Environment Japan: Better to be safe than sorry

A woman places flowers on beach in Iwaki city, Fukushima prefecture on March 11

Following the announcement of the Prime Minister Fumio Kishida on March 3rd, 2023, the Japanese Government Chief Cabinet Secretary Hirokazu Matsuno has recently confirmed (BBC source) that they are planning to release 1.3 million cubic meters of contaminated water into the sea from the destroyed Fukushima nuclear power plant. This release of dirty water is supposed to occur around this coming Spring or Summer, but the Government of Japan has stated that no discarding will be initiated before receiving the International Atomic Energy Agency “comprehensive report”. Four important arguments to mull this dumping over and revoke such plans:

The precautionary argument

The core argument to freeze an environmental risky activity capable of causing a serious or irreversible damage due to the lack of scientific certainty should be avoided. This precautionary principle is part of a number of international legal instruments, and it is a pillar stone of the international environmental law. Indeed, and despite of a single understanding of its legal interpretation, the principle 15 of the 1992 Rio Declaration on Environment and Development, is extensively recognized by states and provides a practical guidance to the concrete application of international law.

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” (Rio Declaration, 1992)

Consultation with neighboring countries

The Rio Declaration on Environment and Development further indicates the need for international effective cooperation to discourage or to prevent the relocation and the transfer to other states of substances that may cause severe environmental degradation or are harmful to human health. In addition, States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. South Korea, China, several Pacific Island nations and even Japanese fishing communities have objected to the planned release.

The illegality of sea dumping

Since 1996, Japan is party to The United Nations Convention on the Law of the Sea (UNCLOS) and to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (The London Convention), and its 1996 protocol with 2006 amendments. The UNCLOS provisions are clear to impose a general obligation to States to protect and preserve the marine environment (article 192) and strictly to impose a binding commitment to all parties 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, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention (article 194, paragraph 2). Specifically speaking, article 194, paragraph 3, imposes an obligation to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (…) (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

As Japan is also party to the London Convention of 1972, which is one of the first global conventions to protect the marine environment from human activities and has been in force since 1975, the country should bear in mind that its major objective is to promote the effective control of all sources of marine pollution (not only the vessels) and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. In fact, the article 3 of the London Convention defines and prohibits dumping as any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea. However, the parties to the London Convention (and Protocol) have adopted an amendment to ensure that the dumping of sewage sludge at sea would be prohibited worldwide. Indeed, the amendment to the London Protocol removed sewage sludge from the list of permissible wastes – wastes which may be considered for dumping at sea. The amendment was adopted by the 44th Consultative Meeting of Contracting Parties to the London Convention and the 17th Meeting of Contracting Parties to the London Protocol (LC 44/LP 17), which met at the international Maritime Organization Headquarters in October 2022. In the same line of reasoning, a number of states (such as Australia) also introduced in their national legislation the prohibition of disposal of dredged or excavated material at sea.

Better safe than sorry

History reminds us all that Japanese militarism caused sorrow and disgrace to the international community during the World War II. Up to today, the consequences of this unacceptable action left worries and concerns in many nations, including its closest neighbors. Currently, Japan has insisted in its continuation of an absurd whaling killing program, despite of the UN International Court of Justice rulings, which had ordered (in 2014) an immediate cease of operations. The UN International Court of Justice in addition to a number of other countries, scientists, and environmental organizations, consider the Japanese research program to be unnecessary and lacking scientific merit, and describe it as a thinly disguised commercial whaling operation. Consequently, the question is looming: Is Japan ready to sacrifice once again its branding international reputation, putting at stake its obligations as a responsible sovereign state, and risking to cause severe environmental global degradation and harm to human health? The answer is strident: better to be safe than sorry! Francisco Leandro, Associate Professor, City University of Macau