The Legal Case Against Japan’s Fukushima Wastewater Decision – The Diplomat

Since the devastating March 2011 Japanese earthquake and tsunami, which damaged the Fukushima Daiichi nuclear power plant, 1.25 million tons of seawater have been pumped through the damaged nuclear units to prevent the melted fuel rods in three damaged reactors from overheating. The contaminated water has been stored in more than 1,000 steel tanks on site. But in April 2021, the Japanese government announced that it would, beginning in 2023 and for decades thereafter, discharge all of the treated wastewater into the Pacific Ocean as part of the plant’s decommissioning process.

Many countries that share a sea border with Japan (especially China, South Korea, and Russia), as well as domestic fishing and export interests, have raised a variety of objections and concerns. Yet with little fanfare in American media, the United States – which has both Alaska and Hawaii at risk – has supported Japan’s plan. The ecological and human risks at stake are potentially huge: The seawater may contain radioactive tritium, strontium-90, and C-14 (the latter known to bioaccumulate in marine ecosystems). Yet international political positioning seems to be playing a greater role than environmental concerns in national responses. Could that change before 2023?

A variety of international treaties, conventions, and agreements, as well as fundamental environmental protection principles, are relevant to the discharge of wastewater from Fukushima.

In 1958, the first United Nations Conference on the Law of Sea adopted the Convention on the High Seas in Geneva, which became effective on September 30, 1962. Pursuant to Article 25 of the Convention, “Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations.” Also in 1958, the Resolution on Pollution of the High Seas by Radioactive Materials was adopted by the first United Nations Conference on the Law of Sea. One of its recommendations was that the International Atomic Energy Agency (IAEA), in consultation with existing groups and established organs having acknowledged competence in the field of radiological protection, should pursue whatever studies and take whatever action is necessary to assist states in controlling the discharge or release of radioactive materials to the sea, in promulgating standards, and in drawing up internationally acceptable regulations to prevent pollution of the sea by radioactive materials in amounts that  would adversely affect people  and  marine resources.

The 1996 London Protocol, signed by many nations, prohibited the dumping of all wastes and other materials is prohibited except certain non-toxic materials that do not contain levels of radioactivity greater than de minimis (exempt) concentrations as defined by the IAEA. In 1999, the IAEA defined “de minimis” risk levels in terms of those of “no regulatory concern” and based on practices and sources that are “inherently safe.”

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Last and not least, the United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty ratified by over 160 countries, including China, South Korea, and Japan – but not the United States. UNCLOS stipulates that the ocean is the common heritage of mankind. Pursuant to Article 192, all states have the obligation to protect and preserve the marine environment. UNCLOS also established a complete legal framework that regulates all marine areas, the use of the ocean, and marine resources, as well as the protection and maintenance of the marine environment, marine scientific research, and the development and transfer of marine technology.

Moreover, Article 194 of  UNCLOS requires that member countries must: 1) take, individually or jointly as appropriate, all practicable measures necessary to prevent, reduce and control pollution of the marine environment from any source; and 2) take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. Last, UNCLOS Article 195 specifies that countries shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.

In light of the very clear obligations set forth in UNCLOS and the other conventions, how is the potential Fukushima nuclear wastewater discharging being viewed by neighboring countries?

Both the United States and the IAEA have voiced support for Japan’s announced plans for the Fukushima discharge plan. The IAEA said it would provide technical support for what it deemed to be a feasible means of disposal of the contaminated seawater. A week later the Biden administration voiced its support for what it said was a plan meeting international safety standard.

However, many others did not share those views, both within and outside of Japan. Domestic fishing, environmental, public health, and export interests objected both to the process leading up to the announcement and to the plan itself. They viewed the risks as being too great, and the added pollutant burden to the Pacific Ocean to be too much and with far-ranging scope affecting more than just Asia.

Indeed, calculations by Germany’s Geomar Helmholtz Center for Ocean Research predict that once the wastewater from the Fukushima nuclear power plant is discharged into the sea, radioactive materials will spread to most of the Pacific’s marine life and ecology within 57 days.

Neighboring countries such as China, South Korea, and Russia all voiced vigorous concerns, and warned that imports of Japanese seafood and agricultural products could be restricted – and that consumer confidence in purchasing such goods would be damaged. South Korea has threatened to take the issue to international judicial tribunals for review. How the dispute would be resolved pursuant either to the International Court of Justice, or to one of the various Conventions, remains to be seen. But in the meantime, there are some fundamental environmental protection principles and agreements that the United States in particular seems to be overlooking.

First, the treatment of Fukushima nuclear wastewater should give priority to the alternatives that have the least impact on the marine environment. The precautionary principle is the first principle of environmental law all over the world. Environmental policies and environmental laws should not just be after-the-damage-happens responses, but also should prevent hazards and harms to the environment and human organisms before they occur.

Under the precautionary principle, pollution avoidance is superior to pollution reduction. Avoiding the discharge of Fukushima nuclear wastewater should be superior to behaviors that comply with certain standards but can still cause environmental damage. Although the Fukushima wastewater is treated, the environmental impact of treated wastewater on marine life and ecological environment should be evaluated by marine, biological, and nuclear experts from various countries bordering the Pacific Ocean. In addition, the discharge of Fukushima nuclear wastewater is unprecedentedly huge, and the half-life of some of the radioactive elements means they will continue to pose a threat to the marine environment and marine life for decades. The materials are neither de minimis, nor “inherently safe.” Radioactive materials will also be transferred to the terrestrial environment and humans through marine life and other channels.

A second environmental principle is that of environmental hazard prevention or mitigation. It is akin to a precept to “do no harm” to the health of people, wildlife, fisheries, and natural resources. The ultimate goal is to ensure the protection of existing environmental quality and the possibility of future improvement. The environment must not be further deteriorated, and if pollution damage has occurred, it must be restored. Given that the Fukushima wastewater still exceeds Japanese discharge standards, it is impossible to say that in just two years the discharge will not cause damage to sea life of the Pacific Ocean.

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Third, the principle of equity is formed by the concept of ecological compromise, which is concerned primarily with considering the interests of all potentially impacted parties and resources – both international and domestic. The principle of equity is essentially a balancing of interests, which extends to international environmental protection issues and is closely related to the principle of cooperation articulated in UNCLOS and other agreements. Japan’s discharge of nuclear wastewater is not only related to the life and health of its residents and the safety of its ecological environment, but also to the global marine environment. It will impact neighboring countries and even the global ecological environment and people’s rights to life and health. In essence, Japan is placing the costs of its nuclear waste upon other peoples, and upon the Pacific marine life, which has no voice of its own.

UNCLOS stipulates that the ocean is the common heritage of humanity, and that all countries have the obligation to protect and preserve the marine environment. Japan has an international obligation to ensure that the activities under its jurisdiction or control do not cause pollution damage to other countries and their environment, and to ensure that the pollution caused by events or activities within its jurisdiction or control does not extend beyond the area where it exercises sovereign rights in accordance with this Convention. Other countries may pursue remedies through either the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitration tribunal organized in accordance with Annex VII of the Maritime Convention, or a special arbitration tribunal organized in accordance with Annex VIII of the Maritime Convention.

Even the United States, which is not a signatory to UNCLOS, might have some recourse should it change its political position. For example, in mid-2018 the U.S. Environmental Protection Agency and the Japan Atomic Energy Agency executed a Letter of Intent to cooperate “in the field of radiation protection.” As part of that agreement, the two agencies were to share radiation risk assessment models and related data. But, interestingly, the two countries also agreed to share “information on the uncertainty of radiation risk assessment, including the sharing of a report by the EPA on the uncertainty of EPA radionuclide cancer risk coefficients.” Given such acknowledged uncertainty, it would seem at least premature for the U.S. to be opining that the discharge of over 1 million gallons of heavily contaminated nuclear-radiated seawater is safe and poses no risks to human or other life. Indeed, back in 1975 the Japanese and American governments signed an Agreement “on cooperation in the field of environmental protection” in which both countries acknowledged “the responsibilities of each Government for the protection and improvement of the global environment.”

That “global environment” extends beyond Japan’s territorial waters, and any unilateral decision by Japan to discharge pollutants that could materially harm the environment across a significant part of non-Japanese waters would seem to be at odds with its responsibilities agreed to the international agreements we have summarized herein, as well as with the fundamental principles of and duties imposed by environmental protection for current and future generations of human and non-human life on our planet.