Opposing discharge plan shouldn't be taken lightly

Despite the concerns of other nations, Japan has yet to reconsider its unilateral decision to discharge radioactive wastewater of the Fukushima Daiichi Nuclear Power Plant into the Pacific Ocean.

Worried about the discharge plan, Russia, China, the Democratic People's Republic of Korea, the Republic of Korea, the Philippines, New Zealand, Mexico, the Dominican Republic, Nicaragua, Honduras, Guatemala and Pacific Island nations have voiced their concerns. Environmental groups and local residents of Fukushima and Japanese fishermen have also expressed their objections.

Japan plans to release more than 1 million metric tons of contaminated wastewater into the Pacific Ocean over the next 30 years, with the first discharges beginning in about two years.

There are several reasons why Japan's discharge proposal has attracted fierce opposition and brought the issue to the forefront of consciousness in other concerned countries and environmental groups.

First, the current support given to the discharge proposal by the International Atomic Energy Agency has not put the worries of the aforementioned countries or environmental groups to rest.

According to Japanese experts, the radiation levels of the discharged water would be negligible, with only tritium, which is not considered harmful in small quantities, left in the water after treatment. The assessment seems to have been endorsed by the IAEA.

But this "unique and complex case", as IAEA Director General Rafael Mariano Grossi described it, entails a big difference between the discharge from normally operated nuclear plants and the discharge of Fukushima's contaminated wastewater. Discharges from the former are mainly from technology and land drainage and contain few fission nuclides. The Fukushima contaminated wastewater, on the other hand, contains a variety of radionuclides-unstable atoms with excess nuclear energy-in the melted reactor core, and these are difficult to treat. Japan has failed to explain away the differences.

Second, common sense indicates that the perceived human health hazard brought about by the discharge is bound to toughen the resolve of many to oppose the disposal plan. In spite of Japan's assurances, the risk to the health of residents in Fukushima, other coastal regions and neighboring countries cannot be eliminated. Japanese fishermen are particularly worried about the adverse effects of the discharge on the marine food chain.

Third, the Tokyo Electric Power Co, the operator of the Fukushima nuclear plant, has a long history of being dishonest on leaks of radioactive elements into groundwater. There are suspicions that the level of tritium being left in the contaminated water will be far higher than its statement, which has led to proposals that an independent body be set up to check tritium concentrations in each tank before its release into the sea.

In response to the intransigent and irresponsible attitude of Japan, the Republic of Korea is considering filing a lawsuit with the International Tribunal of Land and Sea.

Gao Zhiguo, president of the Chinese Society of the Law of the Sea and a former judge of the International Tribunal for the Law of the Sea, suggested that China and the ROK should jointly request a legal advisory opinion from either the International Court of Justice or the International Tribunal for the Law of the Sea.

Gao said a series of principles, norms and obligations of international law, and the precautionary principle can be applied when dealing with Japan's discharge plan. The precautionary principle requires decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain and the stakes are high. Based on the "polluter pays" principle and the principle of state responsibility and compensation, coastal residents of Japan, the ROK and China who would be severely affected by the discharge can form a delegation to file a lawsuit against Japan.

It seems that under the worst-case scenario, the discharge of radioactive wastewater would not constitute "crimes against humanity" as contained in Article 6 of the Rome Statute (1998) of the International Criminal Court.

What is getting harder to ignore is that the broad definition of "crimes against humanity" proposed by the International Law Commission may widen the net by catching any inhumane acts instigated or directed by governments or by any organizations.

According to Article 2 of the draft Articles on Prevention and Punishment of Crimes Against Humanity (2019), inhumane acts would be defined as those committed as part of a widespread or systematic attack directed against any civilian population intentionally causing injury to body or to mental or physical health. Many NGOs support the proposed new definition.

Though Japan may regard this proposal as irrelevant, the shifting international opinion against government-instigated inhumane acts merits considerable attention. Discharging radioactive wastewater irresponsibly into the ocean could end up constituting an inhumane act under the International Law Commission's proposal.

Junius Ho Kwan-yiu is a Hong Kong Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and part-time researcher at Shenzhen University's Hong Kong and the Macao Basic Law Research Center. The views do not necessarily reflect those of China Daily.