A Law of the Sea perspective on the discharge of nuclear wastewater-using Fukushima as an example

Abstract

In the tenth year after the Fukushima nuclear power plant accident caused by the Great Earthquake in Japan, the Japanese government announced that it would discharge nuclear wastewater into the sea in 2023, which is this year. According to recent news, Japan has completed an undersea pipeline and is preparing to officially discharge nuclear wastewater into the sea through the pipeline at the end of this month, which is expected to last for 30 years. As the second level seven accident in the history of nuclear accidents, Fukushima, however, did not choose to control the spread of radioactive substances through the construction of a sarcophagus, as was the case at the Chernobyl nuclear power plant, but chose to increase the spread of radioactive substances by discharging them into the sea, which in turn affected all parts of the globe, putting the global marine environment at risk from radioactive materials. The construction of submarine pipelines by Japan for the discharge of nuclear wastewater has created controversy in defining the legal nature of nuclear wastewater discharges. Although it has been established that the discharge of nuclear wastewater is a land-based source of pollution under UNCLOS, there are several uncertainties in the discussion of whether it is a dumped waste, first, whether “other man-made structures in the sea” includes pipelines, and secondly, whether the length of the pipelines exceeds the baseline of the territorial sea of Fukushima. Although it cannot be said with certainty that the discharge of nuclear wastewater into the sea constitutes dumping, the discharging State (Japan) cannot evade its legal responsibility. As Party to UNCLOS, States should take the responsibility to protect and preserve the marine environment. And, States should be a good neighbour, ensure the activities under their jurisdiction or control do not cause damage to other States and their environment. Further, all measures should be taken to prevent, reduce and control pollution of the marine environment from any source. Discharging States should also actively participate in international cooperation by notifying other States in a timely manner when pollution will harm or has harmed their marine environment and by initiating the exchange of information and data. An environmental impact assessment is made prior to the discharge of nuclear wastewater, which is also continuously monitored during the discharge process, and these reports are regularly submitted to the competent international organizations. Last but not least, to formulate and implement national laws and regulations in accordance with internationally recognized standards in order to prevent, reduce and control pollution. Neighboring affected countries of the discharging State and other countries in the world can actively cooperate not only in monitoring the discharging State, but also in seeking help from international judicial bodies, for example, by submitting a request for provisional measures to stop the discharge of nuclear wastewater. The legal regime is not a blank slate when it comes to nuclear wastewater discharges, but there are still some gaps that need to be filled. For example, with regard to land-based sources of pollution, there were no global binding standards or treaties, and with regard to dumping, there was no clear interpretation of “other man-made structures at sea”. These gaps need to be filled by the cooperation of countries around the globe.