Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)

This extensively researched and succinctly written book effectively compares the processes and outcomes of several major movements for victims’ redress from governments in Japan and Korea. The focus is on campaigns that developed especially from the 1990s, an era of perceived “judicialization of politics, enabled by democratization in Korea in 1987 and more competitive electoral politics in Japan since 1993” (p. 203), when victims sought redress for poor decisions regarding Hansen’s disease (leprosy, as discussed in ch. 3), blood tainted with Hepatitis C (ch. 4) and abductions by North Korean authorities (ch. 5).
Arrington examines not just the respective victims’ contestations with the state, but also the nature and timing of their interactions with key mediating institutions (ch. 2): the legal profession (to pursue litigation), the media (providing publicity for their causes), and activist groups (for lobbying). In particular, she emphases how too much early engagement with politicians – even “elite allies” – aimed at achieving legislative or bureaucratic intervention, as occurs more in Korea’s more open-textured democratic process, may lead perversely to poorer redress outcomes as the issue becomes more polarised politically.

By contrast, due to the more centralised and fact-oriented media as well as smaller-scale NGOs in Japan, victims there relied more on litigation for conflict escalation. As court cases were filed and occasionally won or settled, typically across multiple jurisdictions, victims of Hansen’s disease and HCV-tainted blood supplies began to generate more local media and community support, and eventually national coverage that both opposition and government politicians had to respond to. It was also easier to sign up victims in Japan by provisions allowing for claimants not to be identified. But several also made their identities and claims very public and indeed were foregrounded by their lawyers, both in and out of court – expanding their impact on the wider public discourse, as well as the victims’ legitimacy as “accidental activists” rather than party-political actors.
Arrington consequently found that the outcomes achieved in Japan were generally better than in Korea across the four main dimensions typically emphasised by victims, for similar types of largely contemporary claims against their respective governments, as summarised below (combining and adapting Tables 3.2, 4.2 and 5.3):
Redress movement Hansen’s disease HCV-tainted Blood North Korean abductions
Country Japan Korea Japan Korea Japan Korea
Official Inquiry 2 (full) 2 2 0 (none) 1 1
Apology 2 1 (partial) 2 0 0 1
Compensation etc 2 1 1 0 1 1
Institutional 2 1 2 1 2 1
Overall redress 8 (maximum) 5 7 1 4 4
The partial exception was for family members abducted by the North Korean government, much more frequently from South Korea than from Japan. Yet this was because even in Japan, the matter became very political early on, due significantly to Shinzo Abe (first when chief cabinet secretary in 2002 in the Koizumi Administration, less so when serving as prime minister for under a year over 2006-7, more so after regaining the prime ministership from 2012).
Arrington concludes (ch. 5) with three shorter case studies seen as supporting her broader thesis. For victims impacted by the Fukushima power plant meltdown and evacuations after the devastating earthquake and tsunami on 3 March 2011, “because politicians, bureaucrats, and the nuclear industry official took up the question of compensation so quickly after the disaster, redress claimants did not have the time or the impetus to build up broader social pressure specifically for comprehensive redress”, resulting in various compromises (p. 191). Rather similarly, “Korean political elites’ early involvement on questions of redress for victims’ families and fact-finding after the [2014 Sewol] ferry disaster politicized the issue to the extent that partisan bickering delayed and eventually watered down redress measures” (p. 193). Arrington further looks to France, another traditionally strong state where “the bureaucracy had historically been insulated from political and societal interference, and France’s legal opportunity structure was also relatively closed” (p. 196). Emphasising how an early partial political settlement regarding HIV-tainted blood supplies in 1989 led to escalating court filings, media appeals and bottom-up mobilisation (a la japonaise), she suggests that this case also “indicates that some degree of closure or blockage can encourage social movements to invest in grassroots mobilization (even belatedly), which heightens officeholders’ sense of political vulnerability and produces greater redress outcomes” (p. 198).
Overall, this book provides rich and convincing arguments and evidence that undermine simplistic rational-choice accounts of what drives society-state relations in countries like Japan and Korea, as well as over-generalisations about supposed shared “Asian values”. Rather, Arrington ably shows how we need to closely examine various complex, evolving and interacting institutions, as well as accidents of history and social agency – including the personalities and agendas of key victims, supporters and sometimes politicians. Her theory about how initial adversity in campaigns for redress can instead generate resilience, and eventually broader impact on society, fits well with emerging evidence from social psychology about human motivation. It also points to potential perils of politicising social issues too early, outside the fields of redress for victims, as we may have seen both in Japan and Korea with respect to the inclusion of investor-state dispute settlement provisions in free trade agreements and investment treaties – now unproductively split largely along partisan lines.
Focusing on litigation as an important tool for victims’ redress movements, perhaps there has been more role for lawsuits in Japan first because its legal system is relatively more permissive than Korea’s regarding state compensation claims. This is true compared to Australia, for example, and Japan’s more expansive “shadow of the (public) law” therefore helps to explain the quicker and more active response by the Japanese government to the 2011 disasters, compared to the Australian government’s responses to victims from asbestos products. Secondly, given that the HCV-tainted blood victims sued manufacturers as well as the government, it may be significant that Japan enacted (EU-style) strict product liability legislation in 1994, compared to 2000 in Korea, and Japanese courts subsequently developed quite pro-plaintiff case law. Thirdly, the greater role played by litigation is probably related to the longer tradition of cause lawyering in Japan, beginning with the big pollution claims in the 1960s (noted in passing by Arrington), when Korea still languished under military dictatorship. It would be interesting to trace in detail how individual Japanese lawyers, or their close associates, may have moved from assisting in one set of redress claims to another – related to environmental pollution, large-scale product failure, and eventually the three major case studies analysed by Arrington. It is striking, for example, that litigation was filed relating to Hansen’s disease policies and then HCV-tainted blood supplies in Kyushu, which had earlier been a key region for litigation (over the 1970s-1990s) relating to PCB-contaminated cooking oil, and earlier for the Minamata Bay mercury poisoning litigation. Fourthly, the history of large-scale claims under product liability law in Japan shows the importance of occasional prosecutions for criminal negligence causing death. This aspect may also differ in Korea, and thus help to explain the differences in victim redress movements and outcomes.
Finally, Arrington’s emphasis on the significant roles played by litigation in consolidating and expanding victims’ movements leaves questions as to current and future potential. In Japan, for example, there has been a significant increase in practising attorney numbers since the Justice System Reform Council reforms, including the establishment of new postgraduate Law School programs from 2004. On the one hand, this is aimed at – and many in fact promote – more access to justice overall. On the other hand, however, increased competition for jobs and work may make it financially more difficult to engage in the pro bono or cut-rate legal representation and advice provided by an earlier generation of cause lawyers. There is also the extra twist that as part of these justice system reforms, more lawyers are being allowed to work in and for government authorities, thus potentially diminishing the oppositional stance of Japanese lawyers as a whole. These matters also deserve empirical and theoretical inquiry, in comparison also with Korean trends.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.