Potential victimized countries can take legal action against Japan

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By Gao Zhiguo
and Qian Jiangtao

The Japanese government made a final decision on April 13 to discharge contaminated radioactive wastewater from the Fukushima Daiichi nuclear plant into the sea. They did this by ignoring the doubts and objections of its neighboring countries and the international community. Japan has acted in defiance of the world, arousing great indignation among Chinese people and an uproar in the international community.
South Korea will be the first country to be directly victimized and it took the lead in responding strongly. South Korea President Moon Jae-in said officials should look into ways to refer Japan’s move to the International Tribunal for the Law of the Sea (ITLOS), including filing for an injunction.
South Korea’s proposal has examples to follow in international judicial practice. In the Pulp Mills on the River Uruguay case, Argentina filed a lawsuit with the International Court of Justice (ICJ), saying that Uruguay failed to inform Argentina of the operations of the pulp mills and failed to prevent pollution. Argentina requested the court to take provisional measures to make Uruguay suspend the construction before the final ruling.
And in the Mox Plant case between Ireland and the UK, Ireland believed that there were hidden dangers behind the UK’s nuclear activities. Ireland submitted the request for provisional measures to the ITLOS to prevent the plant from being put into operation.
In the Pulp Mills on the River Uruguay case, the ICJ ruled that although Uruguay failed to inform Argentina of the operations, it did not pollute the river, so closing the pulp mill was unjustified. But the court also stated that if Argentina prevailed on the merits, Uruguay would bear all risks of having authorized and constructed the mills. Likewise, in the Mox Plant case, the court did not support Ireland’s request. But the court also requested Ireland and the UK to monitor risks and the effects of the MOX plant for the Irish Sea.
Therefore, in terms of Japan’s discharging contaminated radioactive wastewater, it is feasible for South Korea to apply it to the ITLOS or the ICJ for provisional measures, so as to temporarily ban Japan’s decision.
Discharging contaminated radioactive wastewater involves many principles and obligations of international law, and is embodied in many conventions. In accordance with the conventions, Japan shall fulfill its obligations under general international law to protect and preserve the marine environment, and shall cooperate with neighboring countries or countries that will be affected by the discharge of contaminated water from the Fukushima nuclear plant to implement international rules and standards applicable to prevent, reduce and control pollution of the marine environment.
In addition, the discharge of contaminated radioactive wastewater also involves the responsibility of nuclear safety. As a country having jurisdiction over a nuclear facility, Japan should assume state responsibility for the safety of nuclear sewage under its jurisdiction and the substantial damage that will be caused.
If South Korea applies for provisional measures or files a lawsuit to the ICJ or the ITLOS, though there will likely be a lack of evidence of material harm as in the Uruguay and Mox Plant cases, the international judicial body will also further require the two sides to cooperate, exchange information and examine the impacts and hazards to the marine environment.
However, it should be pointed out that there are obvious shortfalls in South Korea’s discussion of applying for provisional measures. According to Article 283(1) of the United Nations Convention on the Law of the Sea (UNCLOS), “When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.
–The Daily Mail-Global Times News Exchange Item