A Regional Cooperative Regime Should Be Established to Respond to the Radioactive Water Disposal Plan from Fukushima.

• Author: Cheigh, Eugene

Introduction I. Japan's Radioactive Water Disposal Plan and Controversy A. Japan's Radioactive Water Disposal Plan 1. Background 2. Impacts of Radiation on the Marine Environment and Humans B. Controversy over Japan's Radioactive Water Disposal Plan 1. Supportive Positions 2. Opposing Positions II. Japan's Radioactive Water Disposal Plan and International Environmental Law A. Violation of General Principles and Obligations of International Environmental Law 1. General Obligation to Protect and Preserve the Marine Environment 2. The Obligation Not to Cause Transboundary Environmental Harm 3. Prior Notification and Consultation 4. Environmental Impact Assessment 5. The Precautionary Principle 6. Intergenerational Equity B. International Legal Response Under UNCLOS 1. Submitting a Dispute to a Tribunal to Prescribe Provisional Measures. 2. Invoking the Cooperative Duties III. Limits and Challenges Responding to Japan's Radioactive Water Disposal Plan A. Limits of Submitting a Dispute to a Tribunal to Prescribe Provisional Measures 1. Uncertain Outcome 2. Difficulty Proving the Urgency of the Situation 3. Ineffectiveness of Provisional Measures B. Necessity of Establishing a Regional Cooperative Regime 1. Adequacy of Invoking the Cooperative Duties 2. Reasons for Establishing a Regional Cooperative Regime 3. Strategies for Establishing a Regional Cooperative Regime IV. Conclusion Introduction

On April 13, 2021, the Japanese government made plans to release radioactive water from the Fukushima Daiichi nuclear power plant into the Pacific Ocean. (1) According to the disposal plan, starting in approximately 2023, more than one million tons of radioactive water will be significantly diluted and released in small amounts over time. This will allow the utility company, Tokyo Electric Power Company Holdings, Inc. (TEPCO), time to set up facilities and receive approval from nuclear regulators. (2) Japan assured the international community that the disposal poses no safety threats. (3) However, neighboring countries, particularly China, South Korea, and Taiwan, expressed concerns that potential sea pollution and damage to marine life, which eventually affect human health, still exist as a product of Japan's disposal plan. Those countries expressed opposition to the disposal plan shortly after it was announced and are seeking to respond to Japan's decision. (4)

This comment examines how neighboring countries should respond to Japan's decision to release radioactive water from the Fukushima Daiichi nuclear power plant into the Pacific Ocean through international environmental law. Part I details the disposal plan and its controversy among countries and international organizations. Part II explores Japan's potential violation of the general principles of international environmental law, Japan's obligations under the United Nations Convention on the Law of the Sea (UNCLOS) regarding its planned disposal, and two possible actions that neighboring countries may put forward under UNCLOS: (1) submitting a dispute to a tribunal to prescribe provisional measures; and (2) invoking the cooperative duties. (5) Part III points out the limits of submitting a dispute to a tribunal to prescribe provisional measures and emphasizes the necessity of establishing a regional cooperative regime to address Japan's planned disposal. Thus, the ultimate goal of this comment is to present ex ante legal responses to Japan's radioactive water disposal plan.

1. Japan's Radioactive Water Disposal Plan and Controversy

   The Japanese government decided to gradually release radioactive water from the Fukushima Daiichi nuclear power plant into the Pacific Ocean starting in 2023. (6) The International Atomic Energy Agency (IAEA) (7) and the United States (U.S.) support Japan's decision, while neighboring countries, such as China and South Korea, and U.N. human rights experts oppose it. (8) These two positions come up against each other, as illustrated by the use of the terms "treated" and "contaminated" water. (9) Part I examines the details of Japan's radioactive water disposal plan, including its background and impacts of radiation on the environment and humans, and introduces two conflicting stances on the plan.

   1. Japan's Radioactive Water Disposal Plan

      1. Background

         In March 2011, a magnitude 9.0 earthquake caused a tsunami that flooded the Fukushima Daiichi nuclear power plant's critical control equipment, triggering a meltdown. (10) Now Japan cools the destroyed reactor blocks with water pumped from the sea to prevent further nuclear meltdowns. (11) The radioactive water generated during this process goes through an advanced liquid processing system (ALPS) that strips charged particles, other than tritium, out of the water for storage in large tanks. (12) However, those tanks are expected to be full by 2022.13 Therefore, Japanese government subcommittee proposed and examined five options for disposing of the ALPS-treated water: (1) geosphere injection; (2) discharge into the sea; (3) vapor release; (4) hydrogen release; and (5) underground burial. It then concluded that "discharges into the sea and vapor release are the practical options, both of which have precedent in current practice." (14) Following the recommendations of the subcommittee, "Japan ... decided to dispose of the massive amounts of the [ALPS]treated water ... stored in tanks at the wrecked Fukushima Daiichi nuclear power plant by releasing it into the Pacific Ocean," which is the cheapest and quickest option. (15)

      2. Impacts of Radiation on the Marine Environment and Humans

         The Japanese government owed to ensure "more than adequate" compliance with safety standards and announced that the tritium in the water left over from the ALPS poses little health risk in low concentrations and "will be diluted to less than 1,500 becquerels per liter, one-40th of the concentration permitted under Japanese safety standards and one-seventh of the World Health Organization's guideline for drinking water." (16) However, there are doubts about how effective the ALPS will be and that the potential dangers of tritium in the water are being ignored. (17) These doubts and dangers arise because the first ALPS application failed to completely remove radioactive concentrations in most of the water stored in Fukushima's tanks, and "scientists warn that tritium in water organically binds to other molecules, moving up the food chain affecting plants and fish and humans." (18)

         Harmful impacts of radiation on the marine environment and humans from Japan's planned disposal are to be anticipated. In the year of the disaster, seawater samples taken near the Fukushima Daiichi nuclear power plant showed elevated levels of radioactive isotopes due to leaks from the power plant. (19) It seems that the leaks have continued, (20) and the radioactivity levels have not decreased. (21) Therefore, releasing massive amounts of radioactive water according to the plan would further increase the radioactivity levels and affect seawater in neighboring countries due to the Pacific current circulation. (22) Given that the ALPS does not guarantee complete removal of radioactive concentrations in the water, radiation in seawater by the planned disposal will harm and kill ocean animals, "creat[e] bizarre mutations in their offspring, or pas[s] radioactive material up the food chain." (23) Moreover, it is well-documented that radiation attacks human DNA, causing problems in replication or illnesses like cancer. (24) For example, high radiation doses from the 1986 Chernobyl accident caused Acute Radiation Syndrome and 6,000 cases of thyroid cancer, especially among exposed children and adolescents. (25) Japanese researchers also found a statistically significant relationship between radiation doses and 187 cases of thyroid cancer in children after the 2011 Fukushima disaster. (26)

   2. Controversy over Japan's Radioactive Water Disposal Plan

      1. Supportive Positions

         Japan requested an IAEA review of the management of water stored in tanks at the Fukushima Daiichi nuclear power plant, and included a report by the Japanese government's subcommittee. (27) The IAEA Review Team concluded that the subcommittee's recommendations were "based on a sufficiently comprehensive analysis and on a sound scientific and technical basis," and that "vapor release and discharges into the sea were both technically feasible." (28) It also acknowledged that these two options are "routinely used by operating nuclear power plants worldwide under specific regulatory authori[z]ations based on safety and environmental impact assessments." (29) The IAEA welcomed Japan's decision to release radioactive water into the Pacific Ocean and said it was "ready to provide technical support in monitoring and reviewing the [disposal] plan's safe and transparent implementation." (30) The U.S. expressed support for Japan's decision as well, saying "Japan weighed the options and effects" related to the management of the ALPS-treated water, was transparent about its decision, and appeared to have adopted an approach in accordance with globally accepted nuclear safety standards. (31) However, not all countries agree.

      2. Opposing Positions

         Japan's neighboring countries, such as China and South Korea, strongly oppose Japan releasing "radioactive water that has accumulated at the crippled Fukushima Daiichi nuclear power plant" into the Pacific Ocean. (32) China voiced grave concern over the marine environment, food safety, and human health, stating Japan "unilaterally decided to release the Fukushima nuclear wastewater into the sea before exhausting all [safer] disposal [options] and without fully consulting with neighboring countries and the international community." (33) China urged Japan to reevaluate the issue and "refrain from wantonly discharging the wastewater before reaching consensus with all stakeholders and the IAEA through full consultations." (34)

         South Korea...