On 13thApril, the Government of Japan announced that it would release more than one million tons of wastewater into the ocean. The decision of the Government was vehemently criticized by its native fishing industry and neighbors such as China and South Korea. However, Japan contends that decommissioning is a necessary evil because vast quantities of water containing non-tritium radioactive contaminants have been stored in the Fukushima power plant. The power plant was damaged by the tsunami in 2011. Recently, the researchers have also approved Japan’s decision to release the wastewater. They believe that the radiation in the water will be relatively low after the treatment, and it will not threaten the marine environment. Moreover, gradual discharge is considered to minimize the risk further.
Notwithstanding the approval of the researchers, radiation in any form or quantity can do no good, and it seems that the authorities collectively lack foresight. In light of the announcement made by Japan, this article aims to highlight the loopholes in the International Law that enable the States to exploit waterbodies in the name of state practice and jeopardize human health and marine life in inconceivable ways.
The first time the Fukushima controversy sprang up was back in 2011 when Fukushima Daiichi nuclear power plant poured an enormous amount of radioactively contaminated water directly into the east coast of Japan. Since then, there has been a continuous discharge of untreated waste into the Pacific Ocean. However, in 2013, after an unfortunate incident of leakage, Japan finally addressed the issue and started looking for ways to recover the earth In April 2021, the Government officially decided to embark on the decommissioning process. Unsurprisingly, the announcement was not well-received by the majority and has attracted interminable criticism from all and sundry.
Reaction of the Citizens Commission on Nuclear Energy
The Citizens’ Commission on Nuclear Energy of Japan, which is an independent research body established after the Fukushima disaster to devise policies related to nuclear power issues in Japan,is not in favor of releasing contaminated water into the ocean. The Commission has contended that the Government should strictly avoid the release of waste water containing harmful chemicals like tritium to the environment. As a feasible alternative, it had suggested the Government to store water in large and robust tanks on the land. However, the Government paid no heed. Therefore, the Commission has expressed discontent with the Government remaining incommunicado while taking a decision that could affect thousands of lives.
Opposition from local fishermen
The indigenous people of Japan have been fishing for generations, and Japan’s fondness for seafood has been the chief contributor to its flourishing fishing industry. The decision to discharge contaminated water came as a shock to the local fishermen, and they are now concerned about their livelihood because of the consequential plummeted sales. Much like the Nuclear Citizens Committee, the fishermen feel sidelined and demand an explanation for their exclusion from the discussion over an issue that predominantly affects them. Their main grievance is that the release and the associated rumors regarding the decline in quality of their catches post discharge will dissuade their consumers and adversely impact the industry.
Where does International law stand?
The United States, the United Kingdom, and other developed States have been disposing of radioactive wastes without any fear of sanction for ages due to inadequacies in international law and treaties to prohibit its dumping. As a result, the customary state practice has made it impossible to nip the acts that contribute to pollution in the bud.
In 1958, the United Nations Conference on the Law of the Sea adopted a Convention on the High Seas (hereinafter referred to as ‘Convention’). The Conference was primarily held to delve upon the issue of water pollution caused by oil spilling. Still, as the discussion progressed, contamination by radioactive waste was recognized as a potential hazard and was therefore included in the mandate of the Convention. Article 25 of the Convention makes it mandatory for every State to “take measures to prevent pollution of the seas from dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations.”However, no absolute ban has been imposed on the dumping practice. With the flexibility of these provisions, the wrongdoings of the States have been legitimized. It has opened a floodgate for the rest of the world to jump on the bandwagon and dump hazardous waste into water bodies. Manifestly, international law is poorly placed and nearly toothless in dealing with States who are actively and negligently polluting water bodies. There is a crying need for the international agreements to adopt plausible measures to increase its efficacy and uphold its purpose. So, what are these measures? The following paragraphs explain some of them.
Hold the States strictly liable
Japan was aware of the leakage from its plant, however, it chose to remain silent up until 2013 and got away despite its reckless negligence because international law does not provide any mechanism to hold such States liable. It is the primary obligation of the States to ensure no harm occurs and they should be held responsible for causing environmental damage inside and outside their territory. Thus, to protect the environment, the demand to adopt a strict liability framework has accentuated. Strict liability would impose legal responsibility on the States for the damages or injuries they cause, even if these results were unintentional.
The concept of strict liability is much more developed in domestic law than in International law. Statutes like the Federal Water Pollution Control Act (FWPCA) of the United States, the Environmental Liability Act (ELA)adopted by Germany 1990, the Environmental Protection Act 2002 of Mauritius, etc. impose strict liability on people or entities who cause death, injury, or property damage by causing environmental pollution from oil and other hazardous substances. Time and again, the need for development has been recognized by the international community. The Principle 13 of the Declaration of the United Nations Conference on the Environment in 1972 expressed that “States shall co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.” However, since the States have a strong penchant for their territorial sovereignty under the International law regime, it is a herculean task to hold them strictly liable for the damage they cause to the natural resources. Nonetheless, it’s time for the law to take the situation as its cue and start formulating rules to protect the environment from exploitation at the hands of powerful nations.
Shift towards a more stringent procedural law
The unilateral declaration of disposal made by the Government of Japan will give leeway to other states to dodge public consultations and disregard the general mandate. Considering the callous approach of the Government, disposal of tons of contaminated water into the ocean felt more like a matter of convenience than a last resort. It did not even care to tip-toe around other alternatives available and assess if the land disposal method, suggested by its Nuclear Committee, was a more feasible option. The conduct of the Government can set a dangerous precedent and needs to be confronted.
Some scholars suggest that imposing a heavy dumping duty on these States that discharge radioactive waste can resolve the problem. Some believe that laws should direct States to indemnify those who fall prey to their time-honored practice. However, these measures are plagued with challenges and will not act as a deterrent. Circumstances demand a systemic and sweeping change. It is imperative to devise a mechanism under the law that makes it mandatory for the States to bear in mind the interests of the related parties and hold a meeting with them to discuss alternatives and outcomes before disposing of waste into the shared water body.
Moreover, to keep a tight rein on the States, they should be asked to exhaust all other available alternatives, such as storage steel cylinders, geologic disposal techniques, deep borehole storage, or geopolymers, and prove that discharging contaminated water into the ocean is the only viable option left on the table. If the States have no choice but to go ahead with the disposal, a comprehensive monitoring and regulating mechanism must be adopted to consider surrounding circumstances, calculate potential problems that may arise after the disposal, and devise methods to minimize their effect. The procedure followed should be lucid to expose accountability of the States, and the cardinal principle should be safeguarding the population from any harm.
Climate change is already playing the central antagonist. Tiny droplets of water make a mighty ocean; a slight change in the marine environment can drastically impact the coastal communities and their livelihood. It can also enter the food chain and harm several others. Regulated dumping is also not the solution. It will not reduce the long-term impacts of pollution on the availability of resources for our future generations. We are the trustees for those who come after us, and as fiduciaries, it is our duty to ensure that everything is done strictly according to Hoyle before risking the environment.
About the Author
Ananya Bajpai is a third year law student at West Bengal National University of Juridical Sciences, Kolkata, West Bengal.
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