Japan must pay for radioactive water damage

Japanese Prime Minister Fumio Kishida, by announcing on Tuesday that Japan will start releasing the nuclear-contaminated water from the damaged Fukushima Daiichi Nuclear Power Plant into the sea as early as Thursday, has showed neither he nor his administration cares a hoot about the marine environment and ecology and therefore human health.

What is especially striking is that Kishida made the announcement two days after returning from his meeting with the Unites States and Republic of Korea presidents at Camp David, Maryland. Equally surprising is the fact that either the US or the ROK, which as Japan's neighbor, would be one of the countries to be affected by the radioactive water.

IAEA not entitled to approve Japan's move

The International Atomic Energy Agency has promised that its staff would continue to monitor and assess the activities on site to ensure that they continue to be consistent with the safety standards, including on the day of the start of the discharge and after.

However, a major concern arises: in the event that the process initiates and subsequently causes damage to the marine environment, will the IAEA be able to assist Japan in remedying the situation and reclaiming the water?

By assuming that the IAEA's review of Japan's plan to dump the radioactive water into the sea gives it the license to poison the oceans, Kishida is doing one of the greatest disservices to not only the seas and oceans but also all life on Earth.

The key points of the IAEA's review report, issued on July 4, include the approval that Japan's plan to release the so-called treated radioactive water into the sea is consistent with the IAEA's safety standards, and that its impact on the marine environment and ecology and human health would be negligible.

The IAEA's review and assessments were conducted solely on the data and information provided by Japan, which comprised only a limited number of samples unilaterally selected by Japan. The problem is that the authenticity of the data themselves is questionable. In fact, the IAEA report admits that the Advanced Liquid Processing System, which Japan has been projecting as a magic pill, cannot remove tritium, among other radioactive isotopes, from the radioactive water.

Studies show that the ALPS method is ineffective in removing radioactive isotopes such as tritium and carbon-14 which have a half-life of 5,730 years and can pass through the food chain to other organisms and eventually to humans. As such, the long-term harmful effects of the radioactive water that Japan will dump into the sea over the next 30 years are unpredictable.

The IAEA report is not entitled to legitimize Japan's radioactive water discharge plan, because its conclusion goes against research results of authoritative research institutions such as the German Institute for Marine Research and the peer-reviewed studies published in the US journal Science. Besides, the IAEA does not have the authority to clear Japan's water discharge plan.

The objective of the IAEA is to seek to accelerate and enlarge the contribution of atomic energy to peace, people's health and prosperity throughout the world. In accordance with Article 3.A.6 of the IAEA statute, the agency is authorized "To establish or adopt, in consultation and, where appropriate, in collaboration with the competent organs of the United Nations and with the specialized agencies concerned, standards of safety for protection of health and minimization of danger to life and property … and to provide for the application of these standards, … at the request of a State, to any of that State's activities in the field of atomic energy."

The IAEA report, for all practical purposes, is a review, not an authorization for the discharge of the radioactive water into the sea or legal approval of Japan's water discharge plan. As emphasized by Rafael Mariano Grossi, director general of the IAEA, "the release of the treated water stored at Fukushima Daiichi Power Station is a national decision by the Government of Japan and that this report is neither a recommendation nor an endorsement of that policy".

Japan must compensate for marine damages

As decisions related to nuclear safety are a national responsibility, states should be held responsible and liable for any transboundary nuclear pollution and any damage caused by it. And since the Japanese government has decided to discharge the radioactive water into the sea, it must bear responsibility and liability for the transboundary pollution and the damage it causes.

Article 192 of the United Nations Convention on the Law of the Sea, to which Japan is a party, says that states have the obligation to protect and preserve the marine environment. And according to Article 194, states should take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, using the best practicable means at their disposal and in accordance with their capabilities.

States should also take all measures necessary to ensure that activities under their jurisdiction or control are conducted in a way that they do not cause damage by pollution to other states and their environment, and to ensure that pollution arising from incidents or activities under their jurisdiction or control do not spread beyond the areas over which they exercise sovereign rights.

Also, the measures so taken should deal with all sources of pollution of the marine environment, and minimize to the fullest possible extent the release of toxic, harmful or noxious substances into the sea. Japan has to bear responsibility and liability for violating these international legal obligations as well as those provided in a series of treaties related to nuclear safety and marine environmental protection.

No matter which way you look at it, Japan will still be responsible and liable for the damage caused by the discharge of the radioactive water into the sea even according to other international treaties and conventions international customary law, particularly the principle of the polluter pays, and compensation for transboundary environmental damage.

Japan has a relatively comprehensive legal system for nuclear damage compensation, including four major legislative instruments: the Act on Compensation for Nuclear Damage, the Order for the Execution of the Act on Compensation for Nuclear Damage, the Act on Indemnity Agreement for Compensation of Nuclear Damage, and the Order for the Execution of the Act on Indemnity Agreement for Compensation of Nuclear Damage. And a number of principles of international third-party liability regimes are embodied in Japanese laws.

The Act on Compensation for Nuclear Damage defines ''nuclear damage'' as ''any damage caused by the effects of the fission process of nuclear fuel, or of the radiation from nuclear fuel etc., or of the toxic nature of such materials". So, nuclear plant operators in Japan including TEPCO are liable for the nuclear damage caused by ordinary natural disasters such as an earthquake or a volcanic eruption.

In Japanese law, the liability of nuclear plant operators is unlimited, but they can cover such losses through an indemnity agreement with the Japanese government. In practice, a series of group lawsuits have been filed for huge amounts of compensation in different prefectures of Japan by environmental refugees and victims of the nuclear pollution damage caused by the damaged Fukushima Daiichi Nuclear Power Plant.

According to international law, Japan bears state responsibility for the discharge of the radioactive water into the sea and the damage it causes. Therefore, coastal states such as China, the Democratic People's Republic of Korea, the Republic of Korea, Russia, other Asia-Pacific countries, and even Latin American countries that would suffer from the environmental damage and economic loss due to the nuclear pollution caused by the radioactive water can form a delegation to file lawsuits with the International Court of Justice, the International Tribunal for the Law of the Sea or international arbitration for pollution damage compensation against Japan.

The author is a research fellow at the Institute of International Law, Chinese Academy of Social Sciences. The views don't necessarily reflect those of China Daily.

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