[front note] on August 24, 2023, the Japanese government ignored the strong doubts and opposition of the international community and unilaterally and forcibly started the discharge of water polluted by the Fukushima nuclear accident. China firmly opposes and strongly condemns this, and has made solemn representations to the Japanese side, demanding that the Japanese side stop this wrong behavior. The disposal of Fukushima nuclear contaminated water in Japan is a major nuclear safety issue with cross-border implications and is by no means a private matter for Japan. Since the peaceful use of nuclear energy by mankind, there is no precedent for man-made discharge of water polluted by nuclear accidents into the sea, and there is no generally accepted standard for disposal. The Fukushima nuclear accident that occurred 12 years ago has caused a serious disaster, releasing a large amount of radioactive material into the ocean. The Japanese side should not cause secondary harm to the local people and even the people of the world out of self-interest.

The presentation of 1. issues

On March 11, 2011, a strong earthquake occurred in the northeastern waters of Japan and triggered a tsunami. A catastrophic nuclear leak occurred at the Fukushima Daiichi Nuclear Power Plant. Tokyo Electric Power Company injected a large amount of cooling water to reduce the temperature of the nuclear reactor, and then produced radioactive substances. sewage. The Fukushima nuclear accident is the highest level 7 nuclear accident in the National Nuclear Incident Classification Standard (INES). It conforms to the norms of international law and environmental ethics. Proper disposal of nuclear wastewater has become an unprecedented challenge. The wastewater from the cooling process of fuel fragments in nuclear reactors is purified by "multi-nuclide removal equipment" (ALPS), but tritium and other radioactive materials cannot be removed. As of the end of July 2019, about 1.1 million tons of nuclear sewage were kept in storage tanks. On April 13, 2021, the Japanese government, in spite of doubts and objections at home and abroad, unilaterally decided to discharge Fukushima nuclear sewage into the sea without full consultation with neighboring countries and national society, and discharged the nuclear sewage into the sea at 12 noon Beijing time on August 24, 2023. The Japanese government's act of discharging nuclear sewage into the sea out of the short-term cost of self-interest will not only cause environmental damage, but also cause problems in international law, including violation of the principles of general international law and international treaties signed and acceded to by Japan. Therefore, by combing the international treaties and principles of international law that may be violated by the discharge of nuclear sewage from Japan, this paper analyzes the problem of the discharge of nuclear sewage from Japan and puts forward the measures that may be taken to deal with the problem of the discharge of nuclear sewage from Japan.

2. the possible harm caused by the discharge of nuclear wastewater into the sea in Japan

ALPS is key in the Japanese government and TEPCO's nuclear contaminated water discharge program. Japan insists that the nuclear contaminated water treated by ALPS is "treated water" and believes that the "treated water" has reached the standard and can be discharged. But according to China Daily, nuclear wastewater is different from nuclear-contaminated water. Nuclear wastewater refers to the wastewater produced in the normal daily activities of nuclear power plants, such as water used to cool critical parts of nuclear power plants. This water will not come into contact with radioactive materials in the nuclear reactor. After strict treatment, it can be removed through pipelines. Nuclear contaminated water is water that was in direct contact with radioactive materials in the reactor during the accident and is highly radioactive due to contamination. This kind of water must be strictly stored, treated by multiple processes and evaluated by experts before it can be discharged into the ocean, otherwise the ecological risk it brings will be immeasurable. And on August 24, 2023, the Ministry of Ecology and Environment (National Nuclear Safety Administration) on Japan to start Fukushima and contaminated water discharge to answer a reporter's question, said: the Japanese government forced to start Fukushima nuclear contaminated water discharge to the sea ...... The wording used is also "nuclear contaminated water". Therefore, Japan's discharge of nuclear sewage with nuclear radiation. Nuclear radiation also refers to the flow of particles (usually only alpha particles, beta particles and neutrons) and electromagnetic radiation (gamma radiation) emitted during the transformation of atomic nuclei. Among them, the penetrating power of α and β rays is weak, which can be blocked by an ordinary brick or paper, but it is more harmful to enter the human body; while the penetrating power of gamma rays is much stronger than that of the first two rays, which can penetrate cement walls tens of centimeters thick, making it more difficult to protect. [1] In view of the destructive and dangerous nature of nuclear radiation, international law has defined it as a dangerous substance. According to an official report from Japan, most of the treated water at the Fukushima nuclear power plant did not meet the expected treatment standards. In this case that does not meet the treatment standards, the unauthorized discharge of nuclear sewage into the sea will undoubtedly cause great harm to the ecological environment and human health. Includes:

(I) continues to affect the environment. Other pollutants, such as chemical pollutants, can be degraded naturally in the natural environment. However, nuclear pollution has the characteristics of potential, long-term and intergenerational, and natural conditions cannot affect the structure of radioactive materials. Therefore, compared with the pollution caused by other pollution sources, nuclear pollution lasts longer. Therefore, from the perspective of time dimension, Fukushima nuclear sewage pollution lasts for a long time, which can not guarantee the quality of natural resources that the next generation should have and the contemporary generation, which not only destroys the equity within generation, but also destroys the equity between generations.

(II) have a bad impact on the local people in Japan and neighboring countries. The ocean around Fukushima is not only a fishing ground for local fishermen, but also a part of the Pacific Ocean and even the global ocean. The discharge of nuclear sewage into the sea will affect global fish migration, pelagic fisheries, human health, ecological security and other aspects. Therefore, this issue is not just a domestic issue in Japan, but an international issue involving global marine ecology and environmental security.

(III) lead to marine life will therefore be on the verge of death or in a bad state. If the cost of marine ecological restoration cannot be paid in time, nuclear sewage discharge will destroy the entire marine ecosystem, seriously affecting the safety of people's lives and property and the sustainable development of the global economy.

To sum up, Japan's nuclear sewage discharge into the sea is a serious infringement on human environment, development and common property, which will damage the overall interests of mankind.

3. Japan's act of discharging nuclear sewage into the sea violates the principles and obligations of international law

The draft articles on the responsibility of States for wrongful acts of States provide that every wrongful act of a State gives rise to the State responsibility of that State, I .e., the State responsibility of that State arises if "an act consisting of an act or omission is attributable to that State under the law of the State and the act constitutes a breach of an obligation of that State. [2] The Japanese government held a cabinet meeting on April 13, 2021 and decided to discharge nuclear sewage into the sea. This move undoubtedly belongs to Japan. This part will explain that Japan's nuclear sewage discharge violates the principles and obligations of international law in terms of the illegality of Japanese nuclear sewage discharge into the sea and the fact that there is no exemption for Japanese nuclear sewage discharge into the sea.

(I) the wrongfulness of Japan's nuclear sewage discharge into the sea

1. Violation of the principle of non-harm to the environment of other States. The basic connotation of the principle of non-harm to the environment of other States refers to the obligation of States to ensure that activities within their jurisdiction or control do not cause environmental damage to other States or beyond the jurisdiction of States. [3] This principle was first proposed in the Stockholm Declaration on the Human Environment in 1972, which stipulates that in accordance with the Charter of the United Nations and the principles of international law, countries have the sovereign right to develop their own resources in accordance with their own environmental policies; and have the responsibility to ensure that they are under their jurisdiction or The activities within the control do not cause damage to the environment of other countries or areas beyond the jurisdiction of other countries. The principle that the use of one's own property should not harm the property of others is not to harm the foreign environment is a basic principle of international law in the field of the environment. And the principle has also been repeatedly invoked in international judicial decisions, such as the Corfu Channel case and the Trail Smelter case. It can be seen that the principle of not harming the environment of other countries has gradually become a basic principle of international law, and the nuclear sewage discharged by Japan into the ocean will spread to other parts of the world through the ocean currents in its surrounding waters, which will cause environmental pollution and damage to other regions except Japan. There is no doubt that this principle is violated.

2. It violates the principle of risk prevention. The precautionary principle was born in the 1960 s from a view called the "implementation margin",[4] which argued that there was a realistic disconnect between the implementation of the legal system and the objectives of environmental policy, and that there was a need to find ways to remedy this "disconnect. The essence of the precautionary principle is to emphasize that when there is a risk of environmental issues occurring or occurring, the lack of scientific clarity should not be used as a reason to limit the implementation of necessary measures to prevent and control environmental disasters. [5] Nowadays, the concept of the precautionary principle is embodied in many conventions, such as the High Seas Convention, the London Convention, the Vienna Convention and the Montreal Protocol. And the principle has gradually been incorporated into the application of national law, such as "request to investigate the situation case", "southern bluefin tuna case" and so on. And does Japan's discharge of nuclear sewage into the sea violate the precautionary principle? Although the harm caused by nuclear sewage discharged into the sea to human beings has not been clearly revealed, it is conceivable that nuclear pollution damage is a typical pollution damage that is difficult to remedy in modern society, and the incident does not lack scientific basis. after all, it is certain that the harm of tritium and other radioactive isotopes to human beings, the diffusion and harm of cesium 137 are all confirmed by relevant experiments. Therefore, Japan can be found to be in violation of the precautionary principle.

3. Violation of the United Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS). The Convention on the Law of the Sea has an important guiding role in the treatment of marine environmental pollution. Article 192 of UNCLOS clearly establishes the obligation of States to protect and preserve the marine environment. Japan, as a State Party to the United Nations, should take all necessary measures to prevent and control pollution of the marine environment from any source. At the same time, article 195 of UNCLOS provides that actions taken by States in taking measures to prevent, reduce and control pollution of the marine environment shall not, directly or indirectly, transfer damage or risk from one area to another or transform one type of pollution into another. After Japan discharges the nuclear sewage from the Fukushima nuclear power plant accident into the ocean, it will inevitably spread to the waters outside the waters under the jurisdiction of Japan under the action of ocean currents, causing pollution in Japan's territorial waters and the seas of neighboring countries. Therefore, Japan unilaterally decided to discharge nuclear sewage into the sea in accordance with its domestic law, in violation of the obligations of the Convention on the Law of the Sea on the protection of the marine environment.

4. Violation of the Convention on Nuclear Safety. The Convention on Nuclear Safety stipulates that States parties shall conduct regular safety inspections of nuclear equipment under their jurisdiction. When it is found that the safety factor of relevant nuclear equipment does not meet the standard, necessary measures must be taken in time to improve it. In an emergency, the operation of nuclear equipment must be stopped immediately. Japan's Fukushima nuclear power plant units are over-age units. The Japanese government has failed to conduct safety inspections and supervision in a timely manner, and should be responsible for nuclear safety. [6]

5. Violation of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter prohibits the dumping of wastes or other matter, except for those which may be dumped under Annex I. The Fukushima nuclear sewage that Japan plans to discharge into the sea does not belong to the dumpable substances listed in Annex I of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The discharge of Fukushima nuclear sewage into the sea violates the The legal obligations stipulated in the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.

(II) Japan does not have an exemption recognized by international law.

It is generally recognized under international law that force majeure, prior consent, distress and emergency are exemptions from State responsibility. [7] However, Japan's discharge of nuclear wastewater does not meet the above exemption:

1. does not constitute force majeure. A State is not considered wrongful under international law if it is physically unable to perform an international obligation that it has assumed because of an irresistible force or because of the occurrence of events beyond its ability to anticipate and control. In other words, a State does not incur legal responsibility under international law for such acts. However, force majeure must be an unforeseen external factor that makes performance of the obligation de facto impossible. The exception does not apply if the situation arises from the act of the State itself, alone or in combination with other factors, or if the State assumes that the danger is occurring without proof. The Japanese government's decision to discharge nuclear sewage into the sea has the subjective initiative of the country. In the case of other disposal plans, the discharge of nuclear sewage into the sea is not the only choice. Therefore, Japan's behavior does not meet the constitutive elements of force majeure to avoid wrongfulness.

2. Without prior consent. Prior consent refers to the effective consent of the polluting State to the exercise of a particular act contrary to its international obligations, but the application of "prior consent" in order to exempt from liability requires three prerequisites, namely, legality, authenticity and validity. [8] The discharge of nuclear sewage into the sea is an act that destroys the major environmental interests of all mankind. Of course, it is not legal. Moreover, China, South Korea and other neighboring countries have publicly opposed the discharge of Japanese nuclear sewage into the sea. Although the United States claimed that Japan "seems to have adopted practices that meet globally recognized nuclear safety standards" and that Japan "has always been transparent about its decisions", on the other hand, the US Food and Drug Administration issued a warning banning the import of Japanese food. [9] Thus, the United States acted paradoxically and should qualify as invalid consent. Therefore, there is no prior consent exemption for Japan's nuclear sewage discharge.

3. Non-distress and emergency. Crisis refers to the act of an organ or individual performing official duties on behalf of the state, in order to save his life or the lives of other people under his guardianship, as the only choice, which is not in line with the international obligations of the state. The state of emergency refers to the necessary behavior taken by a country to deal with or eliminate this serious and urgent dangerous situation when it encounters a situation that seriously endangers the survival and fundamental interests of the country. At the same time, the act is the only way to protect the fundamental interests of the State in the circumstances and does not seriously harm the fundamental interests of the State to which the obligation is owed and of the international community as a whole. In both of the above-mentioned special cases, the wrongfulness of the State's conduct is excluded. However, for the sake of economic interests, the Japanese government has chosen the most economical and labor-saving way to discharge the sea. The act will have a negative impact on neighboring countries and the entire international community, and is an internationally wrongful act that does not conform to the basic interests of the entire international community.

In summary, Japan's discharge of nuclear sewage into the sea violated the relevant principles and obligations of international law, and must bear the national responsibility arising from the wrongful act in international law, and the national responsibility that it should bear includes cessation of the wrongful act, compensation, restitution, and compensation. Wait.

4. measures to deal with the discharge of nuclear wastewater from Japan

The Japanese government's discharge of nuclear sewage into the sea will undoubtedly cause irreparable damage to the ecological environment. And for the affected countries, what measures should be taken to deal with this behavior?

(I) countries should fully consult and call on Japan to end the discharge of Fukushima nuclear sewage into the sea. As mentioned above, the issue of Fukushima nuclear sewage discharge to the sea is a major international issue involving the safety of the global marine ecological environment, and this issue must not be regarded as a domestic issue that Japan can handle independently. According to reports, Japan plans to discharge nuclear sewage for 30 years. Regarding this kind of behavior that continues to damage the world's marine environment, all countries should fully consult and call on Japan to shoulder the burden of international responsibility, shoulder the burden of the interests of neighboring countries and the common interests of the international community, and immediately stop serious damage to the safety of the marine ecological environment and the people of neighboring countries. The act of discharging the sea in the vital interests of the people adopts other disposal plans to safeguard the common homeland of mankind.

(II) international institutions as a whole. According to the provisions of Part XV of UNCLOS, it is a feasible measure to apply to the International Tribunal for the Law of the Sea for interim measures to request the International Tribunal for the Law of the Sea to suspend the discharge of Japanese nuclear sewage before it makes a final judgment. There are also judicial practice precedents of the International Tribunal for the Law of the Sea, such as the Uruguay River Pulp Mill case and the Irish Mox Factory case. In addition, some scholars have suggested that they can learn from the nuclear test case of New Zealand and Australia v. France, and the case of nuclear pollution damage caused by the crash of a Soviet nuclear-powered satellite in Canada, and other international law cases involving nuclear issues, and bring lawsuits to the International Arbitration Tribunal and the International Court of Justice. Resolve possible disputes. [10]

(III) may establish a subrogation system for pollution from nuclear sewage discharged into the sea. The system of subrogation was first applied in insurance law, and in some famous modern cases, subrogation claims are considered to be a default clause in insurance contracts. [11] The system of subrogation is one in which the State acquires the right of subrogation by first paying damages to the victim, after which the State recovers from the State of origin. Subrogation claims and claims in civil law are consistent in nature, are the main change of debt, the principle of loss compensation and the principle of fairness is its legal basis. [12] In the dispute of compensation for marine environmental damage caused by nuclear sewage discharge, the affected countries can establish a legal system of subrogation, and the non-responsible party of nuclear sewage discharge or the liability insurer should advance the compensation for marine environmental pollution damage, and after the non-responsible party or the liability insurer fulfills the obligation of compensation, they have the right to place themselves as the victims of marine environmental pollution, to recover the relevant payment from the person responsible for the pollution damage to the marine environment.

Note: The above content is only the author's personal point of view, if there is any improper, welcome criticism and correction.

References:

[1] Huang Shunxiang, Tang Lijuan: "Nuclear Radiation Hazards and Protection", "Health Care for the Middle-aged" No. 6, 2011.

[2] Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts.

[3] Lin Canling, "Research on Liability and Compensation for Transboundary Damage", China University of Political Science and Law Press, 2014 edition, p. 25.

[4] Zhu Jiangeng, "Research on the Principle of Risk Prevention in Marine Environmental Protection", Ph.D. thesis of China University of Political Science and Law, 2005.

[5] Niu Huizhi, "A Study of the Precautionary Principle-Efforts and Controversies in National Environmental Law to Address Environmental Risks with Lack of Scientific Evidence", Taiwan University Law Series, No. 3, 2005.

[6] Hua Feng, Du Juntao, Zheng Xuntao, "Current Situation and Development Trend of Nuclear Instrument Technology for Nuclear Power Plant Reactors", Nuclear Electronics and Detection Technology, No. 4, 2019.

[7] Zhu Xiaoqing, Editor-in-Chief: International Law, Social Science Literature Publishing House, 2005 edition, p. 50.

[8] Wu Yarong, State Responsibility and Its Realization in the Field of International Environmental Protection, Law Press, 2011, p. 98.

[9] "What operation? The United States while" supporting "Japan, while banning the import of Japanese food ......", in China Youth Network, https://baijiahao.baidu.com/s?id=1697109073810040412&wfr=spider&for=pc 。

[10] Guo Ping, Yu Hanming, "Current Situation and Analysis of Academic Research on Legal Issues of Fukushima Nuclear Sewage Discharge in Japan", Journal of Ocean University of China (Social Science Edition), No. 3, 2023.

[11] Sun Yi, "On the System of Subrogation", 2006 Master's Thesis, University of International Business and Economics.

[12] Zhang Bao, "The Nature and Positioning of the Government Claims System for Ecological Environmental Damage", Modern Law, No. 2, 2020.