The Fukushima Wastewater Release and International Environmental Law of the Sea

October 4, 2021 by Digital Editor

Water is stored in two types of above-ground tanks, as seen here. Workers are working on a below-ground storage pool.

By Ignacio Etchepareborda and Marcelo Molina

Introduction

Since the 2011 Tōhoku earthquake and tsunami that hit Japan and devastated the Fukushima Daiichi nuclear power plant, contaminated water from the plant has been collected, filling approximately 1,000 tanks that sit only steps from the shoreline. Their storage capacity is rapidly running out, and it has been predicted they will be full at the end of next year.  In response to this situation, the government of Japan, after a Cabinet meeting in mid-April this year, announced its plan to release that wastewater into the ocean. 

While Japan and the International Atomic Energy Agency (“IAEA”) have stated that the planned release method is the most environmentally sound alternative, concerns remain among various stakeholders – including state representatives from China and the Republic of Korea – who worry about the long-term environmental impacts that such activity could have in the area.

This article intends to provide a conceptual legal basis to assess the scope of the obligations that Japan must comply with before releasing the Fukushima Daiichi wastewater into the ocean.   

The Applicable International Legal Regime 

The United Nations Convention on the Law of the Sea [“UNCLOS”], which has been adopted by 168 state parties – including Japan, China, and the Republic of Korea – has come to be known as the “cornerstone of international environmental law of the sea” and, as such, constitutes an appropriate starting point for this study.  

The situation of Fukushima Daiichi – assuming that it corresponds to an instance of marine pollution, i.e., the anthropogenic introduction of substances into the marine environment, which results or is likely to result in harm to it – could be best characterized as a form of “land-based” pollution, due to the source from which it originates. UNCLOS deals with this type of pollution mainly in articles 194 and 207, explained further below..  

Article 194 provides that “States shall take (…) all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source,” as well as those “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.”

Expanding on this, Article 207 – which deals specifically with pollution from land-based sources – stipulates that “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources (…) taking into account internationally agreed rules, standards and recommended practices and procedures.”

At this point, some partial conclusions can be reached, namely that States have an obligation to take measures to fight land-based pollution, and that those measures must take into account internationally agreed-upon rules and standards. However, a major problem arises when one tries to unravel what is meant by “taking into account,” and what the rules and standards to which Article 207 refers should be.

Regarding the first issue, scholars have noted that the “taking into account” language is indicative of a strong deference to State sovereignty, which means that, although international rules and standards must be appropriately considered when taking measures at the national level, the stringency of said measures ultimately depends on the judgment of each individual State.

Moving on to the second issue, it must be noted that there are currently no binding rules dealing specifically with land-based pollution at the global level, nor at the regional level in the Northwest Pacific Ocean. Rather, developments have only been made in the form of non-binding soft-law instruments, such as the Washington Declaration and the Montreal Guidelines.

As no guidance can be found in treaty law, it thus becomes necessary to examine if there is evidence of a customary norm that may permit us to find what could be the “internationally agreed rules and standards” that must be taken into account.

To ascertain whether an activity does not cause damage to other States and their environment, as mandated by UNCLOS Article 194, States must bear in mind the principle of prevention, which has also been recognized as an expression of customary international law by the International Court of Justice (“ICJ”). 

According to this principle, States must take all appropriate measures to prevent causing significant transboundary environmental harm. In this regard, the International Law Commission has stated that the obligation of prevention is one of due diligence, which means that when a planned activity risks causing significant harm to other States and their environment, the State responsible for such activity must carry all efforts to inform itself of the potential risks and take appropriate measures to address them.

The ICJ stated in Pulp Mills (2010) and later confirmed in Construction of a Road (2015) that due diligence would not be considered to have been exercised if a party planning the potentially harmful activity did not undertake an environmental impact assessment (“EIA”) on its potential effects. The Court pointed out that “prior assessment of transboundary impacts is a requirement under general international law.” 

Therefore, to comply with its obligations regarding land-based maritime pollution, a State must duly take into account the customary principle of prevention, which mandates that before authorizing an activity with potential to harm to the environment of other States, the State responsible for such an activity should carry out a prior assessment of its transboundary impacts. Even though the specific content of the assessment is left for States under their domestic laws to decide, it must at least include the effects of the activity on the environment as such. 

The Situation in Fukushima Daiichi 

The wastewater that Japan intends to release into the ocean contains several radioactive contaminants. The tanks have long been known to contain high levels of tritium, which is a component that is hard to remove from water, meaning its release into the ocean could be worrisome; but because it is relatively harmless to living cells in small doses, what worries scientists most is the presence of more harmful radioactive materials, including cobalt-60, strontium-90 and ruthenium-106, whose presence at the site  was first announced in 2018

The only data that scientists currently have about these non-tritium elements comes from only 200 tanks, and does not include other potential contaminants, such as plutonium. The problem with these components is that they behave differently on the ocean and are much more likely to end up on the seafloor or be incorporated into sea life. 

While there have been extensive studies carried out by the operator of the plant and by the IAEA, none has thoroughly assessed the amount of non-tritium elements, nor the potentially harmful effects that they may have to marine environments if released.

As these potential effects remain unknown and unassessed, it could be ascertained that Japan has not fully complied with its obligation to take into account the principle of prevention by carrying out a comprehensive EIA, thus, violating its obligations under international law. 

The emphasis is in the word “could,” since both the obligation under UNCLOS’ article 207 and the preventive principle tend to favour the discretionality of the territorial State’s assessment, especially since the former is limited to “taking into account” internationally agreed-upon rules and standards, and the latter provides no definition as to how comprehensive the EIA must be. Therefore, even though Japan must comply with the aforementioned obligations, it still retains a great deal of discretionality that could make it very difficult to determine at what point those obligations can be considered to have been met. 

Conclusion 

There is no question that the tanks sitting on the Fukushima Daiichi Nuclear Power Plant, which contain more than 1 million tons of contaminated water, present a serious risk for the safety of people and the environment. 

However, before releasing the treated water to the ocean, Japan has to comply with its obligations under the international environmental law of the sea which, according to Article 207 UNCLOS, involves adopting laws and regulations to manage marine pollution from land-based sources and taking into account internationally agreed-upon rules.

Among those rules, customary international law binds States to carry out an EIA when there is a risk that any activity may cause harm to the environment of other States. In particular, non-tritium elements that have been found in the water on several tanks are likely to be harmful to the marine environment if released. So far, no thorough analysis of the exact concentration or potential effects of those components on the marine environment has been carried out, and as the situation stands, releasing the wastewater without conducting such a thorough EIA could prove to be a failure on Japan’s part to comply with its aforementioned obligations. 

Regardless, great uncertainty lies in the road ahead, as international law provides no clear answer as to what specific standards Japan must meet to comply with its obligations, and the scenario has the potential to become even more  opaque, as the complaints from the neighbouring States may rise in intensity as the planned date of the release draws closer.


Ignacio Etchepareborda is a senior student in the University of Chile’s Law School. There, he collaborates with the Environmental Law Center. Marcelo Molina is a recent graduate from University of Chile’s Law School. He also works as an assistant editor in the Tribuna Internacional Journal.