Fukushima Radioactive Water Discharge Case: A Vehement Violation of International Laws?

With the recent announcement that it shall be soon initiating a massive release of treated radioactive water from the wrecked Fukushima nuclear plant into the Pacific Ocean over a course of two years, Japan has stirred a global debate. The decision has been criticized for posing a direct threat to the human life and marine environment of not only Japan but also the jurisdictional waters of other neighboring countries. The issue at hand becomes even more daunting owing to the apparent environmental and maritime law violations as well as transboundary harm that shall occur as a direct consequence. Even the UN has expressed its concerns by stating that the release of such contaminated water into the marine environment imposes considerable risks to the full enjoyment of human rights of concerned populations in and beyond the borders of Japan.

Before further deliberations, it needs to be understood that both aspects of man’s environment, which comprises of natural and man-made aspects, are essential to his well-being and to the enjoyment of basic human rights – even the right to life itself. As a result of this understanding, the entire issue of continued nuclear waste dumping in the oceans has been seen as a major challenge. As a result, various international treaties and UN resolutions exist which govern ocean dumping of radioactive wastes. However, of all these three are most prominent, namely the first and third United Nations Conventions on the Law of the Sea Treaties (“UNCLOS I” and “UNCLOS III“) and the London Dumping Convention (“LDC”).

The Geneva Convention on the High Seas (adopted as part of UNCLOS I) tried to form a framework for international cooperation towards controlling radioactive waste pollution of the ocean. Article 25 of the Convention makes it mandatory for the states to prevent radioactive dumping as well as co-operate with international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radioactive materials or other harmful agents. UNCLOS III, which came as a successor, tried to further the aim of preventing marine pollution. It clarified the prohibition that the international law lays on waste disposal in the seabed. Part XII of this treaty is devoted exclusively to detailing the duties of participating nations “to protect and preserve the marine environment.“

Article IV of the LDC has outrightly banned the dumping of high-level radioactive wastes. The objective criteria of what radioactive wastes were of “high-level” were left to the IAEA to decide upon. On a joint reading of Article II, III, and IV of the LDC we may be able to conclude that the convention allows dumping radioactive wastes but of very low-level, that too only after a careful analysis as well as impact study and after completion and grant of special permits are by the IAEA and recorded which is recorded under the convention. The convention further calls upon the contracting states to implement “measures to prevent and punish conduct in contravention of the provisions of this Convention.” Further, Article X of LDC states that the contracting parties should develop procedures in international law for assessing liability and settling disputes regarding dumping.

Under international law, Japan has a duty to prevent any type of transboundary environmental harm that any of its steps might accrue. Understanding it in terms of the LDC obligations, Japan is bound to take all due care and precaution with the respect to the dumping of waste in the ocean. The fact that not much scientific data exists regarding the health and environmental impacts of exposure to low-level radiation of such water disposal, such a move will be highly inconsistent with the spirit, if not the letter, of this law.

Also, in addition to the U.N. International Maritime Organization (IMO), Japan is obligated under international law and is to take a significant note of any transboundary environmental harm, both to the territory of other States and to areas beyond national jurisdiction that its action may bring about. The current plans of contaminated water discharge into the Pacific Ocean can only be taken after the conduction of an Environment Impact Assessment under Article 206 of UNCLOS. International radio-protection principles clearly state that an increase in radioactivity in the environment is only justified in absence of a viable alternative. However, in the present case, long-term storage is an alternative option and hence, the present decision for the release of contaminated water cannot be justified.

Further, the islands in the surrounding water are home to the indigenous peoples, who have an internationally recognized right to free, prior, and informed consent. This right also includes the right to prior and informed consent regarding the disposal of waste in their waters and any other actions that may contaminate their food. Even though the Japanese government believes that this contamination will very small, the effect on indigenous people as well as their water and food is unquestionable obligation to consult with the potentially affected group before any such implementation.

The Japanese government has tried to sideline meaningful and mandatory consultations as required under international human rights law by citing the reason as that of the ongoing pandemic. As a result, they have also tried to dramatically accelerate the timeline for arriving at a decision making to dump the contaminated water. What surprises the global media is the fact that such a move has been taken even when Japan has the physical space to store wastewater for many years and there exists no reason for immediate discharge. While it’s true that the time cannot be wound back to prevent the disaster of 2011, however, it still remains a fact that Japan has a lot of opportunities to minimize the future effect of the damage.

There exists no rational nexus or explanation as to why further and deliberate radioactive pollution of the marine environment should be allowed from the Fukushima disaster debris. For the protection of the environment as well as public safety, the Japanese Government needs to reconsider its stance on the discharge policy. Further, the international obligations that would be violated are also to be taken note of and the prime focus of the Japanese Government should be adherence to the treaties and conventions as they are made for the collective good of humanity. The government needs to shift its focus to the existing alternative of securely storing the water in robust tanks for the long term instead of their untimely discharge in marine bodies.

An international collaborative effort needs to be made for the development and introduction of new technology which could aid in further processing of the contaminated water to remove all radionuclides. Japan needs to understand that there are grave risks to the livelihoods of fishermen in Japan, in and around its coastline, the neighboring countries, and to its international reputation. The international community needs to actively indulge in framing an alternative solution for if Japan is not deterred, it would set a devastating precedent for many such feuds in the near future.

Krati Gupta is a law student at the Rajiv Gandhi National University of Law, Punjab, India. 

Raj Shekhar is a law student at the National University of Study and Research in Law, Ranchi, India.

 Suggested Citation: Krati Gupta and Raj Shekhar, Fukushima Radioactive Water Discharge Case: A Vehement Violation of International Laws?, JURIST – Student Commentary, May 05, 2020, https://www.jurist.org/commentary/2021/05/gupta-shekhar-fukushima-international law/.