Despite concerns of other nations, Japan has yet to reconsider its unilateral decision to discharge radioactive waste water of the Fukushima Daiichi Nuclear Power Plant into the Pacific Ocean. 

Worried about the discharge plan, Russia, the Democratic People’s Republic of Korea, the Republic of Korea, the Philippines, New Zealand, Mexico, Dominican Republic, Nicaragua, Honduras, Guatemala and Pacific Island nations have voiced their concerns. Environmental groups (eg. Greenpeace) as well as local residents of Fukushima and Japanese fishermen also expressed their objections. 

It is difficult to take comfort in the comments made by the International Atomic Energy Agency (“IAEA”) that Japan’s chosen disposal method is both technically feasible and in line with international practice. Nor is it easy to harbor the counter-factual belief that discharging the contaminated water into the Pacific Ocean is the only feasible option to deal with the problem of radioactive waste water.

There are several reasons why Japan’s discharge proposal has attracted fierce opposition and raised the issue to the forefront of consciousness in other concerned countries and environmental groups. 

First of all, the current support given by the IAEA to the discharge proposal has not put the worries of the above countries or environmental groups to rest. 

According to Japanese experts, discharging all the water to the sea in one year would cause a radiation dose of 0.81 micro sieverts to the locals, and therefore it is negligible. The advanced filtering process will remove most radioactive elements from the water, leaving only tritium that is not harmful in small quantities. 

Worried about the discharge plan, Russia, the Democratic People’s Republic of Korea, the Republic of Korea, the Philippines, New Zealand, Mexico, Dominican Republic, Nicaragua, Honduras, Guatemala and Pacific Island nations have voiced their concerns

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The above calculation and assessment have been endorsed by the IAEA. Disappointingly, Director General of the IAEA Rafael Grossi even stated that “the Japanese government’s decision is in line with practice globally, even though the large amount of water at the Fukushima plant makes it a unique and complex case.”

But apart from this “unique and complex case”,  there is a big difference between the discharge from normally operated nuclear plants and the discharge of the Fukushima contaminated waste water. Discharges from the former are mainly from the technology and land drainage, which contains few fission nuclides. Unlike contaminated waste water discharged from the former, the Fukushima contaminated waste water contains a variety of radionuclides in the melted reactor core, which are difficult to treat. Japan has failed to explain away the differences.

Secondly, it does not need anything more than common sense to acknowledge that the perceived human health hazard brought about by the discharge is bound to toughen the resolve of many to oppose the disposal plan. In spite of the assurance that the dumped water will be treated and diluted to drinkable standard, the risk on health of residents in Fukushima, other coastal regions and neighboring countries cannot be eliminated. Japanese fishermen are particularly worried about the adverse effect of the discharge on the marine food chain, especially when the USA has emphasized banning of marine products from Fukushima region.

Thirdly, the Tokyo Electric Power Company, the operator of the Fukushima nuclear plant, has a long history of being dishonest on leaks of radioactive elements into groundwater. Its credibility problem has cut too deep a wound in the hearts of local residents, environmental groups and neighboring countries. As a result, there are suspicions that the level of tritium being left in the contaminated water will be far higher than promised, which has led to proposals that an independent body be set up to check tritium concentrations in each tank before its release into the sea.

It is of the highest importance that Japan should responsibly conduct further research on all safe ways of disposal. In fact, release into the ocean was just one of the five proposals considered by the experts of the Ministry of Energy, Trade and Industry of Japan. Other proposals are: (a) releasing the water into the atmosphere through evaporation; (b) injecting the water deep underground, or mixing it with cement and burying it underground; (c) storing the water in tanks; and (d) developing technology to separate and remove tritium from the water. 

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It seems that the third proposal offers an easy way out of the impasse. According to the (c) proposal, Japan could have solved the problem by simply allocating more land surrounding the power plant for water tanks, since the surrounding area has been designated as unsuitable for human beings.   

In response to the intransigent and irresponsible attitude of Japan, the Republic of Korea is considering filing a lawsuit with the International Tribunal of Land and Sea. Gao Zhiguo, president of the Chinese Society of the Law of the Sea and a former judge of the International Tribunal for the Law of the Sea (“ITLOS”), suggested that China and the ROK should jointly request a legal advisory opinion from the International Court of Justice or the ITLOS. Because of the consensual basis of the jurisdiction of the ICJ, cases will only come before it if there is an agreement between the state parties.

In 1974, France disdained to appear to answer a case brought by Australia over nuclear testing in the Pacific and in 1984 the US walked out of the case brought by Nicaragua. Though superpowers often treat the ICJ with contempt, Gao’s legal initiative may exert considerable political pressure on Japan. 

Gao said a series of principles, norms and obligations of international law, and the precautionary principle can be applied when dealing with Japan’s discharge plan. The precautionary principle requires decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain and the stakes are high. Based on the “polluter pays” principle and the principle of state responsibility and compensation, coastal residents of Japan, the ROK and China who would be severely affected by the discharge can form a delegation to file a lawsuit against Japan.

Article 6 of the Rome Statute (1998) contains the authoritative definition of “crimes against humanity”. The acts themselves are for the most part crimes which cause great and unnecessary suffering -- murder, torture, rape and other forms of sexual violence, enslavement, false imprisonment and unlawful persecution or deportation. It seems that, under the worst-case scenario, the discharge of radioactive waste water will not constitute ‘crimes against humanity’.

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What is getting harder to ignore is that the broad definition of “crimes against humanity” proposed by the International Law Commission may widen the net by catching any inhumane acts instigated or directed by governments or by any organizations. 

According to Article 2 of the draft Articles on Prevention and Punishment of Crimes Against Humanity (2019), inhumane acts are defined as acts committed as part of a widespread or systematic attack directed against any civilian population intentionally causing injury to body or to mental or physical health. Many NGOs support the new definition. Though Japan may regard this proposal as an irrelevance, the shifting international opinion against government-instigated inhumane acts merits considerable attention. Discharging radioactive waste water irresponsibly into the ocean may constitute an inhumane act proposed by the ILC.

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Junius Ho Kwan-yiu is a Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic law Research Center.

The views do not necessarily reflect those of China Daily.