By Yumeno Grace Nishikawa, LLM, y.nishikawa@rug.nl

Climate change and air pollution are now widely known for inflicting damage to the environment and human health. Accordingly, there is a growing number of climate litigations around the world. In the past few years, Japanese citizens have launched several lawsuits requesting the injunction of the construction and subsequent operation of coal-fired power plants for the purpose of reducing negative effects on climate and health. This blog post aims to demonstrate how Japanese citizens try to protect their health from harmful emissions by claiming the right to a healthy and peaceful life by discussing the arguments made in Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al. , which is currently pending before the Kobe District Court.

While the international community has been working towards the coal phase-out, Kobe Steel Ltd. and others planned to construct new coal-fired power plants. This construction plan attracted mediation and eventually a civil lawsuit in 2018. In Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al., the Plaintiffs argue, among others, that the construction and operation of the new coal-fired power plants violate the right to a healthy and peaceful life (健康平穏生活権).

Personal rights and right to a peaceful life in Japanese law

The right to a healthy and peaceful life invoked by the Plaintiffs is not an established right in Japanese law, but a concept that they have newly derived from the interpretation of so-called ‘personal rights’ (人格権), a concept under Japanese constitutional law and tort law.[1]

As there is no general right to environment nor right to health in the context of climate change or pollution in Japanese law to support their claims, it is conventional that citizens seek the basis in ‘personal rights’. Despite their broad and ambiguous scope, personal rights, which cover a variety of interests related to personal well-being, are a firmly established concept. The right to a peaceful life (平穏生活権) is derived from the interpretation of personal rights and has been increasingly recognised in different contexts, yet largely at lower courts.[2] One pertinent example is a case granting a provisional injunction related to the operation of a waste disposal plant whose construction was already completed based on the risk of water pollution.[3] In this judgment, the Sendai District Court stated:

even if it is possible to secure water that is objectively adequate for drinking and living, people suffer from mental distress […] the right to a peaceful life is infringed if the quality of water is not adequate according to the perception of an average person or it is not possible to secure the adequate amount of water for laundry and bathing.[4]

 According to Yoshimura, who cited this passage, the right to a peaceful life deals mostly with the anxiety (concerns or worries) that prevents people from living with a peaceful mind.[5] While the protection against (perceived) ‘risks’ rather than ‘actual harm’ to health is still controversial, the right to a peaceful life seems to expand the scope of protection covered by personal rights in this direction.

Furthermore, considering the prima facie evidence of the risk provided by the applicants, the court also reversed the burden of proof for violations of personal rights by requiring the plant’s operator to prove the absence of a high probability of the danger. This is a deviation from the traditional method of determining a violation of personal rights to life, bodily integrity, and physical health, which required claimants to prove the high probability of the occurrence of health damage (‘existence of concrete danger’).[6] Thus, courts can be more lenient with the duty of proof to side with citizens when the protection of the right to a peaceful life is at stake.

 Right to healthy and peaceful life in the Kobe case

In Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., the Plaintiffs interestingly invoked ‘the right to a healthy and peaceful life’. According to the Plaintiffs, this new right to a healthy and peaceful life, in this case, refers to the right of people to sustainably live with clean air. They argue that the coal-fired power plants increase the risk of harm to the Plaintiffs’ life and health as the power plants are expected to emit harmful pollutants, including NOx and PM 2.5, for a long time. The Plaintiffs claim that their right to a healthy and peaceful life is thereby violated.

By adding the word ‘healthy’, the Plaintiffs emphasise the existence of risks to life and bodily integrity, thereby distinguishing their claims from a more subjectively oriented right to a peaceful life. The Plaintiffs stated that the right to a healthy and peaceful life was equally important and deserved the same level of protection as traditional personal rights to life, bodily integrity, and physical health since they were closely linked. On the other hand, they tried to maintain the lower standards of proof by claiming that the right to a peaceful life would be violated when there was fear of serious health risks according to the perception of an average person even if the high probability could not be proved.

By elaborating on case law and academic theories, the Plaintiffs argue that a violation of the right to a peaceful life in the context of health must be established when there is ‘reasonable fear’ of a risk based on ‘objective evidence’ as opposed to ‘concrete danger’. According to this modified method, the elements to be considered would be the nature and size of the risk of damage (for instance, risk of developing or exacerbating respiratory and cardiovascular diseases) , the reasonableness of having the fear of the risk based on the perception of an average person, and the (ir)rationality of the risk. Thus, invoking the right to a healthy and peaceful life may raise the standards of protection, while reducing the burden of proof of the risk (in terms of the probability) on the Plaintiffs’ side.

In short, the complaint in Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al. is remarkable as the Plaintiffs are trying to expand the scope of the concept of ‘personal rights’ under Japanese law, by seeking to raise the standards of protection against environmental health risks through the right to a healthy and peaceful life. The right to a healthy and peaceful life, as a variant of the right to a peaceful life, aims to incorporate protection against various health risks, in this case specifically air pollution from coal-fired plants. The development and expansion of the concept of the right to a peaceful life generally shows potential to cover a wide range of interests, with emphasis on both physical and mental health.

It may be very challenging for the judges to fully accept the Plaintiffs’ claims as they also address various risks arising from global warming, which are more ambiguous. However, it is hoped that the argument on air pollution based on the right to a healthy and peaceful life helps the court to recognise the risk and take a more protective approach to the citizens like it did in the aforementioned case related to water pollution. The upcoming judgment is noteworthy as it will be the first case to rule on the right to a healthy and peaceful life.

[1]There is no written legal basis for this right, but it is believed to originate from Article 13 of the Constitution; in private law, personal rights are derived from (the interpretation of) Articles 709, 710, and 723 of the Civil Code; see Hideaki Kurosawa, ‘On the Organization Personal Rights in Civil Law’ (1997) 33 The Japanese Journal of Law and Political Science 133, 133; Eri Osaka, ‘Reevaluating the Role of the Tort Liability System in Japan’ (2009) 26 (2) Arizona Journal of International & Comparative Law 393, 397; Setsuo Miyazawa, ‘Social Movements and Contemporary Rights in Japan: Relative Success Factors in the Field of Environmental Law’ (1988) 22 Kobe University Law Review 63, 66.

[2]Noriko Suka, ‘Marumorimachi Haikibutsushobunjyou Sashitome Seikyu Jiken’ in Tadashi Otsuka and Yoshinobu Kitamura (eds) Kankyouhou Hanrei Hyakusen (3rd edn, Yuhikaku 2018) 86, 87.

[3]ibid 86.

[4]Sendai District Court, App No Heisei 2 (yo) 252 (28 February 1992) 789 Hanrei Times 107 (emphasis added).

[5]Ryoichi Yoshimura, ‘Fuhoukouihou ni okeru Kenrishingaiyouken no Saisei’ (2008) 5・6 Ritsumeikan Hougaku 569, 579.

[6]Tomomichi Watanabe, ‘Osaka Genpatsu Unten Sashitome Soshou Daiichi Hanketsu’ in Tadashi Otsuka and Yoshinobu Kitamura (eds) Kankyouhou Hanrei Hyakusen (3rd edn, Yuhikaku 2018) 204, 205.