usually arrived at in Japan by consensus. Accordingly, the decision-making process in this country, even at the national level, is precisely a matter of achieving consensus among interested parties. The three leading actors at national level whose views, therefore, have to be reconciled are politicians, bureaucrats, and specific interest groups, especially businessmen.6
These three leading actors are, in principle, independent of each other, but they are in fact closely interrelated. One will find, therefore, in their best mutual interests the grounds for decisions which affect them. We must examine the process by which agreement is reached among them and eventually translated into formal public policy.
2. The decision-making process in Japan and its role in the formulation of ocean policies
A. The decision-making process
"Democracy" has become an indispensable and indisputable criterion in the philosophy of decision-making in Japan since the end of the Second World War. Accordingly, as in most western countries, the post-war Japanese Constitution expressly guarantees the democratic process in the making of public policy. In other words, the formal process of decision-making in Japan conforms very closely to that which is found in the western nations. However, it must be observed that certain peculiarities exist in the informal process of reaching consensus among the three above-mentioned leading actors, and that the origin of these peculiarities is to be found in the historically formed culture of Japan.
i) THE FORMAL PROCESS. The formal process of making public policy in Japan takes two forms: normal legislation and budget legislation. Normal legislation may be introduced by the Cabinet or by members of parliament. However, as the executive is an integral part of the parliamentary system of government, over 68 per cent of legislation is drafted, in practice, by the Cabinet.7
a. A Japanese ministry is made up of bureaus and sections. Once it has been decided that a certain problem cannot be reasonably solved under the existing legal system and that a solution is certain to be requested from various quarters, the relevant section of the ministry involved makes an initial proposal.
b. After careful examination and amendments to the original proposal have been put forward by other interested sections, the director of the bureau in charge is asked to organize an "ad hoc examining committee of experts" within the ministry. To further adjust and fine-tune the conclusions of this committee, inter-ministerial coordination may be called upon to achieve a unified proposal. In some cases, a kind of interministerial contract (aigi sho) is drawn up for the later settlement of possible disputes among ministries.
c. The minister in charge then asks the "Minister's Consultative Council," which is an officially constituted permanent body, to examine and confirm the amended proposal.
d. The minister in charge next presents the approved proposal at a meeting of the Cabinet with a request that it be adopted for draft legislation.
e. The Cabinet submits the draft to Parliament for legislation.
ii) THE INFORMAL PROCESS. The informal process referred to here describes the process of adjustment required in order to reach consensus among the three above-mentioned leading actors: the political, bureaucratic, and business sectors. In the course of the informal process, the drafting section maintains contact with other concerned interest groups, so as to promote consensus through an exchange of views and mutual efforts to bridge any differences which may arise. Much time is spent on this informal process, but it must be emphasized that this part of the procedure is central to the achievement of consensus among the various sectors concerned.
First of all, the informal process within the political sector should be studied carefully. As already mentioned, the Japanese political system based on the principles of parliamentary government, and the drafting of legislation falls mainly on the ruling party. In Japan, the Liberal Democratic Party (LDP) held this position for over forty years. This situation being almost tantamount to one-party government, the methods adopted for reaching consensus and making decisions within the party may be considered the key to successful mechanisms for drafting legislation.8 Moreover, not only is it a fact that the LDP has been and still remains a union of several factions, but the seriousness of intra-party politics is increasing.
From this point of view, one of the organs of the LDP to which special attention should be paid is the Policy Research Council.9 The Council has seven departments, more than thirty branches and many other ad hoc committees which undertake research and examine proposals before they are accepted by the Cabinet as formal public policies. According to LDP party rules, such prior examination is mandatory before the Party decides on a final draft.10 Every LDP member of the Diet has to belong to some department or branch of the Council. In addition, to assist in the search for consensus, LDP politicians make a point of being in touch through their own informal channels with different interest groups, including the business sector. Representing party expertise in a given policy area, a politician, or group of politicians, belonging to the same department or branch is called Zoku Giin (parliamentary member of the tribe).
B. Can an integrated ocean policy exist in Japan?
Some scholars hesitate to affirm the existence of a so-called "integrated ocean policy" in Japan. From a legal point of view, there is no independent ministry with the authority to formulate such a policy. Neither is there any unified code of laws in force regulating a national ocean policy. However, if we look at it in another way, it becomes apparent that there exists a system established by custom which does in fact perform this integrating function.
As "ocean policy," broadly speaking, covers matters involving to some degree almost all ministries and agencies of the government, some kind of coordinating system is inevitable. For that reason, the Ocean Science and Technology Council was set up in 1961 to advise the prime minister.11 On the recommendation of the Council, the "Marine Science and Technology Centre in Japan" and the "Marine Science and Aquaculture Development Centre Japan" were established in 1971. Later, the Council was reformed as the Ocean Development Council, and expanded its brief to include all aspects of ocean development including the conservation of marine resources.
After careful deliberation the newly constituted Council issued several reports, two of which command our particular attention. These are "Fundamental Concepts and Measures for the Promotion of Ocean Development in Japan" (1973), and "Long-term Perspectives on Fundamental Concepts and Measures for Ocean Development" (1990).
In these reports, the following four principles are expressed as prime guidelines of ocean development:12
i. Ocean development must contribute to the social development of Japan.
ii. Ocean development must contribute to the long-term economic development of Japan.
iii. Ocean development is to be pursued in the national interest in conformity with international interests.
iv. Ocean development must contribute to the interests of the inter national community.
It can be said that these reports established the basic guidelines for future ocean policies.
In order to put these guidelines into operation, a committee of Inter-Ministerial Bodies and Agencies Concerned with Promoting Ocean Development was set up in 1969 under the auspices of the Prime Minister's Office.13 The aim of the Committee, as its name suggests, is to coordinate ocean policies among concerned ministries and agencies under the guidelines put out by the Council.
In 1970, the group published a "Plan for the Promotion of Ocean Development." Since then, the Plan has been re-examined and amended every year.
3. National policy governing the fishing industry in Japan Its historical background and present directions
A. "The Regulations of Tokugawa in a Nutshell"
The first unified code of rules regulating commercial fishing in Japan was published in 1741 under the title Ritsuryo Yoryaku ("The Regulations of Tokugawa in a Nutshell"). This document codified the customary rules which had prevailed in fishing villages all around Japan, and consisted of three fundamental principles, upon which the feudal fisheries systems under the Tokugawa was developed, and important elements of which are still vital to our present system.
i) THE DISTINCTION BETWEEN URAKATA (FISHING VILLAGE) AND JIKATA (FARMING VILLAGE). AS a result of this distinction, only Urakata was allowed the exclusive right to engage in fishing. Distinguishing the farmer from the fisherman, the Tokugawa feudal government could oblige the farmer to devote himself exclusively to agriculture,14 which was considered the most important industry at that time. The same distinction led to the organization of Nokyo (agricultural cooperatives) in farming villages, and Gyokyo (fishermen' s cooperatives) in fishing villages.
ii) THE DISTINCTION BETWEEN NETSUKE (INSHORE AREAS) AND OFF-SHORE FISHING GROUNDS. The inshore area called Netsuke was open to any member of an Urakata to fish without special permission, while only a limited number of fishermen could afford the privilege of fishing offshore.15 These areas were delimited by custom in each place. From this practice, a unique Japanese legal concept of fishing rights called Gyo Ken developed.
iii) THE PRINCIPLE OF ACHIEVEMENT. Rights and privileges granted referred expressly to the actual practice of fishing, and therefore, could not, by definition, include mere theoretical rights on paper.16 Consequently, a life and death struggle for survival centred on actual fishing catches spread throughout almost all fishing villages. Accordingly, the peaceful settlement of disputes among fishermen became a significant mechanism of the principle of achievement, and remains so even under contemporary fishing policies.
This principle is still applied mutatis mutandis even under the terms of the existing Fisheries Act of 1947, according to which the right to fish commercially is awarded subject to specific fishing achievements.
B. The Fisheries Act of 1901
The first national legislation regulating Japanese fishing to be enacted following the establishment of the modern system of government was the Fisheries Act of 1901. The essence of this act is said to have been the reconfirmation of the three principles enunciated in the Tokugawa Ritsuryo Yoryaku.17 It is particularly noteworthy that the establishment of fishermen's cooperatives was made compulsory by law, and that the Act placed upon them responsibility for issuing commercial fishing permits.18 It followed that without membership in a cooperative no one could engage in commercial fishing. Yet in practice it was still a fact that only small numbers of the richest fishermen could acquire membership.
C. The Fisheries Act of 1949
This Act should be recognized as being of no less importance than the Agrarian Reform Act of 1946, which was drafted under the auspices of the Occupation Authority after the end of the Second World War. Since it was the object of the Occupation Authority to "democratize" the Japanese social system, the new Fisheries Act of 1949 set out to democratize the fishing industry and increase the catch through overall utilization of the fishing grounds. 19
According to this logic, fishing rights and the management of commercial fishing are monopolized under the present system by Gyokyo (fishermen's cooperatives), with the act providing for their democratic management.20 For this reason, every substantive matter concerning commercial fishing including settlement of disputes comes in principle under the exclusive jurisdiction of the cooperative concerned.
D. Conclusion - Problems and perspectives
The characteristics of the Japanese decision-making process may be summarized as follows:
i. The process is characterized by coordination among historically formed interest groups. This has evolved into coordination among ministries and agencies of government representing such groups.
ii. Within the framework of this coordination process, problems can be solved as they arise.
The Japanese decision-making process has worked comparatively well. However, its function has been mostly to facilitate the coordination of different interest groups. It is not, therefore, always adequate to tackle the very difficult problems of conservation or, in some cases, the creation of a sound marine environment in a global perspective.21
In conclusion, it is necessary to take positive steps to put into practice the new concepts of "eco-development" and "sustainable development."22 For this, the existing policy-making process in Japan is not appropriate, at the very least, an independent agency should be established to integrate and create a new ocean policy on a global scale.