Editor's note: On April 13, 2021, the Japanese government announced its plan to dump more than 1 million tons of nuclear-contaminated water from the tsunami-devastated Fukushima Daiichi Nuclear Power Plant into the sea in two years. Now that two years have passed since the announcement, Japan could start dumping the radioactive water into the sea any day. Four international law experts share their views on the issue with China Daily.
(JIN DING / CHINA DAILY)
Tokyo must pay for its wrongs
A review of international environmental law shows that the liability for environmental damage is not restricted to paying compensation for only the damage caused by wrong actions, but also requires the operators (of the concerned company or plant) and their countries to bear compensation liability for cross-border environmental damage caused by even non-prohibited conducts. Also, international environmental law strengthens increasing compensation according to the level of environmental risk.
Environmental risk includes two aspects: the possibility of occurrence of damage and the severity of the consequences caused by the damage.
In this sense, those opposing the discharge of radioactive water from the Fukushima plant by Japan do not mean to trigger a conflict with Japan. Instead, they, together with Japan, want to solve a global environmental problem. In the modern world, threats created by modern technologies such as nuclear technology are not limited within national boundaries, but can become cross-boundary environmental risks.
International environmental law has established the principle of risk prevention, which should be strictly adhered to in order to protect the marine ecosystem. As an emerging rule, its implementation depends on specific measures, which include strong and weak risk prevention measures, such as prohibition and restrictions on the discharge, dumping, incineration and transportation of toxic, harmful and noxious substances, as well as norms for the use of marine biological resources.
As for the Fukushima radioactive water problem, it is necessary to prevent risk escalation and ecological damage by implementing a foolproof treatment plan for the contaminated water. The principle of risk prevention is clearly defined in international environmental law, which should be upheld, and emphasized in marine environmental protection.
According to the provisions of the United Nations Convention on the Law of the Sea, once a signatory party becomes aware of the urgent risks of pollution to the marine ecosystem, it is obligated to immediately notify other relevant parties and international organizations. While efforts should be made to cooperate with each other and jointly eliminate or reduce pollution and prevent or minimize the potential damage, the signatory parties must take all necessary measures to ensure that activities under their jurisdiction or control do not damage the environment of others or in jurisdictions beyond their own.
That's why the Japanese government's decision to dump nuclear-contaminated water into the sea apparently "without causing any environmental damage" lacks support. Based on facts and conclusions from relevant studies, it can be presumed that the discharge of more than 1 million tons of radioactive water into the sea will almost surely have serious harmful consequences. And given the possible long-term, severe and irreversible damage the radioactive water could inflict on the marine environment and ecology, the international community cannot wait until they occur. It needs to act promptly and prevent Japan from dumping the nuclear-contaminated water into the sea, and discuss a safer and more reasonable plan instead.
The international community should reach a consensus on compensation for damaging the marine ecosystem and, equally importantly, tell the Japanese government that it cannot make the international community "pay the bill" for its misguided and irresponsible action.
Mei Hong is a professor at the Ocean University of China Law School.
A tunnel can't help Japan escape its obligations
In August 2021, the Tokyo Electric Power Company said it would start building a tunnel after carrying out feasibility studies and getting approval from the authorities to discharge nuclear-contaminated water from the Fukushima plant into the sea. The drilling of the tunnel — about 2.5 meters in diameter, 1 kilometer in length and 12 m below the sea level — will start near Unit 5 of the Fukushima plant.
Once Japan succeeds in discharging the contaminated wastewater into the sea, it will be the first case of deliberately polluting the oceans by dumping radioactive water, and causing intractable damage to the marine ecosystem and human health.
According to a report released by the International Atomic Energy Agency on April 5, sea water will be mixed with "the Advanced Liquid Processing System (ALPS) treated water" in a mixing well before being discharged through an undersea tunnel. The discharge point of the tunnel identified by TEPCO is located in a zone restricted for commercial fishing.
Questions over the legality of Japan's decision to release radioactive water into the sea through the undersea tunnel were raised by the Republic of Korea at the London Convention and London Protocol meetings in October 2022. However, Tokyo argued that the issue "should not be discussed" at such meetings.
The differences between the ROK and Japan reveal an inconvenient truth: that Japan is trying to circumvent international law by building an undersea tunnel to discharge radioactive water into the sea. This raises the vital question of whether international law would apply in case Japan starts dumping the nuclear-contaminated water into the sea at the turn of the spring or in summer this year.
The international law applicable to Japan's decision to dump radioactive water comes from the London Convention and London Protocol, as well as the UN Convention on the law of the Sea. Under the LDC and LP, the discharge of radioactive wastewater through an undersea tunnel may be technically feasible, but legally challenging.
First, the legal status of the undersea tunnel is open for debate. For example, if interpreted as "man-made structures at sea "under the London Protocol, Japan would be prohibited from discharging radioactive waste through the undersea tunnel.
Second, the interpretation of the term "at sea" is critical to determining the legitimacy of Japan's decision to dump radioactive water into the sea. According to Article 1 of the London Protocol, "at sea", subject to prohibition on the disposal of radioactive waste or materials, includes all marine spaces, the seabed and subsoil thereof, excluding subseabed repositories. Moreover, undersea tunnels built for the purpose of dumping radioactive wastewater into the sea should not be seen as "sub-seabed repositories" so as to sidestep the provisions of the protocol.
And third, even if the undersea tunnel is interpreted by Japan as a type of "sub-seabed repository" — contrary to the purpose and objectives of the protocol — environmental impact assessments conducted by independent third-party organizations will be needed to determine the "legitimacy" of Japan's dumping of radioactive water into the sea.
The legitimacy of Japan's actions depends on whether the country wishes to fulfill its procedural obligations on marine environmental pollution under the UNCLOS. And examining the legality of Japan's future activities cannot be separated from the legal description of TEPCO's undersea tunnel.
Dumping radioactive wastewater into the sea is a gross violation of the basic principles of marine environmental protection, such as the precautionary principle, and the principles of due diligence and state responsibility for causing trans-border damage, and the principle of international cooperation, which are reflected by international jurisprudence. In attempting to circumvent international law, Japan is exhibiting its complete disregard for the "international rules-based system" it claims to uphold. But it will be difficult for Japan to circumvent the legal provisions even if it builds the undersea tunnel and releases the radioactive wastewater through it into the sea.
Liu Dan is a professor at Koguan School of Law, Shanghai Jiaotong University.
Dumping shuns domestic and global responsibilities
On June 17, 2022, the Supreme Court of Japan ruled that the state was not liable for the 2011 Fukushima nuclear disaster and absolved the government of any responsibility to pay compensation to the victims of the tsunami-induced nuclear disaster.
The disaster, which affected about 32 million people in Japan alone, has had far-reaching consequences, both domestically and internationally. The tanks built by TEPCO to store the radioactive water from the Fukushima plant have accumulated 13 million tons of wastewater.
On April 13, 2021, the Japanese government announced its decision to release the nuclear-contaminated water into the sea after two years. And in January this year, it said that the radioactive water would be dumped into the sea in a few months. This is an irresponsible decision, for it will harm not only the Japanese people but also those in neighboring countries and beyond.
The Japanese government is under immense pressure from its citizens, particularly from fishermen, to not release the contaminated water into the sea. In a country that swears by the rule of law, the government is obligated to respect and guarantee the fundamental rights and protect the legitimate interests of its citizens, such as the right to life and the right to health. The potential harm the contaminated water will cause to the fishermen's livelihood is clear.
Moreover, the United Nations General Assembly has declared that a clean, healthy and sustainable environment is a universal human right.
Several aspects can be identified concerning a state's responsibility for protecting the environment, such as the responsibility to take precautionary measures to prevent environmental risks, to intervene to prevent environmental damage, and to take remedial measures to repair environmental damage.
In this regard, Japan should make every possible effort to prevent potential environmental risks to the Japanese people, who will undoubtedly be the first victims of the dumping of radioactive water into the sea.
On the global front, Japan will fail to fulfill its responsibility to protect the environment and the marine ecosystem. Countries with nuclear power plants bear compensation liability for the damage caused by nuclear accidents, regardless of whether they are at fault or have taken all reasonable measures to prevent accidents and damage. International law experts have explored the issue of trans-boundary environmental damage in several cases, and broadly agree that states have a duty to prevent such damage.
Hence, the international community should ask Japan whether it has taken every precautionary measure to prevent the potential damage to the marine ecosystem, which could have a long-term impact on the planet we call home.
The International Law Commission of the UN has said in the Draft Articles on the Prevention of Trans-boundary Harm from Hazardous Activities that states have a duty to prevent harm: "The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof." This means states are obligated to perform "due diligence", and take appropriate measures to prevent trans-boundary damage.
Japan must answer some vital questions which both its citizens and the international community pose. Is dumping of the radioactive water into the sea the only way to deal with the problem? Has it exhausted all possibilities of disposing the wastewater without harming the environment, the marine ecosystem and human lives?
Yet there is hope. Despite the Japanese Supreme Court's ruling, several district courts have refused to absolve the government of its responsibilities. With the help of the international community, we hope Japan will act responsibly by not dumping the radioactive water into the sea.
Li Shuo is a lecturer at the Dalian Maritime University.
Chang Yen-chiang is a professor of international law studies at the Dalian Maritime University.
The views don't necessarily represent those of China Daily.