MISSION OF THE PROJECT
This joint research project, including a broad range of
approaches, such as anthropology, law and peace studies, discusses ‘alternative
justice’ in Asia-Pacific and Africa. The theory and practice of alternative
dispute resolution (ADR) have expanded worldwide in the context of judicial
reform and legal transplant. Findings from the subject area’s legal culture
studies should be applied and examined carefully in the development of a
mediation model rooted in a local area (community-based ADR). In this project,
‘conflict’ is defined as a comprehensive concept that inclusively signifies
contention, dispute and disturbance (as per Prof. Masaji Chiba’s definition).
While discussions on ADR generally concentrate on the field of civil justice,
this research takes into account both restorative justice in the field of
criminal justice and other alternative approaches, such as non-violent
alternatives in the field of peacebuilding, as the wide-ranging targets of
‘alternative justice’ research. Furthermore, this research places its focus on
the practical models for ‘conflict transformation’, rather than focusing on the
discussions on the policy models for ‘conflict resolution’ or on the description
models for ‘conflict management’, and aims to examine and/or suggest some
practical proposals for the ‘transformation’ of various issues in conflicts
occurring in Asia-Pacific and African societies.
FOCAL
POINTS
‘Alternative justice’ is a
broad concept. It includes various alternatives to the modern, Western and
uniform system of law and order. Accordingly, this joint research on alternative
justice adopts relativistic and pluralistic methods and addresses various
subjects as follows.
1. Comparative, theoretical and empirical studies of
alternative justice in postcolonial Asia-Pacific and Africa.
2.
Influences of the official recognition of alternative justice on the new
development of legal pluralism in Asia-Pacific and African countries.
3.
Historical and ideological dimensions of alternative approaches in the various
fields of law and peacemaking.
4. Culture-conscious approaches in legal
transplant or legal technical assistance to Asia-Pacific and African
countries.
5. Peace culture and ideology in Asia-Pacific and African
communities.
6. Non-violent alternatives and conflict prevention in
multi-ethnic states of Asia-Pacific and Africa.
7. Conflict
transformation as a future-oriented project.
TERM OF
PROJECT
December 2007?March
2010
PROJECT LEADER
Shin-ichiro Ishida, Research Assistant Professor, Osaka University
Legal anthropology; Legal pluralism; African
law
PROJECT
MEMBERS
Rika Arai, Attorney at Law, Central Law Office, Tokyo
Japanese law; Legal profession in
Japan
Jun Baba, JSPS Research Fellow, Tokyo University of Foreign Studies
Social anthropology; Melanesian law
Claudia Ituarte-Lima, PhD Candidate, University College London
Legal anthropology; intellectual property rights and environmental law
Atsufumi Kato, JSPS Research Fellow, Nanzan University
Political anthropology; Vietnamese peasant
studies
Arinori Kawamura, Associate Professor, Japan Coast Guard Academy
Criminal procedure law; Sociology of law; Chinese law
Hideo Kubo, Assistant Professor, Kyoto Sangyo University
Sociology of law
Miharu Sono, Chief Researcher, Nord Institute for Society and Environment
Socio-legal studies; Law and sustainable development;
International legal studies
Sayaka Takano, PhD Candidate, University of Tokyo
Legal anthropology; Indonesian law
Rumi Umino, Lecturer, Ochanomizu University
Cultural anthropology; African
studies
Toru Yamada, PhD Candidate (ABD), University of Hawaii at Manoa
Legal anthropology; Zoning; Land use policy
RESEARCH ACTIVITIES
1. Research workshops at the Graduate School of Human Sciences, Osaka University
First workshop on 1-2 December 2007 (closed)
All
the participants, Self-introductions and proposals
Shin-ichiro Ishida,
‘Conflict transformation and community-based/alternative justice’
Open
discussion
Second workshop on 10-11 February 2008 (closed)
Jun
Baba, ‘Conflict transformation: an analysis of divorce cases in Manus, Papua New
Guinea’
Miharu Sono, ‘Towards the interdisciplinary joint research on
conflict transformation and alternative justice’
Atsufumi Kato, ‘Scenery
without righteousness: An essay on genealogy of harmony ideology in
Vietnam’
Third workshop on 20-21 March 2008 (closed)
Rumi
Umino, ‘Towards a study of the concept of “reconciliation” in the historical
context of South Africa’
Arinori Kawamura, ‘The research trend of restorative
justice theory and restorative justice practice in China’
Sayaka Takano, ‘The
skew concerning Law and its Alternatives: ADR and customary law/custom in
Indonesia’
Fourth workshop on 24-25 May 2008 (closed)
Rika
Arai, ‘Alternative justice in contemporary Japan: An analysis of dispute
settlements in divorce mediation’
Open discussion: ‘Alternative justice
research and the way forward’
Arinori Kawamura, ‘Transitional justice and
human rights research and law and anthropology education in Faculty of Law, K.U.
Leuven, Belgium’
Sayaka Takano, ‘Trends in conflict studies at George Mason
University’
Shin-ichiro Ishida, ‘Trends in Asian and African law education at
SOAS, London’
Fifth workshop on 28-29 June 2008 (closed)
Research meeting at the University of Tokyo
Sixth workshop on 4-5 October 2008 (open)
Paper presentations at Osaka University (See below)
Seventh workshop on 6-7 December 2008 (closed)
Paper presentations at the National Museum of Ethnology, Osaka (See below)
Eighth workshop on 24-25 January 2009 (closed)
Research meeting at the National Museum of Ethnology, Osaka
International workshop on 7-8 February 2009 (see below)
2.
International research networking
Three researchers visited overseas
universities to communicate and network with international researchers and
research arenas in February and March 2008. Both Shin-ichiro Ishida and Arinori
Kawamura visited the School of Oriental and African Studies, the University of
London, UK; Arinori Kawamura visited Katholieke Universiteit Leuven, Belgium;
and Sayaka Takano visited George Mason University, USA.
3. Publication
The achievements of the joint project will appear as journal articles,
book chapters and paper presentations at intra/international conferences.
A book-length preliminary report (in Japanese and English) will be co-authored
and published in March 2010.
INTERNATIONAL WORKSHOP
Understanding Alternative Justice in Transitional Societies: Truth and Reconciliation Commissions and Beyond
Programme
Workshop Day 1
Saturday, 7 Feb 2009
13:00-17:00
Room 106 (East School House), School of Human Sciences, Osaka University
Opening Address
Professor Eisei Kurimoto (Osaka University)
Introduction to the workshop
Shin-ichiro Ishida (Osaka University)
Arinori Kawamura (Japan Coast Guard Academy)
Session 1: The possibility of restorative justice in the South African Truth and Reconciliation Commission
Chair: Rumi Umino (Ochanomizu University)
Presenter: Professor Stephan Parmentier (Catholic University of Leuven)
Is Restorative Justice for Political Crimes Feasible? Lessons from South
Africa
Discussants: Arinori Kawamura, Sayaka Takano (University of Tokyo), Claudia Ituarte-Lima
(University College London), Shin-ichiro Ishida
Welcoming Party near the JR Ibaraki Railway Station
Workshop Day 2
Sunday, 8 Feb 2009
10:00-12:30
Room 106, School of Human Sciences, Osaka University
Session 2: Current trends in restorative justice practice and research in Belgium
Chair: Rumi Umino
Presenter: Professor Stephan Parmentier
Restorative Justice in Belgium: politics, policies and prospects
Discussants: Arinori Kawamura, Sayaka Takano, Claudia Ituarte-Lima, Shin-ichiro Ishida
SPECIAL LECTURE
Saturday, 20 June 2009
Room 105, School of Human Sciences, Osaka University
Coordinator: Atsufumi Kato
Roles of ritual in dispute mediation: A case study of reconciliation practices in village societies of East Timor
Shintaro Fukutake (Institute of Asian Cultures, Sophia University)
This paper based on an anthropological case study in East Timor reports the application of a traditional reconciliation ritual to a local justice process and its implications in contemporary village communities. At the time of the referendum over political independence from Indonesia and the post-referendum dispute (1999), local residents took initiative for reconciliation. The Timor?Leste Commission for Reception, Truth and Reconciliation (CAVR, the Portuguese acronym), which was established in order to facilitate national reconciliation, partly adopted the local residents’ initiatives for reconciliation at the community level. The process that dealt only with petty crimes such as beating and theft recognised methods implemented by the locals, such as dialogue, for resolving conflicts between victims and offenders. As indicated by the commission’s official emphasis on traditional methods of conflict resolution, disputing parties sat together, village elders conducted rituals and all participants ate together. Examining several cases of reconciliation practices between the people for and the two groups of people against independence, this paper elucidates several factors contributing to the success or failure of reconciliation and the meaning of traditional rituals from local perspectives.
PAPER PRESENTATIONS, DECEMBER 2007-MAY 2008
Conflict transformation: an analysis of divorce cases in
Manus, Papua New Guinea
Baba, Jun
This research presentation aims to
clarify ‘conflict transformation’ as an analytical concept/framework. First,
Baba examines the concept in the ethnographical contexts of Pacific societies.
Quoting the monographs of White and Watson-Gegeo, Baba suggests that the concept
is useful not only for describing the various stages of conflict processes but
also for capturing changes at several levels: alteration of personal and
interpersonal understandings; reformation of social relationships; reformulation
of tradition and custom; and the remaking of the social order. Secondly,
adopting the anthropology-based notion of ‘transformation’, Baba analyses
informal dispute management among the Kurti-speaking people in Manus Island,
Papua New Guinea. The case is derived from a dispute over divorce between Elly
and Luke, which was observed on 13 November 2003. This mediation, without law
and rule through which the dispute process is regulated and organised, undergoes
several transformations. Illustrating that the social world is created,
reproduced and/or changed in the process of reconciliation, this case study
shows the transformative nature of conflict.
Towards the
interdisciplinary joint research on conflict transformation and alternative
justice
Sono, Miharu
Examining historical backgrounds and theoretical
implications of ‘alternative justice’ in law, peace studies and other related
fields of research, Sono adopts a process approach that analyses various stages
of conflict development and avoids the methodological error of basing research
on simplified analogies. For example, alternative justice in a generalised sense
includes ‘conflict transformation’, ADR and ‘restorative justice’. Although
these categories are similar in some particulars, they each represent an
approach applicable only at a certain stage of conflict. Sono also examines the
various possibilities and challenges of interdisciplinary research based on
legal and anthropological points of view. Lastly, Sono notes that the legal
pluralism theories of professors Masaji Chiba and Nobuyuki Yasuda may be
introduced for a theoretical development of this project.
Scenery
without righteousness: An essay on genealogy of harmony ideology in
Vietnam
Kato, Atsufumi
This paper discusses plural dimensions of harmony ideology in Vietnam.
Analyzing formal discourses upon the village moot (to hoa giai), which
was introduced by the Vietnamese government to settle small-scale conflicts
within local communities, the author illustrates a formal/dominant variety
of harmony ideology. This kind of ‘harmony’ is achieved through self-help
and mutual cooperation and is based on the Vietnamese philosophy of righteousness
(nghia). Reviewing the classical works of Vietnamese philosophers such
as Bui Duong Lich and Duong Thu Huong, this paper focuses on an alternative
mode of harmony in local communities: People may resort to the alternative
framework to achieve a social distance from the normative order of nghia.
Accordingly, this paper argues that harmony ideology in Vietnam is not
monolithic but plural.
Towards a study of
the concept of ‘reconciliation’ in the historical context of South
Africa
Umino, Rumi
In the decade after the conclusion of the
activities of the Truth and Reconciliation Committee (TRC) in South Africa, its
methodology has been applied to conduct post-conflict resolution and to build a
bridge to the peacebuilding process. At the same time, the interest of South
African people towards TRC is diminishing as they feel that the argument has
been thorough and is history by now.
With some consideration to the people’s
recent indifference to TRC in South Africa, Umino examines the impact of TRC on
South African society. In this paper, the author first outlines the
history/genealogy of anthropology in South Africa. Then, she points outs a
conspiracy between the law and regime and the anthropology in South Africa. For
further research, it is suggested that the concept of 'reconciliation' shall be
examined in the historical context of South Africa in the twentieth
century.
The research trend of restorative justice theory and
restorative justice practice in China
Kawamura, Arinori
Kawamura reviews current trends in restorative justice research in Japan
and clarifies theoretical and practical questions in the subject and the
present joint research project. His case study of traffic accidents in
contemporary China examines in detail the various socio-legal contexts
of si liao, the private settlement of crime. Reviewing the previous works
of Chinese legal researchers assuming that si liao represents an indigenous
variety of restorative justice in contemporary China, Kawamura emphasises
the importance of examining the socio-cultural basis or the legal postulate
of si liao in Chinese legal culture.
The skew concerning law and its alternatives:
ADR and customary law/custom in Indonesia
Takano, Sayaka
ADR is now
regarded as one of the major issues in the legal reformation process in
Indonesia, leading to the re-evaluation of adat. The Indonesian word adat is
generally translated as ‘custom’, although its meaning can be broad enough to
include other concepts such as culture, tradition or ritual. The existing
Indonesian legal system is based on laws formed in the Dutch colonial era, which
is no longer considered appropriate. It is said that adat is more widely
accepted as a justifiable set of rules and should be fully used as a legal
resource. This presentation focuses on two topics: the adat revivalism movement
underway in post-Suharto Indonesia and the history of the concepts of adat
(custom, customary law) and hukum (national law). Through these topics, the skew
in the concepts concerned with law have become clear. The Indonesian word ‘adat’
has been considered the Indonesian equivalent of ‘local knowledge’ or ‘legal
culture’, which are supposed to be taken into account in foreign legal aid.
However, adat does not necessarily correspond to these concepts, making
international cooperation more complicated. Adat is often referred to as the
alternative to the existing legal system, but its conceptual history and present
implication demands close attention.
Alternative justice in Japan:
Dispute resolution in a divorce mediation
Arai, Rika
The Act on
Promotion of Use of Alternative Dispute Resolution (Act No. 151 of 2004)
reflects the expanding needs of various alternative approaches of dispute
processing in Japan. From this point of view, Arai examines current trends in
ADR (conditions of the certification system, etc.) in Japan. Comparing the newly
introduced framework of ADR with the traditional methods of divorce mediation in
the Japanese judiciary, Arai assesses the prospects of and the way forward for
ADR as a new forum of dispute resolution based on ‘dialogue’ between parties.
Arai also focuses on the conditions of ‘legal disputes’ that can be handled
within ADR as well as the expected roles of legal professions in
ADR.
PAPER PRESENTATIONS, OCTOBER-DECEMBER 2008
Alternative justice in Modern Kenya: ‘Generalised reconciliation’ and ‘restricted reconciliation’
Shin-ichiro Ishida
The broadly defined justice, whose ultimate goal is a fair society in which both the trust in the society and the accountability of the society is realized (in such justice, the ‘alternative’ demands social reform in a broad sense), is in an urgent need for development in modern Kenya, where a serious political conflict erupted involving the results of the presidential election returns. Such justice shall also include technical justice in which the purpose is to resolve individual disputes and establish settlements (in such justice, the ‘alternative’ demands institutional or judicial reform). This paper (1) compares the ‘truth commission’ that is currently being developed in Kenya with prior cases in South Africa, and (2) further explains the ‘Truth Commission’ in Kenya by referring to the theoretical framework of alternative justice. In this discussion, the framework of the hypotheses on ‘generalised reconciliation’ and ‘restricted reconciliation’ is presented with reference to and as a discussion built upon the social reconciliation theory proposed by Toshihiro Abe in his book, Facing the Post-Conflict Society: The Truth and Reconciliation Commission in South Africa (Kyoto University Press, 2007). The goal of this paper, through the presentation of the above two reconciliation frameworks, is to discuss alternative justice as a comprehensive approach bridges across anthropology, legal studies and peace research, apart from the official laws and judicial systems that hearken back to the colonial period.
Scenery without righteousness: The other genealogy of reconciliatory view in Vietnam
Atsufumi Kato
This paper discusses the multiplicity of the reconciliatory view in Vietnam. Vietnam has what is called ‘To Hoa Giai’, a local mediation system for small-scale disputes, which is attracting attention from other parts of Vietnam and other countries as a system for alternative dispute resolution (ADR). The virtue of this system is often explained as the ‘reconciliation through mutual assistance’ in Vietnam. However, in this paper, the system shall be called the reconciliatory view based on ‘righteousness’, in light of historic Vietnamese thought. This reconciliatory view based on ‘righteousness’ is also an ideology that enforces affirmation of mutual concessions, patience, mutual surveillance and so forth on the residents.
On the other hand, the latter part of this paper presents a genealogy of the other reconciliatory view, which contrasts with the reconciliatory view based on ‘righteousness’: the genealogy of the reconciliatory view based on ‘Chi’. As case studies, depictions of scenes from the topographic literature ‘Nghe an ki’ by Bui Duong Lich, a Confucianist scholar at the end of the 18th century, and from the novel ‘Nhung thien duong mu (English title: “Paradise of the Blind”)’, published in the late 1980s in the midst of socialist reform are analyzed.
This paper intends to point out that the image of an ideal reconciliation is potentially multitudinous, and that these images tend to exist in mutually criticising, strained relationships. This perspective shall, upon the institutionalisation of the ‘To Hoa Giai’ as one (alternative) justice, promise the possibility of further ‘alternative’ criticisms directed at the institutionalised justice.
The laws and their alternatives in the judicial reform in Indonesia: The development of alternative dispute resolution and the position of adat (Indonesian customary law)
Sayaka Takano
While ADR, which evolved as a collective term including reconciliation, arbitration and negotiation, is extensively developing in the world, traditional organisations or customary laws for dispute resolution are being re-valued. ADR is one of the focal themes of the judicial reform in Indonesia. Dispute resolution by means of an agreement between the interested parties does not indicate an undesirable condition where judicial systems are insufficient, but are rather a situation that should be promoted. The adat (customary law), the ‘living law’ that is shared among the people of Indonesia is referred to as the cornerstone of ADR. What type of concept is adat and what influence does it retain? In present-day Indonesia, adat is deemed as a substitute to law and offers a reconciliatory image. However, in reality, it is a versatile concept that, as proven through history, also has the possibility of national secession, and limited in its content as a concrete rule. This paper focuses on this point and discusses alternative justice in Post-Suharto Indonesia.
Judicial policies and societal research: Historical progress of the ADR movement
Hideo Kubo
Today, ADR has drawn worldwide attention as a political means for the judicial reform. The definitive momentum that brought about the global distribution of ADR is the ADR movement that emerged in the late 1970s in the U.S. The movement then spread across the nation through the ‘judicial policies’ of the Burger Court, and is currently exported to other parts of the globalising world as a part of the international strategy of the U.S.
However, ADR was originally a legal practice in the Asian and African regions. It has been ‘discovered’ in the ‘social research’ by scholars in the fields of legal anthropology and sociology of law and imported to the U.S. Now, on the other hand, it is being exported to the Asian and African regions. In addition, the ‘social research’ of the scholars that facilitated the initial ADR movement has now turned against the present ‘judicial policies’, emphasising the problems with the current policies.
This paper focuses on the transition and the twists in the relationship of such ‘judicial policies’ and ‘social research’, and traces the historical progress of the ADR movement.
Settlements in criminal cases and the legal culture of China
Arinori Kawamura
The general theme of the 2008 Annual Meeting of the Law and Society Association held in June in Montreal was ‘Placing Law’, where projects related to and based on the question of what happens in the process of law, given this globalising world, when it crosses national borders, were organised. Taking the British society as an example, in order to relieve the suppression the immigrants in the U.K. are feeling, and based on the recognition that it is important for all immigrant societies to be able to participate in public procedures, the partial introduction of the Islamic Sharia into the British judiciary system is stirring up great controversy. Similarly, in the establishment of legal control in China, it is considered important to focus on the customs and social rules of the people in the Chinese society in relation to the introduction of Western European law. It is understood that law is only approved by the people, and thus becomes functional after it is associated with the local wisdom rooted in the daily life. Furthermore, upon understanding such ‘homeland resources’, the dialogue between the laws received from Western Europe and local laws is important.
This report observes the settlement of criminal cases in China and the legal culture involved, by tracing the way of laws in present-day Chinese society, which is a combination of imported Western European laws, indigenous laws developed in China, and the socialist law received from the former Soviet Union.
Where the truth lies: The Truth and Reconciliation Commission in South Africa and the subsequent situation
Rumi Umino
Where the ‘truth’ lies in post-Apartheid South Africa is considered to have been influenced by the way the ‘truths’ were exposed at the Truth and Reconciliation Commission (TRC). Incidents that were concealed and previously unspoken of were publicised and such disclosure of ‘truths’ through narration was conducted at the TRC. Therefore, the question is as follows. How do the ‘truths’ from the TRC and the methods of exposure still influence present-day South Africa?
First, this paper examines where the truth exists from the specific reference cases and how they are told, beginning with the final reports of the TRC and over viewing the TRC. The activities of organisations such as the Institute for Justice and Reconciliation, as a TRC survival in the present-day South African society, and motion picture films based on the aftermath of TRC debates are also introduced. This is a preliminary paper by the author who aims to clarify the positioning of the TRC in the South African society and its history, and thus reserves the final conclusion.
PAPER PRESENTATIONS, APRIL-JULY 2009
The significance of the legal pluralism in modern laws (theory) and the Yasuda Theory: Conceptualizing the theory and practice of ‘alternative justice’
Miharu Sono
It is quite important to re-evaluate the works of Professor Nobuyuki Yasuda, who is a pioneer in the theory of law and development in Japan, when analyzing the effects of the reorganization of alternative dispute resolution (ADR) on traditional legal pluralism in various Asian and African countries and when exploring the possibilities for the theory of alternative justice and its actualization. The theory of law and development put forward by Professor Yasuda was developed from a critical standpoint for both the New Law and Development Movement (NLDM) that led to the present day legislative support movement and the theory of legal pluralism as well as an attempt to focus on actualization in terms of legal policies. In addition, the movement surrounding the international re-evaluation of ADR, especially at the community level, is perceived as a phenomenon of re-autonomization in communal societies.
This paper shall re-evaluate the Yasuda Theory by taking the reorganization of the legal pluralism in modern laws into consideration and re-examining the legal pluralism discussion from a theoretical viewpoint, and also by seeking a course of action for the theorization and actualization of alternative justice.
Groping around with alternative justice in Papua New Guinea: A case study
of the restoration process after the Bougainville Dispute
Jun Baba
Bougainville Island and Buka Island in the southwest of the Pacific Ocean
are part of the Solomon Islands; however, because of the colonial divisions
made by the major European powers, these islands now belong to Papua New
Guinea (hereinafter referred to as ‘PNG’). After the late 1960s, the exploitation
of mineral resources (bronze and gold) was carried out in Panguna of Bougainville
Island, which benefited the country’s economy. Disputes amongst the islanders
in 1988 over the rich mineral resources developed into a separatist movement,
which apparently turned into a civil war when the PNG Defence Forces got
involved. Although this civil war came to an end with the establishment
of an autonomous government in June 2005, the extent of physical and mental
damage inflicted on the civilians during this period, especially in the
1990s, was inscrutable. This paper focuses on the activities by the women
and Peace Foundation Melanesia (an NGO) to shed light on the characteristics
of the restoration process in Bougainville Island and also to consider
one of the ways for alternative justice.
Japan’s alternative dispute resolution and time
Rika Arai
‘Techniques’ of arbitration and alternative dispute resolution (the techniques that are not considered in the early definition of ‘trial’) are often assumed to require discussion with the concerned parties and also intervention by the third parties. This implies that a large amount of time is needed for dispute resolution. Therefore, trial (i.e., dispute resolution) requires considerable time and is looked upon as a hitherto problem in Japan. As a result, various approaches have been carried out (for example, dramatic improvements to the civil suit law) in order to achieve speedy trials. While easier and faster means of dispute resolution are being introduced, there are also calls for more thorough albeit time-consuming arbitration and the establishment of the ADR system. Hence, there is a conflict between these directions. This is probably an endorsement for the citizens’ demand for ‘diversity in the choices for dispute resolution techniques’. In the first place, where did the implication that ‘time is spent/not spent in dispute resolution’ originate? The author analyses the methods of dispute resolution in Japan to date, and from the practitioners’ point of view discovers how the concept of the ‘flow of time’ works in dispute resolution.
Legal mechanisms for environmental justice and intellectual property governance
Claudia Ituarte-Lima
Environmental justice and more equitable relations in the knowledge economy constitute common concerns for many people around the world. Hence an informed discussion about these concerns is needed, which includes stakeholders with both western and non western viewpoints. It remains a challenge to translate abstract legal notions to practice, for example “just benefit sharing” from the use of peoples’ biodiversity knowledge. In 2002, Peru through Law 27811 established a legal regime for the protection of indigenous peoples’ collective knowledge related to biodiversity. The regime’s objective is to provide “fair and equitable distribution of the benefits derived from the use of collective knowledge”. This paper analyses the Peruvian Law 27811 and critical events which crisscross institutions and prompt new ways of thinking thereby creating sui generis intellectual property rights (IPRs). Specifically, in the paper it is attempted to understand the reasons why people advocate or oppose agreements with IPR implications. The literature tends to polarize between the individual (Western) and collective (indigenous). In contrast, this paper proposes the analytical strategy of a continuum of the multiple holders of dimensions of IPR and of the nature of the resources owned. The paper shows that the main issues in the development of legal mechanisms for environmental justice and intellectual property governance revolve around who is legally recognised as an owner, what it is the nature of the resource owned and what are the means for effectively exercising rights and responsibilities associated with IPR. Regarding conflicts and tensions between the parties, often their negative dimension is highlighted. However, the empirical research in this paper has revealed not only negative dimensions but also the constructive possibilities of conflicts once they are there in terms of socio-legal innovation. Here previously unrelated facts are connected, which are associated with critical events linked to Law 27811. Moreover, the paper places this Law in a wider context of international current discussions in environmental law and policy thereby contributing to the development of alternative mechanisms for environmental justice in local and global arenas.
Space for Alternative Justice: Locating Academia in Alternative Dispute Resolution
Toru Yamada
On March 2, 2006, a group of native Hawaiian activists and their supporters rallied at the University of Hawaii to protest the university’s action of patenting three kinds of hybrid taro cultivars. Because of the cultural significance of taro in native Hawaiian tradition and current global movements in opposition bioengineering, the protest at the University of Hawaii received worldwide attention. On one side, the protesters criticized the university for being culturally insensitive to the native Hawaiian tradition, and expressed alarm over treating a life form (in this case, three kinds of hybrid taro plants) as private intellectual property. On the other side, the university officials and researchers defended their bioengineering research and patenting of the plants as a better way to protect the plants from commercially-driven big corporations. Throughout the dispute, university officials presented the university as an alternative to possible commercial exploitation and dispute. In this paper, I will examine how the university officials explained their rational on bioprospecting and patenting as a better alternative to commercial patenting.
RELATED WORKS AND
PUBLICATIONS
Baba, Jun
2005
Local people, legal pluralism: A critical inquiry into Chiba theory from the
case of Papua New Guinea. Chiba Theory Reconsidered: Anthropological
perspectives, 8-29. [Japanese]
2005 Wives’ rhetorical works: Gender and
family maintenance in Papua New Guinea. In Nobuko, H. and The Institute of
Comparative Economic Studies (eds.), Market and Gender: Theory, Positivism, and
Culture, pp. 315-344. Tokyo: Hosei University Press. [Japanese]
2006
Recapturing ‘behavior’: An ethnographic analysis of Pala Soue ritual in the
Kurti Society, Papua New Guinea. The Sociology of Law 65: 34-53.
[Japanese]
2007 Notes on anthropological approach toward state law in Papua
New Guinea. JSOS Newsletter 87:13-22. [Japanese]
2007 Colonialism, gender and
socio-economic change: A case study of legal action for family maintenance in
Papua New Guinea.” Journal of International Economic Studies 21:53-68.
2008
Women, law, and power: A case study of maintenance action in Papua New Guinea.”
In Mitsuki, S. (ed.), Knowledge and Power in Oceania. Chiba: Institute of
Economics in Asia. [Japanese]
Ishida, Shin-ichiro
2002 Remembering
marriage in the courtroom: Analysis of burial cases among the Gusii of Western
Kenya. Japanese journal of ethnology 67(2): 137-157. [Japanese]
2003 Facing
regional culture in a popular justice programme: On Lederach theory in the New
Guinea Highlands. The sociology of law 59: 193-208. [Japanese]
2003
Grassroots dispute management in Kenya. In Miyamoto, M. ed. Managing conflict:
Anthropological points of view. Yuzankaku. [Japanese]
2006 Formal and
substantial arguments in the courtroom: A review of Masaji Chiba’s theory of
legal pluralism. The sociology of law 64: 200-224. [Japanese]
2007 ADR and
Mennonite: A new development of legal pluralism in Asia and Africa. Horitsu Jiho
79(12): 120-126. [Japanese]
2008 Community development in Kenya.
Kikan-minzokugaku 123: 44-59. [Japanese]
2008 (co-edited with N. Gichere) The
indigenous knowledge of the Ameru of Kenya. Revised second edition. Meru Museum
(National Museums of Kenya). [English]
2008 (co-edited with Matsuzono, M. and
H. Nawata) Human development in Africa. Akashi Shoten. [Japanese]
2008 The
indigenous law of the Igembe of Kenya: An anthropological study. In Miyamoto, M.
ed. Conflict management and legal pluralism: Studies in local societies of
South-East Asia and East Africa. Chuo University. [English]
2008 Legal
pluralism and human rights in a Kenyan court: An analysis of ‘dowry’ claim
cases. Paper presented at the Law and Society Association conference at
Montreal, 30 May 2008 [English]
Ituarte, Claudia
2004 Traditional Knowledge of Biodiversity and the Rights of Indigenous
Peoples. in Report of the 2nd International Meeting on Environmental Law,
Mexico City: United Nations Environmental Program (UNEP), National Autonomous
University (UNAM), National Environmental Institute (INE) and the National
Lawyer’s Bar. [Spanish]
2004 The Progressive Development of Human Rights in the Interamerican System,
Indigenous Peoples and the Environment’ in Guevara Bermudez Jose Antonio,
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