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Fukushima Nuclear Waste Water Disputes Continued: International Law in Japanese Court?

Written by Grace Nishikawa and Dr. Marlies Hesselman, https://www.ejiltalk.org/fukushima-nuclear-waste-water-disputes-continued-international-law-in-japanese-court/ 16 Feb 24

On 24^th August 2023, Tokyo Electric Power Company (TEPCO) started releasing the ALPS-treated waste water from the Fukushima nuclear power plant into the Pacific Ocean over a period of 30 years. As discussed on this blog before, here and here, the decision led to strong international responses from neighbouring States, such as China and South Korea, as well as reactions by several UN human rights bodies. One legal question currently attracting attention in several fora, is whether Article 4 of the Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters forbids the ‘dumping’ of the waste water into the sea, because it still contains radioactive matter, such as tritium.

This blog post draws attention to the interpretative controversy under the Londen Protocol by noting that the question is not only on the agenda of the Governing Bodies of the London Convention (LC) and its Protocol (LP), but also of the Fukushima District Court. In September, a group of Japanese citizens initiated a domestic lawsuit calling for an injunction to stop the release of the waste water. Their complaint is in large part based on personal rights under the constitution, but also invokes various international environmental law provisions, including Article 4 LC/LP. This post considers the interpretative controversy at hand, including whether the Japanese courts could play a role in addressing it.

Domestic lawsuit: Citizens v. TEPCO and the State of Japan

In September 2023, 151 Japanese citizens submitted a complaint to the Fukushima District Court against Japan and TEPCO to request an injunction to the discharge. They were joined by more citizens and persons from the fishery sector in November 2023, largely on similar grounds.

Amongst the legal claims of the plaintiffs, such as a violation of the ‘right to a peaceful life’, is Article 4 LP. The plaintiffs argue that this provision prohibits the dumping of all radioactive waste into the sea in its entirety, including from pipelines. Pointing to a recent Note of the Secretariat of the London Convention, the plaintiffs acknowledge that there is currently no agreement on the correct interpretation of the London Convention, but that some States support an interpretation of the Convention to include discharge of waste from pipelines, especially on the basis of a teleological interpretation of the LC/LP.

Possible interpretations of Article 4 LP?

The argument on Article 4 LP is of particular interest, as the matter is currently debated within the Governing Bodies for the LC/LP as well. According to Article 4 LP, Contracting Parties ‘shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex 1’. It is generally understood that the London Convention prohibits the dumping of all radioactive wastes.

In 2021, the Governing Bodies of the LC/LP received three submissions expressing  their concerns about the waste water release from Greenpeace International (document LC 43/11), Republic of Korea (LC 43/11/1) and Japan (LC 43/11/2), as well as ‘extensively discussed’ the matter during a joint session. To guide the parties, the London Convention Secretariat was asked to issue a  legal advice, which was published on 29 July 2022.

The advice considered whether the prohibition to dump radioactive materials into the sea from ‘(other) man-made structures at sea’, would also include discharges from pipelines that protrude from land into the sea.

In considering the matter, the Secretariat explored several interpretative strategies. First, it concluded that, textually, the term ‘man-made structures at sea’ is not defined by the treaties as such. In addition, such an interpretation would also not be supported by later interpretative guidelines, since examples of other ‘man-made structures at sea’ included ‘lighthouses, buoys, and offshore transfer facilities’, but not pipelines.

Then, a broader ‘systemic’ reading of the LC/LP –  especially in light of Article 207 UNCLOS – would also not favour a conclusion that ‘pipelines and outfall structures attached to land may […] count as “man-made structures at sea”. According to the Secretariat, UNCLOS ties pollution from pipelines to ‘land-based pollution’, and land-based pollution has not (yet) been regulated through any international environmental treaty. On the other hand, the Secretariat also noted that the Legal Affairs Office of the IMO provided a somewhat less straightforward advice on the scope of LC/LP and its broader normative environment, by noting that:

the jurisdictional “wall” between LC/LP and land-based sources was less clear than the jurisdictional “wall” between MARPOL and LC/LP, for example. From a legal point of view there seemed no direct borderline between the scope of the definition of dumping as in UNCLOS and LC/LP and the scope of article 207 of UNCLOS. Therefore, the Parties to LC/LP could decide that outfall pipes were “other man-made structures at sea” within the meaning of the definition of “dumping” in LC/LP and take action accordingly, either by amending the Convention to make such a distinction clear, or by a resolution.

Finally, the Secretariat notes that a broader teleological interpretation of the LP might be possible, emphasising its object and purpose, notably protecting the marine environment by banning ‘dumping’ of certain wastes into the sea, i.e. ‘irrespective of the means of dumping and the way in which it enters the sea’. Spain allegedly has defended this interpretation, arguing that: ‘it is the idea of destination and not that of origin which characterizes dumping ‘at sea’ in accordance with the terms of the Convention and with its object and purpose’.

Finally, the Secretariat seems to favour the ‘systemic’ reading in light of UNCLOS and maintains that there is no treaty on land-based pollution as yet. It also stresses that Parties may adopt further agreements to fill the ‘void’; can decide to discuss the matter further within the confines of the Meetings of Parties; as well as that, ultimately, the matter of interpretation of the terms in the LC/LC is up to the Parties together.

Of course, the ‘extensive discussions’ amongst Parties may suggest that there is no consensus on the correct (manner of) interpretation of Article 4. At least one other Party, China, argues that Article 4 prohibits discharges of radio-active waste into the sea from pipelines.

Will Japanese courts shed light on the matter?

The question of the direct effect of international treaties in Japanese courts is not straightforward. Japan generally follows a monist approach to international law, meaning that treaties do not need to be incorporated in national law. However, treaty provisions are not automatically considered to be self-executing in court proceedings: courts may consider the purposes, meaning, and language of the treaties to evaluate if they can be invoked directly. There is some additional evidence that the Japanese Supreme Court is increasingly open to ‘international law-friendly interpretations’ too.

In 2013, the Sapporo District Court decided that certain provisions of the UN Convention on Biodiversity lacked sufficiently concrete obligations to be applied due to their discretionary language, e.g. ‘as far as possible’. However, this court also noted that treaties can still be relevant as interpretative guidelines, and more importantly, an act of Government might be ‘evaluated as illegal and outstepping discretionary powers’, when the ‘action is clearly against the spirit of the treaty’.

Following this line of reasoning, it might be concluded that the prohibitive language contained in Article 4 is in itself sufficiently concrete and unambiguous: it contains a prohibition. Yet, a decision has to be made as to the ‘correct interpretation’ of its exact scope and content. In short, if accepting that Article 4 LP could be self-executing in terms of imposing an prohibition, the Japanese courts will still have to engage with the larger interpretative question at the heart of Article 4 LP. In this sense, it is of interest that the Sapporo-judgment leaves open the possibility for a wider interpretative role of the LP as an ‘interpretative guideline’, and also supports a more teleological assessment of whether the government may act against ‘the spirit of a treaty’. Does the release of the ALPS-treated waste water go against the ‘spirit’ of the LP, i.e. preventing harm to humans and the environment by prohibiting the dumping of certain wastes into the sea, ‘irrespective’ of the exact nature of the ‘man-made structure’ from which the dumping occurs?

In short, there is no doubt that the Fukushima District Court can contribute to this particular chapter of the international debate on the management of the waste water. It can also contribute to domestic case-law on the role of international law in Japanese courts. It is reminded that the plaintiffs invoke a range of different (inter)national legal provisions together, that may be applied and interpreted in conjunction. In light of the rather hesitant attitude of the Japanese courts towards international law generally, it may also well be that the London Protocol controversy is evaded entirely, in the face of other pertinent questions of law and fact posed by the lawsuit.

January 18, 2024 - Posted by Christina Macpherson | Japan, Legal