Which Law Conserves Nature Better?
〜A comparison of nature conservation law in Japan andthat in the United Kingdom〜

1. Introduction
Nature conservation laws, the laws that aim specifically to protect plants,
animals, natural habitats, has become a popular subject in recent years accompanied
by increasing interest in all things connected with decline in and loss of the naturalenvironment.

According to Thornton and Beckwith, the term “nature conservation”

encompasses the idea of maintaining the existence and welfare of animals and plants,
and the idea of preserving and enhancing their natural and man-made habitats.1
Species and habitats are valued for many reasons such as: scientific study; aesthetic
or cultural grounds; economic and social benefits. This idea was clearly addressed in
the Convention on Biological Diversity (CBD) 19922.

After the CBD, party states

are more concerned with nature conservation, and each nation has now included theidea in the national policy in compliance with the obligation of the CBD 3 .
Accordingly, nature conservation is now one of the most important areas of thegovernments’ policy-making among developed countries.
The legal system for the conservation, however, seems to be unsatisfactory
not only in developing countries, but also in many developed countries.

Since tofind space for species and habitats often clashes with other social interests likeeconomic development and respect for private property, and since policy-making
1often emphasises other national strategies and national finance, it is always difficult
to achieve a sufficient level of nature conservation.

Although both the UK andJapan have put in place much nature conservation legislation, it seems that both have
not yet achieved the sufficient condition.

By comparison, Japan seems to be lagging

behind the UK in terms of legislation on conservation of habitat and species.

Japan,

in particular, has a serious obstacle in the policy-making process: the demand on
economic development and specific political structure.

This paper will compare thenature conservation laws, by focusing on laws for conservation of habitat and species,in the UK and those in Japan, and then explain such political problems in Japan.

2. Basic laws and legal systems in the UK and Japan
Since the UK and Japan have different legal systems4 and, of course, totallydifferent historical backgrounds, the main legal approaches to nature conservation are
different.

However, there are some similarities in the legal system of nature

conservation which we are going to see later in specific laws.
The beginning of the modern age of nature conservation in the UK can betraced to mid 1940s, evidenced by the publication of an influential report, the Huxleyreport5, which forms the basis of the nature conservation policy today.
2The principle source of UK legislation on nature conservation is the Wildlife andCountryside Act 1981, as amended by the Countryside and Rights of Way Act 2000.
The main protection for wildlife creatures is by statute since the common law isgenerally unsympathetic to wild creatures.

Also, the approach underlying nature

conservation legislation in the UK has been based upon co-operation with landowners
and upon voluntary agreements made with them.6
It is important to note that the UK is under the influence of the EU laws.
The Birds Directive and the Habitat Directive constitute the main legislative activityof the EU on nature conservation.

In Japan, the concept of environment laws first appeared in the latter half of the
1960s. Before the enactment of Basic Environment law, Japanese environmental
policies were based on two fundamental laws: the Basic Law for Environmental
Pollution Control (1967), and the Nature Conservation Law (1972).

In Japan,

prevention of pollution became an urgent topic due to the serious pollution problems
accompanying the rapid industrial development.

Therefore, Japan has been

relatively successful in domestic pollution abatement policy and energy efficiency,
while it has not generally been successful in the nature conservation policy.7
3

At the present time, the basic rule of environmental protection is provided in the
Basic Environment Law (1993).

There are three other more detailed nature

conservation laws: the Natural Parks Law; the Nature Conservation Law; and the
Wildlife Protection and Hunting Law.

3. Specific laws aiming to protect nature
There are broadly two methods of conserving biodiversity: conservation of
habitats and that of species.

So, let us go through these two types of legislations

in both countries.

(2) Laws for conservation of habitatsa. Land designation

In nature conservation, it is necessary to protect an animal’s habitat as well as
the animal itself because animals cannot survive without appropriate habitats toprovide food and shelter.

Indeed, the main threat to most species is the loss of

their habitats, rather than direct persecution.8 Therefore, both the UK and Japan
have placed relatively important legal regulation on conservation of habitats.

4

Habitat protection in both the UK and Japan is based upon the designation of theareas of land considered worthy of a higher level of protection.

The main forms of site designation in the UK are “Sites of Special ScientificInterest” (SSSI) and “European Sites”.

SSSIs are designated by English Nature,

Scottish Natural Heritage, or Countryside Council for Wales (all together: nature
conservation agencies) for each regions9. There are over 6,700 SSSIs in the UK,
covering around 7% of the country’s land area, amounting to over 2,320,000
hectares. Approximately 70% of SSSI land has been identified as European
sites.10

Whereas in Japan, the main forms of protection is to designate land, under the
Nature Conservation Law, by dividing into three types of sites according to theconditions of the areas: Wilderness Areas11, Nature Conservation Areas12 andPrefectural Nature Conservation Areas13. They are administrated by both the
Ministry of the Environment and each prefecture.

The number and the width are

shown in the table below. The total protected area is only around 4% of thecountry’s land area, which is around 101,000 hectares.

5

Number

Area (ha)Wilderness Area

5

5,631

Nature Conservation Area

10

21,593Prefectural Nature Conservation Area

528

73,863

Total

543

101,087

Source: Ministry of the Environment of Japan, As of March 31, 1995

b. National Parks

Interestingly, the UK and Japan have very similar legislation for the National
Parks. In the UK, National Parks and Access to Countryside Act 1949 provides forthe designation of the National Parks and the Areas of Outstanding Natural Beauty,
which, in total, cover 23.2% of the land.

In Japan, Natural Parks Law (1957)14(NPL) sets three types of designation: National Park, Quasi-National Park andPrefectural National Park.

The total protected land under the NPL amounts to

15.4% of the land. Both countries’ National Parks consist of national land and private
land, which is a rare system in the world.

c. Examination

According to OECD’s cross-national comparison of number of protected areas forwildlife, which uses a different standard to the figure above, there are 153 protectedareas in the UK, covering 20.4%of the land, while Japan has only 65 areas, which6cover 6.8% of the land.15

There are, in this standard particularly, several reasons why Japan falls back inprotecting natural areas.

Firstly, there is a significant difference between the two

designation systems, the ownership of the lands.

In Japan, all the designated areas

under the Nature Conservation Law have to be nationally owned, while two-thirds of
SSSIs in the UK are privately owned.
to be designated.

Accordingly, the UK has more potential area

Secondly, in Japan the Nature Conservation Law requires manyother strict conditions to be met.

For example, more than 1,000 hectares of thewidth is required as the Wilderness Area, and it should not be influenced by any
human activity.16 Thirdly, the role of the Nature Conservation Law was restrictedfrom the beginning due to very complicated relations with Natural Parks Law.
Namely, the scope of the Natural Conservation Law is limited as if it is included
inside that of the Natural Parks Law. To make matters worse, its scope is decreasing
even more because of the enactment of the superior Basic Environment Law.

However, it cannot be said with absolute certainty that the SSSI system in the UK
is superior.

The protection provided by SSSI designation came to be seen as

notoriously inadequate, with high levels of damage and destruction occurring to sites.

7

In fact, over one-fifth of SSSIs in England suffered loss and damage between 1987
and 199317, and there is a significant increase in the percentage of sites whose
condition is identified as unfavourable, declining or destroyed18. The figure below
shows the present condition of SSSIs in England.

In the old regime prior to the amendment by the CROWA 2000, as the nature
conservation agencies work with over 30,000 separate land owners and managers, theagencies could only suspend, not prohibit operations with the potential to damage asite.

Besides, penalties for breach of the regime were low.

In short, the effect of all

this was that habitat conservation was only achievable where land owners co-operated
with the nature conservation agencies.

Critics argued that this system of voluntary8control allowed too much weight to be given to the private interests of landowners19.

As a result, in England and Wales20, the CROWA 2000 has shifted the policyof the law from voluntarism to regulated site management.

The nature conservation

agencies now have greater powers to ban adverse activities and to require positive
management.21 In addition, nature conservation agencies’ power to enter land toinvestigate has been greatly increased.

Although Bell and McGillivary says that the

CROWA 2000 does not appear to herald a radical change in realigning the balance
between the interests of private landowners and of the public in conserving nature22,
it is likely that the condition of the SSSIs will improve and that more species andtheir habitats will be protected in the UK.

(2) The Conservation of species

While conservation of habitats is the central method to protect animals andplants, there are, in both the UK and Japan, legislations that focus on conservation ofwild species by protecting them regardless of whether they are inside the habitat
protection areas.

The quality of the legal system for species conservation seems to

be much more advanced in the UK. Notably, before the Birds Directive was enacted

9

in the EU in 197923, the UK had much greater protection for birds than any other
European countries.
In the UK, the main provisions relating to the conservation of species are to
be found in the Wildlife and Countryside Act 1981 (WCA), as amended by theConservation (Natural Habitats etc.) Regulations 1994 and the CROWA 2000.

Also,

EU Law, the Birds Directive and the Habitats Directive in particular, havesuccessfully influenced the UK’s legislation.
The WCA1981 provides the strongest protection of any British legislation.
Species listed in Schedule 5 of the Act are protected from disturbance, injury,
intentional destruction or sale. Other provisions outlaw certain methods of taking or
killing listed species. The WCA is brought up to date regularly to ensure the mostendangered animals.
The approaches to species conservation in Part 1 of the WCA 1981, and therelevant provisions in Habitats Regulations contain numerous criminal offenses.

For

example, as for wild birds, it is an offense:24-

intentionally to kill, injure or take any wild bird;-

intentionally to take, damage, or destroy a nest whilst it is in use or
being built;
10-intentionally to take or destroy eggs;-

to be in possession of a wild bird or egg (live or dead).

As for animals and plants, there is a range of offences similar to those for wild birds,
although they are covered by the Act only if specifically listed in the Schedules. Still,there are over 300 animals and plants listed in the Schedules, and the number ofprotected species has been increased to around 1,000 by other Regulations25.
The Japanese wildlife protection system provides for the conservation of
wildlife by enforcing the Wildlife Protection and Hunting Law (WPHL) and the Law
for Conservation of Endangered Species of Wild Fauna and Flora (LCESWFF).
Under the WPHL, more than 600 species of wild mammals and birds inhabiting
Japan are protected and hunting or capturing them is prohibited unless permission
and/or a license have been granted from wildlife protection authorities. Also, theMinistry of the Environment and the prefectural governor are empowered to establish
Wildlife Protection Areas and Wildlife Special Protection Areas to promote
protection of the wildlife species and their habitats. There are over 4,500 designatedareas.26
The LCESWFF provides special protection with endangered species bydesignation, but it has been criticized that it provides “far less protection than is11

expected” 27 .

The reason for this, according to Hatakeyama, is the lack ofdesignated species and the protection areas. Although there are 1567 species28 listedon the “Red Data Book in Japan” 29 , only 62 species have been designated as
Domestic Endangered Species, which can receive special protection under the law,and only 6 Natural Habitat Conservation Areas (totaling 860.28 ha) have been
designated by 1998.30
As a result of the poor protection system, significantly large number of
species have been endangered and made extinct in Japan.

Approximately one

quarter of the number of animal species in Japan are endangered31. In comparison
with the UK’s provisions, there are far fewer protected species and lower standards ofprotection in Japan. However, it should be born in mind that, in both countries, themain legislations set out only to protect the endangered species, not the habitat or the
species if it is not endangered (except for the wild birds and other specificallyprotected animals in the UK).

Therefore, a stricter protection by advanced

legislation, just as how wild birds are protected in the UK, is required for more
species in both countries.

124. The specific problems in JapanAs we have seen, Japan has not been performing as well as the UK in nature
conservation. In fact, Japan appears to have a poor record on nature conservation andnumber of wildlife conservation issues compared to other OECD countries 32 .
Therefore, there are strong criticisms pointing out that Japan’s policy is failing in
relation to domestic and global wildlife preservation.

There are many reasons why

there is little practical action by the government, and many of those are intricately
connected with fundamental problems in Japanese politics.
Most importantly, it can be said that Japan’s environmental problems areintegrally linked with its economic growth, and how that economic growth isachieved, as Barrett and Therivel point out.33

There has been a strong desire forindustrialisation and economic development in Japan nation-wide since the end of theWorld War Ⅱ.

Despite a growing concern about nature conservation among the

public in recent times, the conservative Liberal Democratic Party (LDP) 34 andJapanese policy-makers are still weighted towards big business and the economic
growth.

Brazil, in a study about Japanese attitudes to nature notes that in Japan, “thecurrent emphasis lies in nature to be exploited.
often an economic one”35.
13

Wildlife is thought of as a resource,Furthermore, it has been said that Japanese policy-making is “highly elitist,
dominated by a ruling triumvirate of the leading politicians in the LDP, seniorbureaucrats within economic ministries and agencies, and the senior ranks within thepeak associations of big business”36.

This triumviral structure, a classical style ofJapanese policy-making, is often referred to as the power-elite model.

As a matterof course, this old-fashioned regime has affected Japan’s record in nature
conservation.

For instance, the environmental NGOs (ENGOs) have been

marginalised and excluded from the policy process by the conservative LDP.
Danaher describes that “Since Japan’s responses to CITES and Ramsar Convention
are criticised, it implies that Japanese ENGOs are politically out-manoeuvred bydomestic policy actors and structural impediments”.37 As a matter of fact, there has
been little opportunity set for the public to take part in policy-making under nature
conservation laws.38
In short, Japan’s poor record on environmental management, particularly
nature conservation, could partly be an outcome of the deliberately made policies
resulting from policy-makers’ intentions which excessively emphasise economic
growth and of the strict power-elite model. Whereas the UK deserves appreciationthat the government, from the beginning of the nature conservation policy-making,14

clearly addressed in the Huxley report that nature conservation should be theresponsibility of central government.39

5. Conclusion
To compare the legislations on nature conservation in the UK and Japan, thispaper has mainly seen two types of nature conservation laws: legislations forconservation of habitats and those for conservation of species.

It seems that legal

regulation for nature conservation is more advanced in the UK as a whole (although
there are many aspects that require improvement in the UK as well).

However, there are various ways to conserve wild life, and there are manyother legislation and policies, such as planning control and an environmental impact
assessment system.

Thus, strictly speaking, since the legislations which we haveseen are only a part of them, we cannot determine which country conserves wild life
and the natural environment better without taking everything into account.
is difficult to compare different legal systems and different approaches.

Also, itAt least we

can be sure that Japan falls behind the UK on nature conservation policies for the15

main part.

In fact, it has been criticised that Japan has lagged behind other OECD

countries in terms of environmental policy-making especially on wild life
protection.40 Japan is still influenced by an old political structure and it is unlikelythat there will be any significant change unless drastic reform in political structure
and policy-making process occurs.

Nature conservation is an urgent matter inmaintaining a healthy environment and ensuring the survival of human beings.
Therefore, such reform is an indispensable duty for Japan as one of the developed
countries.

The UK, on the other hand, as a leading country for nature conservation,is required to develop its nature conservation law so as to make model legislation forother countries.

16

End notes:
1
2

Thornton and Beckwith, p.245
Preamble of the Convention on Biological diversity(1992) states:“Conscious of the intrinsic value of biological diversity and of the ecological,
genetic, social, economic, scientific, educational, cultural, recreational and aesthetic
values of biological diversity and its components, Conscious also of the importanceof biological diversity for evolution and for maintaining life sustaining systems of thebiosphere”.
3

See Article 6 of the CBD
Legal system of Japan is classified in continental law system, and that of the UK is in common
law system.
5
The “Huxley Committee report; Cmd 7122
In 1947, a special committee of the House of Lords, the Huxley committee, reported on nature
conservation, many of whose recommendations were accepted and acted upon.
6
Thornton and Beckwith, p.247
7Danaher, p.3
8Thornton and Beckwith, p.254
9The administration was once responsibility of the Nature Conservancy Council before divided
between national agencies.
10
DEFRA
11
Wilderness Areas are areas that preserve and maintain the original ecosystem and that are freeof human influence.
12
Nature Conservation Areas are natural areas that preserve and maintain the certain natural
ecosystems.
13
Prefectural Nature Conservation Areas are areas other than marine areas that preserve andmaintain valuable natural environment at the prefectural level.
14
The latest amendment was in 2002.
15
OECD, 1999, p.143
16
The Nature Conservation Law, Art. 14
17
Protecting and Managing Sites of Special Scientific Interest (National Audit Office, 1994)
18
Annual reports of English Nature between 1996-97 and 2000-01
19
For example, Thornton and Beckwith describe the weaknesses of the SSSI system briefly as“failings of the old regime”. (Thornton and Beckwith, pp.255-256)
20
The CROWA only applies to England and Wales because SSSI is a devolved matter.
21
Bell and McGillivary, p.814
22Bell and McGillivary, p.824
23
Thornton and Beckwith, p.250
24
The WCA 1981, ss.1 (1) and (2)25For example, see Annex 1 and 2 of the Habitat Directive
26
The Ministry of the Environment, 1998
27
Hatakeyama, p.269
28
As of 2003. White paper on environment in 2003, p.187.
29
Published by the Ministry of the Environment in 1991
30
The Ministry of the Environment
31
The Ministry of the Environment
32
Danaher, p. 4
33
Barrett and Therivel
34
The LDP has been in power for a long time in Japan.
35
Brazil, p.335
36Danaher, p. 39
37
Danaher, p.17
38
For instance, the Law for Conservation of Endangered Species of Wild Fauna and Flora andthe Natural Parks Law. However, the public participation has been improved a little in 2002
amendment.
39
Huxley report. See 5
40
Danaher, p 3
417