In this article, we will analyse whether the Fukushima Wastewater Decision is in violation of Japan’s International Legal Obligation. Further, we will understand the expected impact on Environment.
Amidst the Covid-19 crisis when the world is already suffering from a number of Environmental problems, the Government of Japan’s recent decision to further contaminating the environment by dumping the Fukushima wastewater, highly dangerous water containing radioactive substances, in large quantities, into the Pacific Ocean has prompted a lot of criticism and condemnation from the International community.
Japan’s unveiling of this plan, specifically, at the time when the world’s oceans are already under severe threat owing to the climate emergency, biodiversity loss and water pollution, is totally wrongful and unacceptable. This decision poses a direct threat not only to the oceanic environment but also to the international community as a whole.
Through this article, the writer analyzes Japan’s decision in light of its legal obligations under International law. An attempt would be made to answer some of the burning questions such as, how hazardous is Fukushima wastewater? Why international community is condemning such a decision despite Japan’s contention that it (wastewater) is neither harmful for human life nor destructive to the oceanic environment?
Moreover, how this decision would affect or violate the rights of the indigenous communities would also be discussed.
In the end, some recommendation would also be delineated regarding other alternative measures which may be adopted by Japan for dealing with this persistent problem.
II. Fukushima Wastewater Decision
On the 13th of April 2021, the Government of Japan announced that it has approved a plan accordingly it will discharge 1.25 million tons of wastewater, contaminated by the wrecked Fukushima Daiichi nuclear power plant, into the pacific ocean (See here).
This decision has not only been criticized by its neighbouring states such as China and South Korea, but local fishermen and fishing industries have also raised strong objections as it is believed to be in contravention of the spirit and normative requirements of the right to a safe, clean, healthy and sustainable environment.
Before delving deeper into the decision and its legal implications, one needs to understand the origin of this waste-water commonly known as Fukushima waste-water for assessing how hazardous it may prove if released into the Pacific Ocean.
Fukushima Daiichi is a Nuclear Power Plant, located in one of the towns of Fukushima Japan. It was commissioned for the very first time in the year 1971, Fukushima power plant was one of the 15 largest nuclear power stations in the world.
Regrettably, On March 11, 2011, Japan witnessed a highly disastrous major earthquake followed by a Tsunami which caused severe damage to the Nuclear power plant. Out of 6 nuclear reactors, three suffered core damage consequently releasing hydrogen and radioactive materials. This meltdown of three nuclear reactors caused the contamination of water, which is, since then, being held in the storage tanks.
Owing to the accumulation of large quantities of this contaminated radioactive water, Japan believes that it will run out of space by 2022, therefore Tokyo Electric Power Company (“TEPCO”) considers the release of this wastewater into the nearby sea (Pacific Ocean) as a viable option regarding which it has acquired Government’s Approval as mentioned above.
III. Possible Damage and Japan’s Justification
Japan claims that the release of the water is safe, thereby, poses no harm to human lives because said water is filtered to remove almost all radioactive elements and would be diluted before dumping therefore in compliance with Standards of World Health Organization (“WHO”). But it must be stressed that even after purification still, that water contains dangerous radionuclides, including Tritium, Strontium-90 and Carbon-14. (see here)
Given the fact that the health of Humans, Animals and the Environment are intertwined, this decision of discharging highly contumacious water into the ocean poses a serious threat to the oceanic environment, ultimately affecting human lives.
UN human rights Experts while expressing deep concerns have stated that “Radio Active tritium could pose severe risks to human lives and the environment for over 100 years.” (see here). However, in response to concerns raised by the UN experts, Japan has suggested that treated water stored in the tanks was not contaminated by these harmful radioactive materials. Japan believes that, because water is purified through the Advanced Liquid Processing System (ALPS), therefore it is “Treated water” and no more contaminated.
But contrary to Japan’s understanding, one must note, that “ Although it is treated any water which contains Radioactive Carbon-14, Tritium as well as other radionuclides such as Strontium, in large quantities, can only be described as Contaminated.”
In response to Japan’s this contention, Shaun Burnie, a senior nuclear specialist with Greenpeace East Asia has stated that “If water was not contaminated or radioactive then Japan would have no need to get approval from Japan’s Nuclear Regulator for its release, (See here).
Besides this, Japan argues that levels of tritium in the water are very low, posing no threat to the oceanic environment. But Scientists have expressly warned, (see here), that the tritium isotope, in water, is capable of binding with other molecules and consequently it can move to the food chain affecting plants, animals and humans. Back in 2014, a scientific American article reported that tritium, upon ingestion, could lead to cancer risks.
Apart from radioactive tritium, there are also other contaminants present in the wastewater which are equally harmful as confirmed by Mr Ken Buesseler, a senior scientist at the Woods Hole oceanographic institution in Massachusetts who has stated that, “I am concerned about the non-tritium radioactive contaminants that still remain in tanks at the high levels.” (see here). These contaminants are more harmful than tritium, capable of readily accumulating in the seafood as well as seafloor sediments.
IV. How this decision impacts the Rights of Indigenous People: In light of UN Declaration on Rights of Indigenous People, 2007
International Human rights are conferred upon all human beings without any discrimination, despite that some groups of people are often more vulnerable to certain threats. Among the indigenous people have always suffered injustices and severe threats to their basic rights during and after the colonial era. Currently, the Ainu People of Japan, officially recognized as an indigenous group since 2008, deserve special attention.
Because this decision of discharging 1.25 Million tons of contaminated wastewater would surely harm their traditional fishing practice which is an integral part of their cultural life and identity.
UN Declaration on the Rights of Indigenous Peoples of 2007 (“UNDRIP”) recognizes in its Preamble that respect for the “Indigenous cultures, traditional practices and knowledge would contribute towards sustainable development and proper management of Environment. UNDRIP also affirms, under its Article 11 and 15, that Indigenous people have the Right to “Practice and Revitalize their cultural traditions” and “revitalization of dignity and diversity of their cultures” respectively.
In accordance with International Human rights concerning culture, a state is under an obligation to ensure the enjoyment of indigenous people and minorities’ cultural life. This in turn imposes a responsibility upon the state to consult with Indigenous people before executing any proposed initiative which is likely to affect them. This is also established in the number of previous cases, such as Jouni E. Länsman et al v. Finland of 2005 ( See here).
Similarly, in the present situation, Japan has an obligation to first consult and obtain the consent of the Indigenous people before executing its plan of dumping wastewater is given the fact that these people (Indigenous) are prone to be more affected by it because their cultural life wholly depends upon the Fishing, resultantly, Japan’s decision is likely to cause irreparable damage to their cultural and traditional practices.
Right to consultation and Prior informed consent
The Notion of Free, prior and informed consent (“FPIC”) refers to the “Process of Participation and engagement of Indigenous people, minorities and local communities in the decision-making process of Government (Such as Japan’s) concerning those projects which might affect their rights. This right to consultation constitutes an integral part of the human right to dignity and culture. Right to consult and FPIC have been considered as a procedural safeguard to substantive rights of Indigenous people and local communities.
Article 32 of UNDRIP requires States to consult and cooperate in good faith with indigenous people in order to obtain their FPIC prior to approving any project which might affect them and their resources. It is particularly concerned with the storage or disposal of hazardous materials.
Notwithstanding its obligations under International law, the Japanese Government has ignored the indigenous people’s right to consultation thereby disrespecting the Ainu people’s (Indigenous People) Right to FPIC. For example, back on October 9th, 2020, two municipalities namely, Suttsu and Kamoenai, in the Hokkaido prefecture, applied to be considered as the final sight for disposing highly radioactive waste from nuclear power plants in exchange for Government subsidies, without obtaining Ainu people’s FPIC (See here).
Likewise, with respect to the present Fukushima decision, one cannot find any evidence which might suggest, in any way, that Japan has either duly consulted with or, obtained prior FPIC, of indigenous people, minorities and local communities. Because after Japan’s pronouncement of decision, Local communities are protesting against the same in their strongest terms (see here). Whereas in light of UNDRIP Japan is obliged to obtain prior FPIC of indigenous people before executing this measure of discharging Fukushima wastewater.
Though Japan may consider itself as not being bound by UNDRIP because it is not a binding document, nevertheless, besides UNDRIP, there are also other binding conventions as well such as 1989, Indigenous and Tribal Peoples Convention.
V. Support or Opposition from International Community?
International Atomic Energy Agency (“IAEA”) is favouring Japan’s decision. IAEA considers “Disposal of water into pacific ocean feasible and in line with International Practice.” Apart from the support of IAEA, Japan’s decision is also being backed up by some scientists according to whom, “Elements left in the water are only harmful if taken in large doses, while after being diluted the same poses no damage to human lives.”
Nonetheless, Japan has prompted large criticism from its Neighboring states, mainly, China, South Korea and Taiwan, including Municipal assemblies, fisheries associations and citizens and environmental NGOs.
As stated by Jennifer Morgan, Executive director at Greenpeace, “In face of so many challenges to oceanic environment Japan and TEPCO cannot justify the deliberate dumping of nuclear waste into the Pacific Ocean. This decision is considered unreasonable and disappointing as Experts believe that Japan could resort to available alternative measures.
UN Human Rights experts while expressing their deep regret over Japan’s Decision have endured reminding Japan of its international Obligations to prevent exposure to hazardous substances and to prevent transboundary environmental harm thereby protecting Marine Environment. (See here) Japan’s fishing industry has also raised objections against it for they are worried that consumers would not be willing to buy products from the region which would result in loss to the fishing practices.
South Korea has condemned the same by expressing deep concerns, it also seeks to initiate litigation against Japan. China has also urged Japan to “Act in a responsible manner and to safeguard international interests”. In view of this huge condemnation, from the national and international community, Japan might be compelled to reconsider its decision.
Japan’s this move would certainly cause serious and long term consequences for Communities, the Environment and the international community as a whole. Moreover, international human rights obligations require it to reconsider its decision to dump contaminated water into the Pacific Ocean.
Japan is bound by the precautionary principle which requires states to adopt precautionary measures when the scientific evidence about the possible hazards or effects on the environment or human health is uncertain and stakes are high. Furthermore, it is required to act with “Due diligence” which obliges countries to take all feasible and necessary measures to prevent any harm which may occur by its actions to the international community. In any event, it is bound by the responsibility to not cause environmental damage.
Discharging the wastewater into the ocean does not seem to be a viable measure, as it is not a long term solution. Because the amount of contaminated water increases every day by 150 cubic meters. Therefore, even if Japan is allowed to release this water, despite that owing to continued contamination of groundwater there will be another accumulation of approximately 500,000 tons or even higher, in addition to this 1.25 Million tons, by 2030. (See the report here).
Consequently, the only possible measure to cope up with this issue is to stop the generation of this contaminated water, and, in order to cease the production of contaminated water, one possible prerequisite is to change the cooling mechanism, from a water-based cooling strategy to air-based cooling system.
Lastly, Fukushima wastewater is not only Japan’s national issue, but this is a matter of global concern because it poses a severe risk to the Fundamental human rights of the world at large. Therefore, Japan must reassess the feasibility and efficacy of other possible means for handling this contaminated water. A new, better and preferable approach is needed for getting rid of this highly hazardous radioactive wastewater.