Asian Law in Disasters

Toward a Human-Centered Recovery

Yuka KANEKO, Katsumi MATSUOKA, Toshihisa TOYODA, Yuka KANEKO, Katsumi MATSUOKA, Toshihisa TOYODA

• Publisher: Routledge
• Year: 2016
• Topic: Social Sciences
• eBook ISBN:
  9781317396833
• Subtopic: Social Policy
• Index: Social Sciences

This book is a critical analysis of several of the most disaster-prone regions in Asia. Its unique focus is on the legal issues in the phase of disaster recovery, the most lengthy and difficult stage of disaster response that follows the conclusion of initial emergency stage of humanitarian aid. In the stage of disaster recovery, the law decides the fate of reconstruction for the individual houses and livelihoods of the disaster-affected people and sets the limit of governmental support for them during the lengthy period of suspension of normal living until full recovery is obtained. Researchers who were participant-observers in the difficult recovery phase after the mega-disasters in Asia analyse the reality of the functions of law which often hinder, rather than foster, efforts to restore disaster victims' lives. The book collects research conducted with an emphasis on empirical approaches to legal sociology, including direct interviews with people affected by the disaster. It offers a holistic approach beyond the traditional sectionalism of legal studies by starting with a historical review and incorporating both spheres of public law and private law, in order to obtain a new perspective that can concurrently achieve disaster risk reductions and human-centered recoveries.

With particular emphasis on the unexplored area of law in the post-disaster recovery phase, this book will attract the attention of students and scholars of disaster studies, legal studies, Asian studies, as well as those who work in the practice of disaster management.

Part I
Typology of Asian disaster law

Beyond the developmental state model

1 Lessons from the 2011 East Japan Earthquake

Issues of participation and early recovery

Yuka Kaneko

1 Introduction

Disaster law in Japan faces a turning point. As one of the most disaster-prone countries in the world, Japan has accumulated law-making efforts for disaster management since the era of its ancient monarchy. In contrast to the basic discretionary nature of pre-modern laws centering on ad hoc disaster relief, modern disaster law has sought a systematic structure of disaster risk management based on the government’s responsibility to maintain the disaster-preventive infrastructure as well as implement emergency responses. In particular, the Great Kanto Earthquake of 1923, in which there were more than 100,000 casualties due to fires that spread after the earthquake, initiated the Japanese modern tradition of the government’s frequent use of large-scale urban planning methods for post-disaster reconstruction toward better urban safety. The same utilization of urban planning was pursued by municipal governments in the recovery phase of the 1995 Great Hanshin-Awaji Earthquake, which caused 6,000 casualties, again partly due to earthquake-induced fires despite the development of earthquake-resistant technologies during this period. A difference between these two great urban earthquakes was, however, in the distance between the affected people and the local governments in charge of disaster management: in contrast to the pre- war centralized bureaucracy, contemporary spatial planning is under the responsibility of the municipal governments, which sit closer to the citizens. Numerous voices raised by citizens since the Hanshin-Awaji Earthquake have brought actual changes to the disaster law regime under the 1961 Disaster Countermeasures Basic Act. Debates between legal scholars have also been vigorously made.¹ The ultimate question is, essentially, to what extent the state should be responsible for the individual lives and livelihood of disaster-affected people. Whereas influential scholars have strongly emphasized the state role in the “human recovery (ningen-no-fukkou)” approach centered on the disaster victims, the slogan “creative recovery (souzou-teki-fukkou)” has been the campaign message from the neo-liberal school, promoting the injection of state budget funds into disaster-preventive investments in preparation for future disasters.

In fact, post-disaster recovery in Japan has been guided largely by the sphere of public law on spatial planning and construction of public infrastructure, causing tension with the private rights of disaster victims at the intersection of two spheres of public law and private law. A critical argument has long been made that modern Japanese law on post-disaster recovery has been nothing more than an instrument of wholesale deprivation of private property for the purpose of constructing modern cities and infrastructure, without fair compensation for the victims (Ikeda 1993, etc.). The “creative recovery” slogan after the 1995 Hanshin-Awaji Earthquake was further expanded into the slogan “revival of Japan” after the 2011 East Japan Earthquake, and reiterated in the Law on Recovery from Large-Scale Disaster enacted in 2013, carrying the potential for enriching private investors that receive special disaster-related subsidies while leaving the very recovery of disaster-affected people behind. Furthermore, the recent vigorous ODA (official development assistance) activities meant to export this Japanese legal framework of spatial planning and construction of public infrastructure in post-disaster recovery to other parts of Asia, together with the restated slogan of “Build Back Better,” represent the possibility of similar tragic effects on the disaster victims in these countries.

Before the Japanese model of disaster law is established as an Asian standard, it is necessary to carefully reevaluate its outcomes. With this purpose in mind, first, the historical outlook of Japanese disaster law will be reviewed (section 2) before focusing upon the issues of disaster recovery and the decision-making procedure (section 3). Then, the legal framework for victim support and compensation for loss in the course of recovery will be examined (section 4), and finally, the findings will be summarized (section 5).

2 Disaster law of Japan

2.1 A historical overview: victim aid vs. disaster-preventive investment

Since disaster management and support for disaster victims have always been the fundamental tasks of political rulers throughout the history of disaster-prone Japan, it was natural that the modern law-making activities of the Meiji government after the 1868 Meiji Restoration began with a series of ordinances providing for paternalistic aid for disaster victims. It was ironic, however, that such a humanitarian legal policy inherited from the pre-modern period was changed to a capitalist laissez-faire approach by the 1890s, when Western-style codification was completed and a series of laws was introduced to kick-off the vigorous construction of disaster-preventive infrastructure, followed by ordinances on urban building. As shown later in Table 1.2, a legal regime focused on hard infrastructure-centered disaster management has basically been maintained up to now, while law-making for humanitarian aid to disaster victims has been perpetually hindered by policy debates on the limits of the public role in supporting the individual livelihoods of disaster victims. Perhaps, the modernist pursuit of urban building and industrial development has been so deeply rooted in the legal regime of modern Japan since the Westernization in the late nineteenth century that a challenge has to be made against the very basis of such modernist thought in order to realize “human-centered” disaster management.

Indeed, the capitalist approach has not matched the immense needs in disaster-prone Japan. In 1890, the inaugural Diet rejected a Bill on Relief for the Poor that was intended to ensure national budgetary commitments for disaster relief. Instead the Law on Disaster Relief Funds was enacted in 1899, making it the responsibility of prefectural governments to establish funds to prepare for disaster relief. Such funds, however, were not sufficient to meet the intense need for victim support in mega-disasters. Similarly, market-based private insurance was campaigned for following the government’s 1881 withdrawal of a draft bill on a government-sponsored compulsory disaster insurance system, which was influenced by a theory proposed by the German expert Paul Mayet. This resulted in serious social disturbance when the private insurance companies relied upon earthquake immunity clauses to reject fire insurance claims after the 1923 Great Kanto Earthquake, which caused not only 140,000 casualties but also the destruction of 447,000 houses due to fires caused by the earthquake.

After the failure of the war-time special compulsory insurance system introduced in 1944, the need for a more advanced system of governmental aid became eminently apparent after the end of World War II. The 1947 Disaster Relief Act was enacted as a fundamental law to declare the primary responsibility of the government to protect disaster victims and the social order (art. 1). This law, however, was only applied in practice to the stage of emergency response. As for the succeeding stages of post-disaster response, it was only after 1966 that the present system of government-sponsored voluntary insurance on houses was introduced by the Act on Earthquake Insurance, while numerous laws providing various types of governmental subsidies, such as the 1972 Act on Provision of Disaster Condolence Grants and the 1998 Act on Support for Reconstructing Livelihoods of Disaster Victims, have been introduced in response to each mega-disaster, lacking systematic consistency (see 2.3 below).

In contrast to this winding path in the development of laws for disaster victim protection in modern Japan, the legal regime for national land preservation and disaster-preventive town planning has steadily developed a solid structure. Starting with three fundamental laws on water management in the latter Meiji period, the legal regime on urban planning incorporated since 1919 has established the governmental practice of applying the land adjustment law to the reconstruction effort that has followed every mega-disaster, giving rise to the aphorism “a disaster is the mother of land readjustments.” The present hierarchical regime of post-disaster reconstruction of hard infrastructure is led by the 1950 Act on General Development of National Land and the 1951 Act on National Government Defrayment for Rehabilitation of Disaster Stricken Public Facilities, while the 1951 Act on Land Expropriation provides the detailed procedure for compulsory land-taking in these public projects, which can proceed despite stakeholders’ objections. After the introduction of the Basic Act on Disaster Control Measures in 1961, this trend of making laws for hard infrastructure-oriented disaster prevention has continued, while adding a series of special laws on post-disaster town planning to the regime of the 1968 Urban Planning Act. Those include the 1995 Act on Special Measures concerning Reconstruction of Urban Districts Damaged by Disaster introduced after the Hanshin-Awaji Earthquake, the 2011 Act on Special Zones for East Japan Earthquake Reconstruction, the 2011 Act on Town Planning for Tsunami Disaster Prevention, and the 2013 Act on Recovery from Large-Scale Disasters.

Thus, an imbalance between the struggling legal regime for disaster victim support and the solidly established regime for hard infrastructure rebuilding is apparent in present-day Japanese law. In order to overcome this dualism, legal reform is necessary to bridge the two spheres of public law and private law and incorporate greater representation of disaster victims as indispensable stakeholders in the decision-making process for post-disaster public projects.

2.2 Participation in recovery decision-making

Japan lacks a basic law on post-disaster recovery that guarantees a phase for participatory decision-making in the disaster management cycle. The Urban Planning Act, together with its subsidiary laws which provide for decision-making procedures for each category of town development projects, such as the Land Readjustment Act, has governed post-disaster recovery throughout modern history since the 1923 Great Kanto Earthquake. It should be noted that the procedural characteristics of such laws, particularly their degree of civic participation, have seen changes over time. The original 1919 Urban Planning Law had a simple government-led procedure, which was superseded by the present law in 1968 and progressively strengthened toward increased participatory opportunities via a series of amendments. In addition to the original provisions requiring public disclosure of draft urban plans and a chance for public comment before finalization, a 1980 amendment introduced a clause allowing local ordinances to add further opportunities for civic participation in district-level planning (art. 16, sec. 2). Then, influenced by the post-1995 Hanhin-Awaji Earthquake calls for more substantive civic initiatives,² further amendments were added throughout the 2000s, including civic proposals of district-level plans (art. 16, sec. 3), and proposals by civic groups on urban plans in general (art. 21, bis.). Also, following the 1999 amendments to the Local Autonomy Act, an upsurge in local ordinances enhanced opportunities for civic participation and information access, which was further encouraged by the introduction of the 2004 Landscape Act.

However, in parallel with this constant trend toward more civic participation within the sphere of the law on spatial planning, the increasing influence of neo-liberalism has brought in a series of laws which have deregulated the decision-making procedure to promote privatization of p...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Figures
• Tables
• List of Contributors
• Introduction
• I Typology of Asian disaster law Beyond the developmental state model
• II Aid, compensation, or insurance? In search of an effective institutional basis for early recovery
• III Redefining the recovery Law for human-centered recovery vs. Build Back Better
• Index