Is Japan Setting a Devastating Precedent: Fukushima Water Discharge Plan and Gross Violation of Human Rights and International Laws

During testing times when, the world is facing unprecedented challenges and violations of human rights and international laws, Japan has sparked a global debate with its recent announcement that it will begin releasing treated radioactive water from the wrecked Fukushima nuclear plant into the Pacific Ocean, over the next two years.  The cabinet of Prime Minister Suga has decided to dump over 1.23 million tonnes of radioactive waste water into the Pacific Ocean, ignoring people’s human rights and environment interests in Fukushima, Japan and other parts of the world. The decision has been criticised for posing a direct threat, not only to the Japanese population and aquatic ecosystems, but also the jurisdictional waters of other neighbouring countries. The problem becomes even more daunting because of the obvious violations of environmental and maritime law, as well as, the transboundary harm that will occur as a direct result.

The decision of discharging contaminated water in Pacific Ocean is a perfect recipe that can harm the marine life in totality. Further, we don’t know about the unexpected damages due to radioactive radiations that it may cause to humans, environment and to other living creatures. As once the water is released, it will be almost impossible to undo the action. Even if we can, it will be of immense cost and technological difficulties. Also, in the background of the lack of availability of fresh water and ongoing marine degradation, incidents like these could prove catastrophic. The actions of Japan will make a global impact and not only restricted to the marine territories of Japan. According to a German marine scientific research agency, with the world’s strongest currents near the coast of Fukushima, radioactive pollutants may travel across the majority of the Pacific Ocean within 57 days after discharge and reach all seas in a decade.

The UN has also issued statements expressing concern over the decision. Three independent UN human rights experts expressed deep regret on decision and warned that it could impact the lives of millions across the Pacific region. The release of such radioactive water into the marine environment poses significant risks to the full enjoyment of human rights of people at global level which is not limited to the borders of Japan. It is pertinent to note here that the issue of continued nuclear waste dumping in the ocean is a major socio-legal challenge. At the international level we have different treaties and resolutions that governs the subject matter of radioactive wastes dumping in the Ocean. Some of the prominent one are the Geneva Conventions on the Law of the Sea, United Nations Conventions on the Law of the Sea Treaties (“UNCLOS I” and “UNCLOS III”), Conventions on the High Sea,1958 and  the London Dumping Convention (“LDC”). According to international law, Japan is obligated to prevent any type of transboundary environmental harm that any of its actions may cause. In terms of the LDC obligations, Japan is obligated to exercise all due care and precaution with regard to waste dumping in the ocean. The decision means that Tokyo Electric Power Company (TEPCO) can begin discharging radioactive waste from its nuclear plant into the Pacific Ocean. It has been estimated that the preparation for the discharge will take two years. Given the paucity of scientific data on the health and environmental impacts of low-level radiation exposure from such water disposal, such a move would be contrary to the spirit, if not the letter, of the law.

Japan has obligations under the international law to prevent radioactive discharge of water, in accordance with Article 25 of Conventions on the High Sea, 1958. It is compulsory for States to prevent radioactive dumping and to work with international organisations to take measures to prevent the pollution of seas or air space, as a result of any activities involving radioactive materials or other dangerous chemicals. Further, Article IV of LDC explicit prohibit the dumping of high-level radioactive wastes. The objective criteria for determining which radioactive wastes were of high level was left to the International Atomic Energy Agency (IAEA). It is pertinent to note here that Article X of LDC, provides that the contracting parties must develop procedures in international law for determining liability and resolving dumping disputes.

Japan can only release the water into Pacific Ocean after getting clearance from the Environmental Impact Assessment (performed by the government generally)  as in accordance with Article 206 of UN Convention on the Law of the Sea (UNCLOS). Moreover, UNCLOS mandates all parties to work together to protect the marine environment, and Article 210 expressly states that “laws, regulations and measures shall ensure that pollution by dumping is not carried out without the permission of the competent authorities of States.” The dumping of radioactive waste is only allowed under international law as a last resort. International Radiation Protection precepts state unequivocally that an increase in radioactivity in the surrounding is only justified if no viable alternative exists. In this instance, there are alternatives that exist, as Japan can treat the contaminated water for a longer period of time to make it completely free from radioactive materials.

The geographical location of Fukushima plant is of utmost importance. The islands in the surrounding water are home to the indigenous peoples, and the decision of Japanese government is a clear violation of their human rights which are explicitly recognised by the UN. The release of contaminated water will affect the food and life cycle, and it will potentially disturb the environmental life, as well. It is a concrete step towards a gross violation of human rights by the Japanese regime. Arguendo, Article 8 of the London Convention and Protocol allows for dumping at sea, this article only allows dumping during an emergency with the caveat that a party “shall consult any other country or countries that are likely to be affected.” This provision could explain Japan’s “transparency” in providing two years’ notice of its intended action. However, it is debatable whether running out of storage capacity can be considered an emergency in this case. Irrespective of how such disputes play out, it is worth noting that neither the UN Convention on the Law of the Sea nor the London Convention and Protocol have strong sanction mechanisms. Enforcement is based on either coastal or flag states. States also have the option to bring their complaint before the International Court of Justice (ICJ).

An international collaborative effort is needed to develop and introduce new technology that can aid in the further processing of contaminated water to remove all radionuclides. Japan needs to reconsider its decision, as it can affect the live and livelihood of many. Japan needs to understand the Ocean is a mankind’s shared property. Japan is already facing a strong reaction from neighbouring countries like China and South Korea, international organizations environmentalist, environmentalist and many others have come forwards to mark their strong dissent against this decision by the Japanese Government.

In 2020, Shaun Burnie of Greenpeace, in a report warned that dumping contaminated water into the sea would release dangerous radionuclides such as strontium-90 and carbon-14, among others. There is an urgent need at international level to find an alternative solution to the problem, because if the decision of Japan is effectuated, it will set a devastating precedent for future.

Shelal Lodhi Rajput is studying law at Symbiosis Law School, Pune in India. He has interned for Ak Bhambri & Associates and Justice for You law firms, Niti Manthan, an Indian platform for a holistic understanding of law and society, and has served as a legal researcher and content writer at Lawlex Organisation in India.

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