Does Fukushima wastewater decision violate our environmental rights?

Japan’s recent decision to release more than one million tons of treated wastewater collected at the wrecked Fukushima Daiichi nuclear powerplant has aroused intense controversy both locally and internationally. Opposition and condemnations are expressed not only by local fishermen and fishing industries, but also strongly by its neighbouring countries, especially China and South Korea. A key problem of Japan’s decision to release Fukushima wastewater is that this water, although it has been treated with a purification system, still contains dangerous radionuclides, including tritium, carbon-14 and strontium-90. Consequently, to discharge this water into ocean poses a severe threat to oceanic environment and all the lives that are associated with it.

Another problem is that there will be much more contaminated water to be accumulated in the future, in addition to the present one million tons water in tanks. This is a result of the continuous need to use water to cool down the melted reactor cores until the mid-2050s, as well as to process the groundwater/rainwater that enter into reactor buildings. To implement the current decision would imply a green light for releasing all these accumulated water in the future. The negative impacts are upon many more generations to come, locally and around the world.

The health of human, animal and the environment are intertwined. Human rights and the environment are also inseparable. From the perspective of environmental rights, this blog post tries to map out the most relevant human rights in the current event. Does Fukushima wastewater decision violate our environmental human rights? The answer is yes and the following paragraphs explain why.

Indigenous Peoples’ rights

Before visiting several of the most relevant human rights, it shall be made clear that international human rights are established for all human beings without discrimination. However, there are some human rights principles and norms adopted with a particular focus on certain groups, e.g., Indigenous Peoples, minorities, women and children. The reason is that these groups and individuals are often more vulnerable to certain threats and some (mostly Indigenous Peoples) have suffered historical injustices during colonial times. In the current event, the Ainu People of Japan, an officially recognised Indigenous People since 2008, merits special attention. The releasing of more than one million tons of treated wastewater would undoubtably harm their traditional fishing practice— an integral part of their cultural life and identity.

The following discussion about the right to dignity, culture as well as to consultation and free, prior informed consent, focuses on Indigenous Peoples. However, readers will notice that these rights are not exclusively established for Indigenous Peoples, but also for minorities and local communities in certain contexts.

Right to dignity and culture

Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides that persons belonging to minorities shall not be denied the right “to enjoy their own culture”. The 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) also affirms that Indigenous Peoples have the right to “practise and revitalize their cultural traditions and customs” (Art. 11) and to “dignity and diversity of their cultures” (Art. 15). The UNDRIP also recognises in its Preamble that the respect for Indigenous knowledge, cultures and traditional practices would contributes to “sustainable and equitable development and proper management of the environment”.

Culture is a dynamic term in human rights law. The realisation of the right to dignity and culture often has fundamental connections with the environmental surroundings and natural resources of Indigenous and minority communities, as they support Indigenous and minorities’ ways of life (CCPR General Comment No. 23).

One of the most important aspect of the human right to culture is about State’s duty to ensure the enjoyment of Indigenous Peoples and minorities’ cultural life. This include State’s responsibility to consult with Indigenous Peoples and minority communities prior to any proposed initiatives that are likely to affect them, as established in the Länsman et al v Finland (1994) and Jouni E. Länsman et al v Finland (1996 and 2005).

Needless to say, the decision to discharge the Fukushima wastewater would require prior consultation with local and neighbouring Indigenous Peoples and communities. As noted, to release the water into ocean is likely to cause irreparable damage to the cultural and the traditional ways of life for local fishery communities. The human rights obligation of the Japanese Government requires effective and meaningful consultation process to be duly performed.

Rights to consultation and free, prior informed consent

Free, prior, and informed consent (FPIC) refers to engagement and participation of Indigenous Peoples, minorities and local communities in decision-making process of projects that might affect their rights. The rights to consultation and FPIC constitute an integral part of the human right to dignity and culture. Indeed, it is difficult to image that any person or group could fully enjoy their cultural life if decisions directly relating to their interests are taken without their informed consent.

The Japanese Government seems not to have a very good record of respecting Japanese Ainu’s right to FPIC. In February 2010, the Mombetsu city government in Hokkaido prefecture authorised plans to build an industrial waste dumping site near the Mobetsu River, a sacred salmon spawning site for Ainu, without obtaining their FPIC. In October 2020, two municipalities in Hokkaido prefecture, the Suttsu and the Kamoenai, applied for to be considered as a final disposal site for highly radioactive waste from nuclear powerplants in exchange for government subsidies—a decision that also lacks Ainu People’s FPIC. With respect to the current Fukushima decision, there is no evidence to show that Japan has duly consulted with the Indigenous Ainu or obtained the FPIC from them or other local communities.

The role and function of the right to FPIC is explicitly established in international human rights law, often as a procedural safeguard to substantive rights, such as the rights to food, health and culture. For instance, Article 32 of the UNDRIP requires States to consult and cooperate in good faith with Indigenous Peoples through their own representative institutions in order to obtain FPIC prior to the approval of any project affecting their resources.  This concerns in particular storage or disposal of hazardous materials. In light of the UNDRIP, the Government of Japan is obliged to consult with its Indigenous Peoples in order to obtain their FPIC before adopting and implementing any domestic measures with respect to discharge Fukushima wastewaters (Art.19).

Some might argue that the UNDRIP is not a binding instrument; therefore, does not provide binding obligations. While the normative status and importance of the UNDRIP leads to a whole new debate, it would suffice here to say that pertaining to the establishment of the human rights to consultation and FPIC, the UNDRIP is definitely not alone. Just to name a few other relevant instruments, binding and non-binding, there are the 1989 Indigenous and Tribal Peoples Convention under the International Labour Organization, the ICCPR General Comment No. 23 on the rights of minorities and the CERD General Recommendation No. 23 on the rights of Indigenous peoples.

States’ duty to ensure FPIC has been gradually recognised under the jurisprudence of various regional human rights courts and the UN human rights treaties bodies, especially the Human Rights Committee (HRC), the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Elimination of Racial Discrimination (CERD). The use of the term is also changing from “prior informed consent” to “free, prior informed consent” to imply that such consent must not be obtained by coercion. Numerous cases and concluding observations can be studied for a better understanding of State’s responsibility in this regard. These include, inter alia, the Poma Poma v Peru case (2009), the Saramaka case (2007) and the Endorios case (2010) .

In scholarly discourse, Doyle and Barelli have demonstrated that FPIC constitutes an emerging principle of international human rights law. Overall, its role in safeguarding Indigenous Peoples, minorities and local communities’ fundamental human rights is increasingly recognised by many international organisations, judicial and quasi-judicial bodies and numerous domestic laws.

Right to a safe, clean, healthy and sustainable environment

On a more general level, the Fukushima wastewater decision is against the spirit and normative requirements of the right to a safe, clean, healthy and sustainable environment. And this is not only about Indigenous Peoples and minority groups, but the entire humanity as a whole.

In October 2018, the UN Special Rapporteur on human rights and the environment Mr. David Boyd presented the report (A/73/188) of the right to a healthy and sustainable environment to the UN General Assembly. This report is based on the Framework Principles on Human Rights and the Environment developed by his predecessor, Mr. John Knox. The Framework Principles set forth human rights obligations for both States and business to ensure right of every person to a safe, clean, healthy and sustainable environment. This means that, after a decade-long endeavour to include the environmental right into the human rights regime, a formal UN-level recognition of a fundament human right to environment is finally on the horizon.

This historical shift indicates the increasing international recognition of the interdependent relationship of human rights and the environment worldwide. In fact, the content of a right to environment has already been elaborated through several important paths: the application of fundament human rights (such as to life, health and culture) vis-à-vis environmental issues, as has already been discussed above; and the inclusion of procedural requirements in environmental treaties (such as FPIC in the Convention of Biological Diversity and its Nagoya Protocol). The recognition of a right to environment is also evident in numerous domestic and regional laws and regulations.

With respect to Japan, it has been ranked as “Good” in Environmental Democracy Index by an assessment conducted in 2014. Specifically, Japan is among the first few countries that has included in its national legal and administrative framework a right to participation of environmental-related decisions and a right of access to information about environmental issues. However, in the current event, it is difficult to observe that Japan has indeed implemented these laws or regulations to a sufficient extent.

The obligations of States to respect, protect and fulfil a globally recognised right to environment have three dimensions: substantive obligations, procedural obligations and obligations relating to those in vulnerable situations. In accordance with the Framework Principles, the Government of Japan as well as the operator of Fukushima nuclear powerplant, the Tokyo Electric Power Company (TEPCO), are obliged to provide public access to information on a full account of the potential impacts of Fukushima wastewater (Principle 7). They should also conduct prior assessment of the possible environmental impacts of this decision, including their potential effects on the enjoyment of human rights (Principle 8), in particular by a liable and neutral body (note the criticism of the neutrality of the International Atomic Energy Agency). Most fundamentally, Japan should provide for and facilitate public participation in Fukushima wastewater-related decision-making process, especially the views and the consent of the Indigenous Ainu and other traditional communities (Principle 9). This connects to the requirement that Japan should take additional measures to protect the rights of those who are most vulnerable to radioactive harm (Principle 14). In addition to the Indigenous Ainu, the human rights of children worldwide should also be taken into account as they are more sensitive to radiation and are at higher risk of radiation-related cancers of certain tissues (as noted by the independent UN experts on 11 March 2021).

To conclude, Japan’s international human rights obligations require it to reconsider the decision to discharge Fukushima wastewater into ocean. This includes to re-assess the feasibility and efficiency of other possible means for handling the tritiated wastewater, such as geosphere injection, vapor release, hydrogen release, underground burial, and long-term storage (different options were summarized by The Tritiated Water Task Force in 2016) and to adopt the best available technology to minimise radiation hazards by storing and processing the water (e.g., alternative technology by using ion exchange technology from U.S. supplier Purolite instead of the current Advanced Liquid Processing System operated by Toshiba and Hitachi General Nuclear Electric).

Essentially, how to deal with the Fukushima wastewater is a global concern not only because it impacts our shared oceans and seas, but also because it poses severe risks to our fundamental human rights. Specifically, Japan should take into account the human rights of Indigenous Peoples, minorities and vulnerable persons into account during its decision-making process, which requires proper consultation with traditional groups whose life might be affected and that their FPIC is obtained when applicable. Only in this way, our substantive rights to health, culture and essentially, to a safe, clean, healthy and sustainable environment, could be fully respected, protected and fulfilled.