CHAPTER 2: THE PRESENT DAY ADMINISTRATION OF COASTAL FISHERIES

Present day Japanese fisheries are basically administered according to the Fisheries Law of 1949, together with some related legislation, particularly the Fisheries Cooperative Association Law of 1948.

The Fisheries Law of 1949 was designed within the framework of the post-W.W.II democratization of Japanese institutions, and had as its principal objective (Article 1) the establishment of “…The fundamental system relative to fishery production, to attain promotion of fishery productivity and democratization of fishery by an overall exploitation of the waters through the function of fishery adjustment organizations whose principal constituents are fishery operators and fishery employees” (Zengyoren, 1979).

To attain that goal detailed modifications to the 1901 Fisheries Law were based on three principles intended to eradicate the remaining elements of feudalism:-

1. Henceforth fishery rights and licenses were to be granted only to fishermen or fishing enterprises actually engaged in fishing, and leasing arrangements were prohibited;

2. The local administration of fishing rights was to be invested only in Fisheries Cooperative Associations (FCAs) or similar organizations; and

3. Sea Area Fishery Adjustment Committees, to be established for each sea area, were charged with preparing comprehensive plans for the full and rational use of coastal fishing grounds, and based on these plans fishing rights and licenses were to be granted to FCAs, other bodies and individuals.

Previously, in 1948, a democratic Fisheries Cooperative Association Law had been enacted, the specific purpose of which (Article 1) was “…To contribute to the purpose of the national economy by increasing fishery productivity and improving the economic and social status of fishermen and fish processors through the development of FCAs.” This law restricted membership in FCAs to fishermen resident in the jurisdictional area of the Association and who were engaged in fishing for 90–120 days a year, the precise period being determined by each FCA. Aimed again at sweeping away remaining vestiges of feudalism, among the democratic principles embodied in the law were voluntary participation (although nobody could fish without a valid membership), democratic control by the membership (by each member being allowed only one vote), and an election and recall system for officers (Zengyoren, 1979).

As a consequence, the FCA has emerged as a vitally important intermediate organization that links the central and prefectural government with the individual fisherman. Although comprising the fundamental unit of government fisheries administration, and being the key organization in the implementation of official fisheries projects, an FCA belongs entirely to the local community of fishermen. The FCA lies at the hub of modern Japanese fishing communities in which it constitutes the focus of social and economic activities. But, as throughout modern history, its principal function remains the planning, management and continuing sustained development of the sea territory to which the individual community has tenure. Fisheries are managed today according to a comprehensive dual system of rights and licenses, both administered by the Ministry of Agriculture, Forestry and Fisheries, according to the Fisheries Law of 1949. In practise, the Ministry delegates most of the responsibility for administering coastal waters to each prefecture.

Fishery rights, which are defined as the right to conduct a particular fishery within a confined public sea, lake or river area, refer in the marine environment to coastal waters, and cover those types of fishery that either employ fixed gear or that exploit a relatively immobile benthos. All coastal waters, with the exception of ports, their adjacent tracts and tracts reclaimed for industrial zones, are divided-up among FCAs or Federations of FCAs (Table 1). In contrast, licenses govern those types of fishery that move gear over often considerable distances in search of highly mobile fish. They are issued for coastal, offshore and distant water fisheries.

Fisheries Rights

The fishing rights system, which basically continued historical practises, is intended to protect coastal fisheries and fishermen against the encroachments of other fisheries and other economic sectors by granting them property rights, (in rem), which are legally protected in full against third parties. However, these rights cannot be loaned, rented or transferred to others, nor can they be mortgaged. Such rights are regarded as the exclusive property of the fishermen to whom they are granted.

Three principal categories of rights are recognized under Japanese law: Joint Rights (kyodo gyogyoken), Demarcated Rights (kukaku gyogyoken) and Set Net Rights (teichi gyogyoken) (Table 1). Joint Rights are granted exclusively to an FCA or to a Federation of FCAs, which in turn distributes them among the membership.

Joint Rights are issued for the coordinated use of a fishing area and its aquatic resources by all members of an FCA. Three categories are recognized; those for the benthos catch, those for small stationary gear set at a depth of less than 27 m, and those for beach seines. The allocation of a fishing territory among these types of gear and the fishermen to be engaged in their operation is internally decided by an FCA.

Demarcated Rights are granted for aquaculture, and are usually valid for five years. They are applied to the small-scale cultivation of seaweed, shellfish, shrimp, sea bream (Pagrus major) and yellowtail. There are two classes, “Special Demarcated Fishery Rights” and “Demarcated Fishery Rights.” The former are granted when many fishermen wish to engage in different types of aquaculture within a fairly large but sheltered, and thus relatively pollution-prone location, and in which, therefore, diverse activities with differing environmental quality requirements must be managed in a compatible and equitable manner. The latter are granted for pond aquaculture that occupies a defined and fixed site, and thus which demands little coordination with other, potentially incompatible activities.

Rights for Large-Scale Set Net Fisheries are applied mainly to herring, migratory trout and salmon fisheries, and in Hokkaido, using gear set at depths greater than 27 m. They are granted to private individuals and private organizations, as well as to FCAs. Since the high capital investment and large operating budget demanded by this technique effectively limits the number of nets, the area and sites of operation can be restricted easily by the prefecture. Small- and medium-size nets, on the other hand, can be operated by many small-scale fishermen within a given area and so they are managed by the FCAs via Joint Fishery Rights.

In every instance joint rights embrace the entire sea territory of an FCA, whereas demarcated rights and those for set nets are granted only for specific areas within the joint rights area. Further, whereas all fishermen belonging to a specific FCA are entitled to fish in that associations's joint rights areas only a limited number are granted set net and demarcated rights. Whereas all FCAs have a joint rights area the same is not true of the other two types of rights, which are granted only if an FCA has areas within its sea territory suitable for them.

Fishing Licenses

Licenses for small-scale fisheries conducted in coastal waters are issued by each prefecture to individual fishermen, or to an FCA, where the number of applicants is large. In the latter case the prefectural government decides only the number of licenses to be allotted per FCA, and each Association then distributes them among its membership. An FCA may receive several or more individual licenses, as a “package,” which then permits individual fishermen to switch activities in different years in consideration of technological change or altered family or personal circumstances, for example. In principle licenses are issued for fisheries not covered by fishing rights and in particular for migratory species taken from trawlers larger than 15 gross tons and purse seiners over 40 gross tons. Fishing licenses are not regarded as a legally protected property right, as are fishing rights, and licensed fisheries operate under free competition.

In the interest of resource conservation the Ministry places limits or outright bans on some fisheries. Certain fisheries, for example, are classified as “Semi-Designated,” and require an annual renewal of permission from the Ministry. Such fisheries that require ministerial permission, as do those regulated at the prefectural level, may also be further restricted by limitations on vessel size and number, gear type and size, seasonal use, fishing ground location and catch size.

The Distribution of Fisheries Rights and Licenses

When fisheries rights are awarded exclusively to FCAs no problems of distribution occur between the Association and the government, and distribution among its membership is an internal question to be resolved by each FCA. Allocation problems could arise in rights to Large-Scale Set Net Fisheries and in Demarcated Fisheries, where private organizations and private individuals, in addition to FCAs, are eligible to apply for rights at the same time, were it not for particular conditions of eligibility and an order of priority set forth in the Fisheries Law, that ranks FCAs first.

Although the details vary somewhat according to the specific fishery, those eligible to apply for fisheries rights must possess prior fishing experience, must not have been found guilty of flagrant violations of the Fisheries Law or pertinent labour regulations, nor can they hold other fishery rights. Eligible applicants are then ranked as follows: (1) FCAs; (2) organizations composed of a large number of fishermen from a particular district; (3) Production Unions consisting of 7 or more fishermen and which are entitled to financial assistance; and (4) private individuals and private organizations. Ceteris paribus, by law, FCAs will always receive top priority for the award of any fisheries rights, whereas private individuals and private organizations will always be ranked lowest.

That arrangement for the distribution of fisheries rights breaksdown, however, when an FCA lacks experience in a particular fishery. When the application of an FCA is disallowed, usually through alleged lack of experience, the ultimate decision is left to the prefectural Sea Area Adjustment Commission. In the granting of fisheries licenses, however, and particularly for smallscale fisheries, the only criterion applied is eligibility. No order of priority, as in fisheries rights, is applied although the basic principles of such an ordering do function as implicit guidelines.

SEA-AREA ADJUSTMENT COMMISSIONS

One of the objectives of the Fisheries Law of 1949 was to develop the nation's fisheries in a democratic, comprehensive and coordinated fashion. To achieve this, fisheries adjustment commissions were established to cover all Japanese sea areas and to ensure the coordination of prefectural fisheries development within an overall national framework. These commissions form an essential intermediate link between the national and prefectural levels of Japanese fisheries administration.

There are two types of such commission. First is the Sea Area Fishery Adjustment Commission (kaiku gyogyo chosei iinkai), which is under the joint jurisdiction of the Minister of Agriculture, Forestry and Fisheries and the Governor of the prefecture, metropolis or part of Hokkaido that it covers. The second type is the United Sea Area Fishery Adjustment Commission (rengo kaiku gyogyo chosei iinkai). This type is under the joint jurisdiction of the Minister and the Governor of the local administrative unit that established the particular commission. In principle, this system of joint jurisdiction ensures nationwide adjustment.

The first type of commission is established by the Ministry, which divided the marine waters into 65 sea areas as administrative units for fisheries adjustment. Essentially, each sea area corresponds to the maritime zone of each coastal prefecture, apart from those controlling the marine waters of major metropolises, and except for the island of Hokkaido, which, although a single prefecture, because of its large size and the importance of its fisheries is divided into 10 sea area units.

In principle, each Commission is composed of 15 Commissioners, 9 of whom are officially elected by the fishermen and 6 appointed by the Governor (4 of whom are fisheries specialists and 2 who represent the public interest). But the smaller sea areas designated by the Minister have fewer Commissioners (6 elected members, 3 specialists and one person representing the public interest).

The main function of these powerful bodies is the preparation of plans for fishing grounds. Their other important responsibilities include decision-making on the eligibility of fisheries rights and licenses, conflict mediation, and the advising of local government on the management of living aquatic resources.

Based on those plans and that advice, detailed regulations to control fishery operations and to ensure the conservation and rational exploitation of resources are established by the Fisheries Agency of each prefecture. Prefectural regulations are supplemented and enforced by each FCA.

Whereas the Sea Area Fishery Adjustment Commission is established to make, monitor and modify fundamental management plans for sea areas under the control of a local government, the other type of commission, the United Sea Area Fishery Commission, is established as a particular need arises. One of the major functions of these united commissions is the control of the fishing of seasonally migratory stocks -- which, by definition, cannot be regulated by any one prefectural government alone -- via the issuance of licenses for such fisheries as tuna longlining, salmon drift-netting or squid-trolling.

These commissions can be established in one of three ways: should the need arise to make a comprehensive, overall adjustment in a particular area, the Minister can order the organization of a United Commission; a governor of any local administrative division can establish such a Commission to solve a particular problem in a zone that covers more than one Sea Area Adjustment Commission (he must do so in coordination with the governor of another local government unit, should the intended United Commission cross local government administrative boundaries); and third, in consultation with equivalent commissions, a Sea Area Fishery Adjustment Commission can establish a United Sea Area Fishery Adjustment Commission.

In areas such as the Inland Sea coastal fishing is immensely complicated and conflicts commonplace and intense as a result of many fishermen from different FCAs, prefectures and Sea Area Fishery Adjustments Commissions often employing distinct and conflicting gears and operating ostensibly in a shared water space. Under such conditions permanent United Sea Area Fishery Adjustment Commissions are established and are under the direct control of the Ministry.

THE ROLE OF THE PREFECTURE

Detailed regulations to control fishery operations and to ensure the conservation and rational exploitation of living aquatic resources are established, as required by local conditions, by the prefectural Fisheries Agency. Essentially, such regulations define closed seasons and other limitations for the various fisheries, control the kinds of gear and methods that may be employed by professional fishermen as well as those specifically for recreational fishing, establish the minimum exploitable sizes of particular marine animals, specify closed areas for the purpose of resource conservation, and set various “associated” rules.

Here, administration at the prefectural level is illustrated with particular reference to Okinawa (Okinawa Prefecture, 1977), since information on the application of the Japanese system of inshore fisheries management in this predominantly coralline, sub-tropical environment may be of heuristic value to fisheries administrators operating under similar environmental conditions elsewhere in Asia.

Complete Prohibitions

Neither turtle eggs of any species nor corals of the Orders Scleractinia, Gorgonacea and Stolonifera may be collected in Okinawa Prefecture, nor may they be owned, processed or sold if they originate from prefectural waters.

Size Limitations

In the interests of resource conservation, the exploitation, together with the keeping and sale of their products, of specific marine animals is prohibited if established minimum size requirements are not met. Harvesting of seed stock for aquaculture is excepted, provided it is specifically licensed by the governor.

Closed Areas

According to the need to conserve marine resources, restrictions may be placed on exploitative activities in particular locations. Such restrictions may be applied to the use of a particular gear or technique, to the exploitation of a particular fishery, or can be a total ban on any exploitative activity whatsoever.

Closed Seasons

Except for the gathering of seed stock for aquaculture, closed seasons are imposed on the exploitation of turtles, Eucheuma seaweed and spiny lobsters. In the interest of conservation, it is illegal to capture the green sea turtle (Chelonia mydas), the hawksbill (Eretmochelys imbricata) and others, and to harvest red seaweed during the two month period June 1 through July 31 each year. Lobster fisheries are closed for three months, from April 1 until June 30. These closed periods correspond with the spawning seasons of the animals and the propagation period of the seaweed.

Limitations on Fishing Gear

This category of regulations pertains mainly to forbidding the use of certain types of nets, controlling the use of electrical gear, restricting boat numbers in particular types of fishery, and limiting the methods that may be used by amateur fishermen.

Okinawa Prefecture imposes two types of restrictions on net use. First, nets with a mesh size of less than 28 mm may not be used in the fish drive, except to take specified small target fish, including juvenile rabbitfish (Siganus spp.), cardinalfish (Apogon spp.) and damselfish (Abudefduf), among others. Second, in summer, from June 1 until September 30, the use of the trammel gill net is prohibited, since the fish caught would spoil rapidly in the high temperatures of the shallow waters inside the reef, and also because this is the spawning period of several species of sea bass.

The use of electricity in fish operations is also restricted. In Okinawa it is illegal to operate underwater gear with the use of electricity, and in medium- and small - scale seine net fisheries, lift netting and pole-and-line fishing, 5 kw is the maximum permitted capacity of electical lamps fitted per boat.

Boat numbers are also restricted in certain types of fishery. For lift netting a maximum of two boats can be employed, and in medium-scale seine netting no more than three can be used.

Recreational fisheries are also restricted to pole-and-line, hand line (without the use of a dynamo-powered light or chumming), a small landing net or scoop net, a casting net thrown from the shore, spearing or gaffing, and wading for collection in shallow waters. Licensed, professional fishermen and crew members of fishing boats are prohibited from employing these techniques.

Further prefectural control is excercised by the issuance of licenses for specific categories of fisheries in waters not included within the Demarcated Area Rights of an FCA. Licenses, issued per boat and not per fishereman, and valid for three years, must be obtained from the governor to engage in smallscale seine netting (using boats of less than 5t); coral-collecting (using boats of less than 5t); tuna, bonito, swordfish and shark fisheries (with boats 5–20t and employing either floating long line or angling gear); long line fishing for demersal species (from boats larger than 5t); collecting fish for sale to aquaria if from the 125 species described in the “Fisheries Rule Book”; and, using boats larger than 5t, divers assisted by compressed air, small-scale fixed netting, stand netting, lift netting, stationary gill netting and fish driving.

THE ROLE OF THE FCA

In terms of day-to-day operations, Japanese littoral fisheries are, although subject to higher level regulation, essentially self-managed by the individual FCAs or federations of FCAs. This relatively high degree of local autonomy enables local fishermen, through their role on FCA committees and at general meetings, to determine the division of access rights among individual FCA members and to ensure that the interests of all parties involved are considered and accounted for. It also permits higher level fishery regulations to be adapted to regional differences in ecology, target species, fishing effort and level of industrialization or other impacts on local fisheries, among other things. Further, it guarantees that fishery management strategies, processes of conflict resolution and inter-personal and inter-group relationships will be, to a large extent, based on local customary law and codes of conduct.

Although the interpretation, implementation and enforcement of national and prefectural fishery regulations is to a large extent in the hands of the FCA, there is nevertheless constant and continual interaction among the levels of the fishery administration to verify the various interpretations and understandings of laws and regulations. This is clearly a legacy from feudal times, since, as has been demonstrated above, the Japanese small-scale fisherman has long been affected by higher level authorities. However, it is also of great practical importance since fishermen, commonly unaware of all the higher level laws and regulations, operate mostly according to local customary law. On the other hand, prefectural and national officials are normally ignorant of customary law.

The continual process of interaction among the levels permits the incorporation of customary law within the regulations made at the higher levels and serves to foresee, prevent and resolve conflicts that might arise between the two bodies of law. The control of resources from within a fishing community as well as from above are two complementary and mutually reinforcing channels that constitute a viable system for the administration and management of coastal fisheries.

The basic function of a Japanese FCA is to administer local coastal fisheries in terms of the Fisheries Law of 1949. This they do mainly by implementing and enforcing national and prefectural legislation and regulations which they supplement or complement, as local conditions require, by rules and regulations locally-made by the FCA. These local rules are then formalized in an FCA's “Executive Rules for Licensed Fisheries,” which are revised periodically and submitted to the prefectural fisheries office for re-approval each time an FCA applies to have its rights renewed. A second principal function of an FCA is to represent its membership's interests at higher administrative levels and vis-a-vis such private parties as industrial corporations whose actual or potential operations have or would have an impact on local fishery operations, and where necessary to negotiate compensation payments (vide infra).

The Functioning of FCA Administration

As specified by law, the ultimate legislative body of an FCA is the General Assembly (sokai) of its entire membership, which convenes either annually of bi-annually, unless exceptional problems require an extraordinary meeting. In large FCAs, such as the 700 member Yaeyama FCA, or the 400 full-time members of the Otaru FCA, in Hokkaido (Short, n.d.), the General Meeting is too unwieldy for routine matters. It is therefore represented by a Representative General Assembly (sodaikai), which itself meets only annually to review the previous year's activities and to approve plans for the following year.

The routine functioning and external relations of an FCA are handled by an Executive Committee elected by and responsible to the General Assembly. That of the Otaru FCA, for example, consists of a President (kumiaicho), a Vice-President (senmuriji), two advisors (kanji) and nine regular members (riji). The president and vice-president are professional administrators whose reelection is virtually a certainty. Regular members are, however, all fishermen who must win votes from within their community to ensure re-election.

Despite being represented, administered and advised by a Board of Directors, through their small-group decisions the individual fishermen of an FCA retain control of their own affairs, especially those pertaining to access to a fishery. In Otaru, as in the Yaeyama and Itoman FCAs of Okinawa Prefecture, fishermen are organized into fishery type squads (han) and location of residence groups (ku). Opinions of these smaller units are communicated to the Board of Directors, which is obliged to follow them as closely as possible. In this way the fishery squads and residential groups are the main entities in policymaking with respect to resource allocation.

The role of fishing squads in FCA administration is wellillustrated by the small-scale stake-netters of Okinawa. There the stake-net is a widely employed traditional technique, particularly among the fishermen of the Itoman FCA.

This stake-net fishery has been but little controlled by formal regulations. Indeed, prior to the General Meeting of the Itoman FCA in 1983, in common with other types of fixed gear, the only formal regulation applied was a prohibition on the use of other fishing techniques in the coastwise area in front of a stake net and that might intercept its catch (Ministry of Agriculture and Forestry, 1938, cited in Akimichi, 1984). Then, in 1983, the maximum number of nets that could be employed per fishing unit was defined by formal regulation.

In contrast, this fishery was strictly regulated among the stake-net fishermen themselves via regulations drawn-up during an annual assembly of the stake-netters. Although legally informal, it is these rules that govern entirely the behaviour of the stake-netters, for whom they are iron-clad.

As is usual among fishing squads within an FCA, the principal purpose of an annual meeting is to discuss issues arising from use rights and to ensure equitable use of the territory, as well as to resolve inter-group conflicts. Among the use of territory issues discussed by a stake-net squad would be, for example, the proper allocation of nets and net-fixing procedures in newly discovered fishing territories. When mutually acceptable solutions to problems cannot be reached, further discussion is deferred until the following year's meeting.

That the decisions reached and the regulations established at such meetings are regarded as formal within the stake-net squad is readily apparent, since one of the members is appointed secretary to the meeting, of which he has to keep a detailed record. This record, when added to those of previous meetings, then constitutes the “Rule Book” through which future potential conflicts are, if possible, anticipated and managed, and if that is not possible, resolved. Further, although annual squad meetings had been held only infrequently since 1945, those regulations are still observed.

The main regulatory principles and rules of stake-net fishing decided at the annual squad meetings over the years are as follows. As is the case in most other types of fishing, the rule that guarantees priority rights to a first-comer to work a specific fishing spot is strictly upheld to define territorial division. In the Okinawan stake-net fishery first-comer's rights are claimed by physically marking the territory that it is intended to work the next day. This claims a right that is only valid among users of a particular technology, hence a location thus marked by a stake-netter could be preempted by a gill-netter, for example, but never by another stake-netter. However, in the few territories that are large enough to be worked by two or more stake-netters, late-comers can gain admittance by seeking permission from the first-comer to operate simultaneously.

Each stake-net territory is named and specific rules governing the use of each except the least productive have been drawnup. A particular fishing territory embraces from one to five fishing spots, and in the smaller territories the priority right rule is applied to all the included spots. However, squad regulations for the use of the few larger territories permit spots to be worked simultaneously by two or more stake-netters. Where territories can be shared further regulations prescribe the direction and distance over which wing nets may be extended. That is, territories may be shared if they are large enough to support the mutually unimpeded operation of two or more nets. Supplementary rules also govern the arrangement of wing nets in particular territories. Typical is that requiring the inflection of the ends of wing nets in certain locations, to permit equitable access.

Within an FCA equal access to an entire exclusive rights area is not necessarily enjoyed by all fishermen in all types of fishing. Some waters are reserved for the exclusive use of individuals or squads based on agreements made between the various squads and approved by the Board of Directors. In Otaru management strategies vary greatly among the different types of fishery. Whereas gill-netters, for example, may fish anywhere in the FCA's territory, in the small-scale fixed-net fishery individual operators are assigned fishing spots based on their traditional usage patterns, since these nets must be individually tailored to the topography of the sea bottom in each spot fished (Short, n.d.). In Tobishima, in northern Honshu, octopus holes within a joint rights area are owned and inherited as personal property (Nagai, 1951). In other fisheries, as in Yaeyama, for example (vide infra), a lottery is used to allocate valuable fishing spots among squad members whereas free competition and firstcomer's rights prevail in less-productive locations.

Supplementary Rules

In the Yaeyama FCA of southwestern Okinawa, for example, only fully paid-up members possessing the appropriate licenses and who work for at least 90 days per year are permitted to fish. Rights and licenses can neither be transferred nor loaned, but they can be inherited by a kinsman or a successor, provided that such a person is an FCA member (Ruddle and Akimichi, n.d.). That FCA's local rules state that four kinds of seaweed together with spiny lobsters are seasonally closed, and that the use of a stationary gill net is forbidden during the summer (June 1 through September 30). All other fisheries may be operated yearround. However, the President of the FCA may at any time restrict the harvesting of any species to conserve resources and to control the fishery.

Further, with the exception of the black-lipped pearl shell (Pinctada margaritifera), which can also be exploited by corporations, local rules state that exploitation of benthos is limited to individual fishermen, who can harvest them freely within the waters belonging to the FCA. Net fisheries, however, are more strictly controlled, and are limited to those FCA members who own a boat and with experience in operating the gear licensed. Entry is also controlled by restricting the numbers of nets per fishing unit.

The President of the FCA can restrict any of the aspects of net fisheries regulations, but in this case he does so on the advice of the “Integrated Management Committee for Fisheries,” (gyogyo togo kanri iinkai) which consists of three representatives of each type of net fishery. This consultative committee also decides on the membership of the net fishing category, as well as on the period and area of exploitation by netting, together with the associated conditions for each type of fishery within the netting category. The decisions of that committee are reported to the Executive Committee (rijikai) of the FCA, which, in turn, submits them to the General Assembly (sokai) of all the members of the FCA.

FCA Membership and the Transfer of Rights

As formally stated in the Fisheries Law (1949), fisheries rights and licenses can be given only to individuals or enterprises actually engaged in fishing, and leasing arrangements were forbidden. Earlier, the Fisheries Cooperative Association Law (1948) had restricted membership in an FCA to residents of the area covered by a particular Association and to persons engaged for a minimum of 90–120 days/yr in fishing, as locally decided (vide supra). Further, although these rights were the property of individual fishermen they are restricted in that they cannot be loaned, rented, transferred or mortgaged to others. Rights can, however, be inherited by a kinsman or a successor, provided that such a person is also a member of the same FCA.

The restrictions placed on access to a fishery and the transferability of fishing rights set forth in these laws were intended to eliminate absentee ownership and the concentration of assets and profits in the hands of a few non-fishing capitalists, and thus once and for all to break the stranglehold over coastal fisheries by wealthy “sealords” that in pre-war times not uncommonly kept the working fisherman permanently impoverished and beholden by an endless cycle of indebtedness. In their intent to control excesses it is unlikely that these laws ever really sought to prohibit all transfers of rights other than those based on succession or inheritence or to make access totally equitable nationwide, since clearly this would have been impossible given the great weight and variety of tradition and customary law throughout Japan. Further, as has been demonstrated earlier, the transfer of rights (either permanently or temporarily) has historically been a major factor in the control of access to Japanese coastal fisheries. In earlier periods village rights were extended to other communities and individuals on the payment of fees, and government rights were similarly transferred in return for cash payments.

Those limitations placed on the disposition of an individual's property rights may seem to represent an attempt to impose uniform nationwide entry regulations on a wide variety of traditional customary regulations long-established in thousands of individual fishing communities. Although both the letter and the spirit of the laws is upheld to exclude absentee capitalists from joint fishing rights areas, they are essentially of only secondary importance to unwritten, village customary laws.

Village customary laws with respect to the acquisition of fisheries rights and their method of transfer vary considerably according to local traditions. This precludes easy generalization about the situation throughout Japan, since local practise -- even though upholding the spirit of the national law -- may differ considerably from its letter, on a characteristically Japanese case-by-case basis. Further, only scant information is available on the topic since, not surprisingly, few informants in fishing communities are willing to discuss customary local practises that contravene the letter of the national laws. Thus only a few examples are used here to illustrate the present situation.

In general, entry to coastal fishing is through on-the-job training via which youngsters acquire fishing skills over many years. After this they receive rights within their own community's tenured waters. Some communities formalized this through rigorous apprenticeships, such as the renowned system formerly practised by the specialized fishing community of Itoman, Okinawa. In this system the ambushi (stake net) fishery was especially important, since young boys were initiated by this technique as the first major fisheries task to be learned. This 1–2 year training period in ambushi was an essential prerequisite for learning more difficult techniques, and mastering it became a rite de passage for future independent fishermen (Akimichi, 1984).

But such formal apprenticeship systems appear to have been uncommon in Japanese coastal fisheries. Most were informal, as they still are, and based on a training period within a family or kin group, whereby youngsters gradually learned and mastered the various techniques through years of on-the-job training supervised, by and in partnership with, older kinsmen and family members. After gaining sufficient experience a younger fisherman can then apply to the FCA for fishing rights. He can then work independently of his early training partner, or, more commonly, continue to work with him and eventually succeed to his rights on retirement or death. Indeed, most coastal fishing units involving more than one person in the Yaeyama FCA, as in many other areas, are crewed by a father-son team or by two or more brothers. In such cases, in many FCAs, the senior person will own the fisheries rights and be a full, voting member of the Association, whereas the other(s) will be an Associate Member (non-voting). The requisite experience to qualify for FCA membership can also be gained by crewing on a boat.

Research on present day “sea” tenure in Lake Biwa reveals that access to joint fisheries rights (JFRs) varies greatly in detail among FCAs and is strongly influenced by local historical, economic and socio-political factors, as well as by everyday face-to-face interpersonal relationships within a village. This is amply demonstrated in a comparative study of FCAs that operate under varying degrees of urban influence (and therefore of alternative full time or supplementary employment opportunities) and with variations in their level of economic dependence on JFRs (Kada, 1984).

In one urbanized FCA with relatively low dependency on JFRs many members combine fishing with jobs in the service sector. This FCA now operates two traditional fish traps (eri), one of which, in contravention of the formal rules, has been used exclusively by the same family for about a century. Although FCA members are discontent with the situation “… none dares speak up. This is partly because … members hesitate to break the long-standing social order of the FCA, where face-to-face relationships are considered the most important.” (The importance placed on maintaining the established social order among the membership is also vividly described for the Shingu FCA of Kyushu [Kalland, 1981].)

In a semi-urbanized FCA highly dependent on JFRs the allocation of rights to operate eri is decided by a Management Committee. Although in this Association the formal rules give priority in the allocation of eri rights to small families that lack the manpower to engage in net fishing, they are seldom put into practise. Instead, eri rights are usually allocated to powerful members of the FCA. One informant explained the rationale of this as: “Since a JFR is an important but scarce asset for the FCA it should be allocated to those who are skillful, who have enough capital to invest to pay the fees, and who are reliable” (Kada, 1984).

In another cooperative along the lake, this one rural and moderately dependent on JFRs, fish weirs (yana) are more important than eri. About a century ago use of this technique was allocated solely to the village paupers. With passage of the Fisheries Law (1949) the paupers became the dominant class in local fisheries (since local landowners lost their absentee fishing rights), and their village became the leader of the FCA formed from the amalgamation of the territories of four neighbouring villages.

For reasons of historical precedent, yana - fishing remains allocated to just the descendents of the pre-war pauper class. This practise is regarded as fair by that group since it represents social justice for the descendents of the paupers who had been long discriminated against. Their “subjective legitimation logic” is that “This right has been long-preserved and was succeeded to by our ancestors of this village, so that no other village could enter. In addition, this privilege cannot be extended to all FCA members within our village, either. Yana fishing has its ups and downs, it would be unfair in the long run if they participate in yana when fishing is good and withdraw when it is bad” (kada, 1984).

Another rural FCA that is highly dependent on its JFRs for eri and yana fishing received its rights in 1098 A.D., from a shrine in the nearby former capital city of Kyoto. It is noteworthy that its present territory has remained unchanged during these 900 years, and that this territorial conservativeness has been maintained to prevent loss of its yana rights to other villages.

In this village FCA membership is not open to all residents. New residents must live there for one generation (or about 30 years) before they become eligible to apply for membership and fishing rights. Further, when a branch family is established by a son of a stem family of this village the new family must wait 10 years before it can apply for membership and rights. On the other hand, succession of stem family members to fisheries rights has been automatic through the generations. Traditions runs deep in this FCA, which maintains an exhaustive record of family lineage and succession to fishing rights.

Further, owing to a rule that originated 900 years ago with the granting of the original rights, in this village (unlike that described previously) access and succession to fishing rights was restricted only to families of higher social status. Since it remains an important symbol of past traditions the economically insignificant four-wing scoop net fishery, done in the river that flows into Lake Biwa at this village, is still reserved exclusively for descendents of the pre-war privileged families.

In the fishing villages of Lake Biwa the “subjective legitimation logic” pertaining to the allocation of JFRs, in addition to being strongly influenced by historical conditions peculiar to each community, also either consciously or unconsciously reflects an FCA's membership's perception regarding equity and social justice. It is important to note that this reflects not just that among present day members and their families, but just as strongly -- and perhaps more so in some cases -- social justice for the ancestors and its implication for long-term reciprocity in paying off the debts incurred by descendants of former upper class families, who for centuries had discriminated against other social strata. In this the Lake Biwa region is clearly not exceptional, since a similar legitimation logic is common throughout contemporary rural Japan.

Birth-right, if followed by the requisite training and residence within the boundaries of a given FCA, is the principal means by which FCA membership and fishing rights are obtained. This is clearly demonstrated for the ambushi fishermen of Itoman, Okinawa, where those who were able to become full-time specialists in this technique belonged to a particular indigenous descent group (munchu or bara [lit. bara:“abdomen”]), of which 42 existed in Itoman in the 1920s. Ambushi fishermen belong almost exclusively to the sumu-bara descent group (Akimichi, 1984). Marrying into a community and then working with the in-laws is also another traditional means of gaining access to a fishery.

The foregoing exemplifies the condition in those Japanese fishing communities where traditional values and behavioural norms remain dominant. Conditions differ enormously in lesstraditional situations, particularly in areas like the Inland Sea that have undergone massive economic structural change during the last 40 years. In a rapidly changing society, with easier access to education for all people and with a vastly enlarged range of employment opportunities than hitherto, the role of kinship in ensuring the continuity of coastal fishing has diminished. Indeed, such is the situation now that in many families younger men who in the past would have succeeded to their father's fishing rights have opted for other careers. As such, finding a successor has become a serious problem for a large number of aging fishermen. (This has now become a nationwide problem.) On the other hand this situation has increased the opportunities for persons of non-fishing backgrounds to enter the sector. This can be done legitimately (i.e., following the letter of the Fisheries Law) and crewing for (being apprenticed to) an established, older man to obtain the required fisheries experience and residency for FCA membership. Entry can also be effected by means that do not follow the letter of the law.

In the now heavily industrialized Inland Sea region, the synergyistic impacts of environmental pollution and overfishing have put a premium on the diminishing aquatic resources. This, in turn, has led to the emergence of the illicit transfer of fishing rights, in terms of the laws of 1948 and 1949. In some FCAs when a member retires from fishing he illegally sells his license to another member, at a high price. This the retiring member does by first making a financial deal with the other man and then by requesting the FCA to issue his license to him. The Association officers generally honour such requests. In fact, “…there is no way for fishermen to escape these practises which have become well-nigh institutionalized” (Befu, 1980:333).

Befu's interpretation begs the question of whether or not such practices have traditionally been institutionalized in terms of local customary law. It is not unlikely that they long have been. Clearly, however, they should be interpreted in terms of the “logic of a [traditionally] reciprocal society” (Nakamura, 1986). Payment may be made in cash, a percentage of the catch, as a reciprocal favour, or even as political support. It is also probable that such transactions occur at various levels in the entire fisheries organization.

Clearly, facilitating, or at least not objecting to or hindering, such customary transactions would be in the best interests of the leadership of an FCA, providing that the transactions are sanctioned by the community, do not prove devisive, and particularly if they do not lead to the undue accumulation of rights and wealth by individuals -- thereby contravening the spirit as well as the letter of the post-war fisheries legislation -- since successful leadership of an Association is often acknowledged as a step towards wider political office (vide infra).