- JTMS Intern Seyeon Lee
Lessons from Fukushima: Limitations of State Responsibility in Transboundary Water Pollution
Lessons from Fukushima: Limitations of State Responsibility in Transboundary Water Pollution and Environmental Justice
The 2011 Fukushima nuclear crisis resulted in the worst nuclear accident since Chernobyl, causing serious transboundary radioactive pollution of air, soil, and water in nearby countries including South Korea. Since then, a decade has passed and the Japanese government has approved a plan to release the nuclear wastewater into the sea, which has prompted widespread criticism from international actors and neighboring states. UN experts have submitted reports that the wastewater may contain chemicals detrimental to human health such as radioactive carbon-14, strontium-90, and tritium, and countries have made official statements criticizing the decision that discharging over one million tons of nuclear wastewater imposes severe risks to not only the environment but also the enjoyment of human rights of concerned populations in and beyond the borders of Japan.
As seen in the case of Fukushima, transboundary environmental pollution respects no jurisdictional boundaries. Especially since water carries hazardous substances from one nation to another, such transboundary pollution that starts off as a single accident can easily affect the entire world in a short amount of time. However, despite its high possibility of irrevocable damage, governments and the international legal regime have been hesitant to hold other states liable in regard to transboundary environmental damages, apparently preferring to leave these touchy issues to domestic legal systems. Even in the case of the Fukushima Daiichi nuclear disaster, many international legal scholars have pointed out that there are not enough mechanisms under international law to hold Japan liable for failing to protect the environment and the rights of neighboring states. While the discharge of nuclear wastewater can be regarded as transboundary environmental pollution, state responsibility involves the limitation of having to prove a causal relationship as well as the possibility of infringing state sovereignty, and therefore cannot be a sufficient ground for resolving transboundary environmental damage disputes.
In this context, this blog article explores the regime of state responsibility under international law and its relevance to transboundary water pollution through the illustration of the aftermath of Fukushima Daiichi Nuclear Disaster and Japan’s decision to release nuclear wastewater into the ocean. It also examines how the concept of state responsibility in relation to pollution issues requires a new understanding of and approach to environmental justice that are specifically tailored to respond to increasing transnational environmental harm. In doing so, the article adopts an ethical position based on cosmopolitan theories of environmental justice and argue that there is a need to apply cosmopolitan norms of accountability within the environmental rights field, where significance of state boundaries are downplayed and international responsibilities of environmental protection are emphasized.
2. Defining Transboundary Environmental Pollution
The definition of transboundary environmental pollution is:
“pollution whose physical origin is situated wholly or in part within the area under the jurisdiction of one [state] and which has adverse effects, other than effects of a global nature, in the area under the jurisdiction of [another state].”
The general principle of international law reflects that one country should not allow activities within its borders to interfere with activities within another sovereign state’s borders. Thus, the term "transboundary" means that actions within the jurisdiction or control of the country affect other countries, and environmental damage is caused by human behavior as a result of pollution to the environment. While the issue of defining pollution is much more complicated, this blog focuses on land-based pollution. Land-based pollution can be broadly defined as all pollution which is generated on land and which is transported into the ocean by the action of water upon the landmasses. A useful method of delimitation of this pollution on the domestic level consists of regulating pollutants by the following categorizations: (1) hydrocarbons; (2) toxic metals; (3) radioactive debris; (4) granular pollution; and (5) solid-waste. Among these categories, our case study of the Fukushima Daiichi nuclear crisis can be regarded as land-based pollution of coastal waters due to radioactive debris.
According to the United Nations Convention on the Law of the Sea (UNCLOS) Treaty, countries are obligated "to prevent, reduce and control pollution [...] from land-based sources, including rivers, estuaries, pipelines and outfall structures.” This provision provides that the polluting country has the responsibility for controlling land-based pollution. However, enforcement involving land-based pollution and air-borne pollution is mainly vested in individual states, which are required to:
"enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.”
While each country is encouraged to prevent land-based pollution, it is ultimately the individual country that has primary jurisdiction over its own land-based pollution. In other words, despite the establishment of a basic international maritime law system for the marine environment, the agreement exposes its binding limitations by leaving the effectiveness to each country, making it difficult to attribute responsibility to polluters and enforce that decision for radioactive pollution.
3. State Responsibility in International Law
Under customary international law, it has been established that the state bears responsibility for state misconduct, as illustrated in the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts. Article 1 of the ILC Draft Article stipulates that “[e]very internationally wrongful act of a State entails the international responsibility of that State.” This implies that states which are responsible must compensate for the damages that have occurred as a result of such action and decision.
a. Definition of State Responsibility
In general, state responsibility requires two fundamental conditions to be met: first, the committed violation must be attributable to a state, and second, there must be an established causal relationship between the action of a state and the resulting harm. It is important to identify the damage activities attributable to the state and the causal relationship between the act and the damage, determine whether the duty of care is violated (also known as due diligence), quantify the damage and re-associate the relevant activities in the court. Even if the harm was a consequence of the wrongdoing of an individual or a national representative, if the act can be considered attributable to the state, the state bears the obligation to compensate for the resulting transboundary harm to other countries.
b. Key Assumptions Underpinning State Responsibility
The significance and interpretation of state responsibility in international law has traditionally been informed by the assumption of state sovereignty. State sovereignty is not only the highest coercive power of the state, but also the ability of the state to protect and promote the interests of its people. This not only involves preventing extraterritorial harm, but also avoiding tit-for-tat revenge between states that may lead to a “war of each against all”, as Thomas Hobbes puts it.
This overarching assumption of strict state sovereignty demonstrates several fundamental rules in applying state responsibility with regards to the environmental dimension. First, sovereignty is the right of states to noninterference. It creates an obligation not to interfere in the territory and affairs of other countries. With regard to environmental protection, this means that states and non-state actors (including both individuals and groups) are obliged not to environmentally harm other states, their territories, and populations through environmental pollution or blocking rightful access to nature. Environmental state sovereignty, then, enables states not only to maintain their control over territory but also to prevent harm within its jurisdiction or pay compensation for such harm. After all, sovereign rights and duties are two sides of the same coin, and cannot be considered separately.
Second, a state’s violation of international law depends on the actual content of the state's international obligations, which varies from state to state. Traditional international law minimizes restrictions on state sovereignty by requiring explicit permission or prohibition through means such as ratification of specific treaties in order to regulate state behavior. Even in general international law, which is theoretically uniform for every state, states may be in different positions and have different interests. According to different treaties, conventions and commitments, these states have different responsibilities—that is, there is no such thing as a uniform standard under international law. For instance, in the Lotus Case, the Permanent Court of International Justice (PCIJ) established the Lotus principle (or the Lotus approach as some call it), which is that sovereign states can act in any way they want unless they violate an explicit prohibition under international law. Therefore, as long as states do not explicitly breach a treaty or customary international law, there is no international method of holding the states accountable. Considering that states create and modify international law via specific provisions of the treaty, the principle of state sovereignty lies at the heart of state responsibility and acts as an important function in holding countries accountable for transboundary pollution and harm.
Finally, only a state can owe to another state according to the doctrine of state sovereignty. This rule is based on the traditional concept of territorially defining a state based on membership and political identity. Since democratic political accountability, which gives rise to the internal mode of state sovereignty, normally presumes a territorial congruence between those responsible for the harm and those affected by the harm, state responsibility is only owed to another state, not individuals or other groups. While individuals may use measures of diplomatic protection to sue another state, these measures are barely used in the international realm, especially when it comes to matters of environmental protection.
4. The Case of Fukushima Daiichi and Limitations of State Responsibility
The key assumptions elaborated in the section above reflect the conceptions of the early framers of state responsibility based on state sovereignty. However, this research argues that modern examples of environmental harm and transboundary pollution frequently have universal impacts challenge the validity of these assumptions, which fails to be effective in providing sufficient legal protection for environmental victims. Thus, in the following section of the paper, I aim to unravel the modern notion of state responsibility through the example of Fukushima Daiichi Nuclear Power Plant Disaster and the recent decision by the Japanese state government to discharge nuclear wastewater, and present its contradictions with the key assumptions underpinning the traditional notion of state responsibility.
a. The Case of Fukushima Nuclear Disaster
On March 11th, 2011, Japan suffered from an unprecedentedly powerful earthquake, which was followed by a devastating tsunami that destroyed the Iwate and Miyagi Prefectures. The natural disaster was what triggered the Fukushima nuclear power plant disaster that leaked 80% of the radioactive materials into the ocean. The destruction it caused to the earth's environment, especially the marine ecosystem, was simply unparalleled. During the emergency, the Japanese government continued to dismiss calls for international vigilance and initially rated the incident as INES level 4. In fact, several governing entities and research organizations have pointed out that the resulting environmental harm and nuclear contamination is willful pollution that results in environmental victims in many places over the world. In the international community, there are many voices criticizing the Japanese government's response. Although the direct cause of the Fukushima nuclear accident lies in earthquakes and tsunamis, a separate legal assessment will be needed for the Japanese government and Tokyo Electric Power Corporation in terms of their responses to the disaster and their decision to release large amounts of radioactive water into the ocean.
b. Key Assumptions Underpinning State Responsibility Challenged
First, while the right to noninterference means that states must not environmentally harm other states, it does not necessarily mean that states must protect their citizens against the harm when it has happened. When marine and airborne radiation from a Fukushima-like incident shortens people’s life spans and leads to suffering from illness, it is doubtful that states will make full restitution. As Xuyu Hu notes in his paper, cases “where compensation is obtained are the exceptions, not the rule, and states are reluctant to develop adjudicatory regimes for implementing state responsibility” Moreover, since compensation based on state responsibility is closely tied with diplomatic stances of countries and issues of state sovereignty, most countries have been hesitant to use such legal mechanisms against other states. Thus, state responsibility has rarely been applied since the basic assumption of state sovereignty in international law critically limits the range of conduct that a state is responsible for.
Second, state responsibility arises only when there is a explicit violation of treaty obligations or customary law. However, as seen in the given case of Fukushima, such a quasi-contractual arrangement is not very useful. This is because international obligations based on treaties are the result of calculated strategies between countries, and therefore apply only when it is considered mutually beneficial to promote material and symbolic interests to cooperate in creating new rules. As a result, most nuclear-powered countries around the world, including South Korea, Japan, and China, have not ratified the two main international treaties on the compensation of environmental damage derived from nuclear accidents or waste leakage. Hence, there was no direct basis for confirming responsibility between Korea and Japan regarding the Fukushima nuclear accident. In this regard, we can see that the concept of exclusive state sovereignty serves as a basis for norms and practices that only depend on the strategic interests of the countries involved. On this basis, there has often been criticisms that the current sovereign state model is in fact a cognitive structure of "organized hypocrisy."
Finally, while protecting people against environmental harm and guaranteeing individual rights to nature is clearly a task of importance in today’s world, whether this is compatible with the central principle of state sovereignty in international relations remains a question to be answered. In Fukushima, we saw that the ecological harm and damage was not limited to Japan and its neighboring countries, but affected nearly half of the entire world. Nevertheless, the harm that others have indirectly suffered goes completely unnoticed in the current regime of state responsibility. In this sense, the issue of to what extent each state should be liable for the damages of individuals arises. This issue is at the heart of the cosmopolitan vs. communitarian debate about the importance of states vis-á-vis individuals. Cosmopolitan advocates deny the moral importance of non-individual entities. Cosmopolitan advocates contend that the importance of collective entities such as states is derived from individuals' moral priorities. Hence, the individualistic orientation of their moral belief leads to the argument that when we calculate state responsibility for transboundary harm, the states should not only be accountable for the harm that it has done to the other state, but also be accountable for everyone that was or could be affected. This calculation should not be limited to state borders or the existence of state authority. In other words, traditional geopolitical borders are outdated, because the territorial concept of state fails to complement the transboundary scales or the universal effects in complex transboundary environmental harm and damage.
Based on the arguments above, the case of Fukushima is one of many incidents where state responsibility has not offered an adequate solution. With focus on state sovereignty, in order for there to be sufficient compensation, such issues of transboundary pollution require a qualitatively different approach to state responsibility. Currently, as Japan’s decision to release nuclear wastewater and the absence of countermeasures taken by international society demonstrate, it is clear that structural barriers exist in applying the principle of national responsibility for cross-border pollution. This seeming gap between transboundary pollution and the actual application of state responsibility to these matters creates new international challenges that require close examination to devise practical legal mechanisms to protect human rights and the environment. In the remaining section, I will further examine the cosmopolitan theory of international justice and suggest an alternative regime of state responsibility that can upgrade the current challenges to state responsibility in transboundary pollution issues.
5. Propositions for Management of Transboundary Water Pollution
As examined above, the current regime of state responsibility clearly fails to meet the standard of what is needed to advance the political responsibility of states for all the effects of environmental destruction. Then how can we overcome current challenges to state responsibility for transboundary pollution? Here, this paper will examine the cosmopolitan theory of international distributive justice and relate that to issues of transboundary environmental pollution in order to provide useful insight. Furthermore, the paper aims to explore the general implications of cosmopolitan distributive justice to issues of state sovereignty and the scope of state responsibility.
Cosmopolitanism means that any individual or group cannot be excluded from moral consideration based on membership of different communities. The underlying idea is that when humans are born, they are situated into two communities: the community of their birth, and the community of mankind as a whole, and that one's membership in both communities does not deprive or exclude the other in terms of moral responsibilities. In other words, one's obligations to the people of the same state should be in balance with one’s obligation to humanity as a whole, and for some cases, humanity should be given priority.
This paper argues that applying this idea of cosmopolitan international justice can help overcome the challenges of holding states responsible for transboundary environmental harm. The history of international environmental law and justice illustrates how cosmopolitan ideas are increasingly applied to the evolving transboundary concept of environmental pollution. During the 1970s, the initial focus was on the transboundary movement of harmful substances across national borders, as evinced by famous examples such as the Trail Smelter case. In the 1980s, a new form of transnational harm became a matter of growing concern: transboundary shipment of hazardous activities and substances. This change is evidenced by Principle 14 of the Rio declaration as well as the adoption of the Basel Convention (1989), which monitors the transboundary movement of hazardous waste from developed to less developed nations.
The ban on this form of transnational activity is meaningful in that it represents the transnational dimension of environmental justice and politics concerning developing countries, attributing moral responsibility to rich states. Growing awareness of the connection between environmental destruction and human rights violations / mass crimes has brought about the expansion of the legal frameworks governing environmental protection under the human rights agenda. For instance, the adoption of the Environmental Modification Convention, the International Law Commission’s (ILC) Protection of the Environment in Relation to Armed Conflicts, and the Declaration and Protocol on Asphyxiating Gases and Bacteriological Methods of Warfare have marked the “biggest step forward in legal protection for the environment in conflicts since the 1970s”.
As mentioned before, under the no-harm principle of environmental law, transboundary harm is clearly a breach of international law and state sovereignty in the sense that all states have a duty to minimize harm and avoid it as much as it can so as to respect the environment and sovereignty of other states. However, over the past decade or so, international jurists and lawyers have taken a step further to discuss the concept of "environmental rights" as a combination of human rights and the protection of the environment. Like other human rights, the concept of environmental rights consists of both substantive and procedural factors. There is a growing recognition that procedural rights can help achieve or maintain substantial rights to the healthy environment in domestic and global politics. This proposal justifies a fair response among countries to global warming. While this principle does not necessarily go so far as to generate a global egalitarian principle that Rawls argued for, it is based on a comprehensive cosmopolitan idea of commitment to equality and friendship for the world.
However, this cosmopolitan account of international environmental justice is not without its criticisms. Anti-cosmopolitan will argue that such cosmopolitan and individualist orientation will inevitable conflict with concepts like sovereign immunity or sovereign control over national resources. Moreover, they will object to the idea of giving prioritizing damages and harms in the global arena before considering more fundamental and perhaps more relatively important damages in the domestic realm such as poverty or starvation. Nevertheless, despite having its defects and complexities, the cosmopolitan idea of state responsibility to individuals is still a significant method of providing effective remedies and preventing further transboundary damage. Since there is no strong universal authority to enforce obligations and prohibit hazardous activities without the consent of the state subjects, the cosmopolitan approach to transboundary environmental harm will be able to provide an alternative legal basis or perhaps a solution to the lack of enforcement that can protect individual rights to a clean environment.
It has been over a decade since the devastation of the March 11 earthquake and tsunami and the Fukushima nuclear disaster. Now, Japan must seize the opportunity to take responsibility for the environmental damage that could have been prevented, and the irreversible harm that it has caused to its people and the international community. At the same time, the international community must learn from the lessons of Fukushima. Fukushima taught the world that today’s international legal system and the regime of state responsibility is far from effective in imposing liability, fully compensating for the damage to the environment and individuals, as well as providing for preventive measures for nuclear safety. As more nuclear power plants are being built around the world, there is a strong necessity for the lessons from Fukushima to be applied and knowledge gained to be utilized.
Practice shows that the traditional concept of state responsibility in international environmental law faces several limitations in managing and preventing transboundary environmental pollution and harm. Here, the cosmopolitan theory of international environmental justice can be of huge contribution by building up the definition of a political community in the future. The cosmopolitan theory of international distributive justice provides an alternative basis for structuring a new consensus for effectively regulating transboundary harm disputes and accommodates environmental interests of both states and individuals. As examined in the paper, in holding states liable for their transboundary pollution, the doctrine of state sovereignty and the minimum standards of due diligence actually limit the states’ obligation for providing remedies to the harms they have caused to the environment and many individuals. Therefore, the international legal focus should not be in regards to the strict concept of state sovereignty, but on cosmopolitan norms of state responsibility, which requires a commitment to regard all individuals as moral equals—regardless of their nationality—and allows room for prioritizing more vulnerable members of other communities.
Whatever the trajectory of governing transboundary environmental pollution may be in the future , the transboundary environmental responsibility challenges mentioned throughout this paper serves as an implication that there exists a moral space for global and public discourse. State’s adoption of the cosmopolitan responsibility to the environment to fulfill their duty to protect the environment will be a major breakthrough in traditional international law. For now, insofar as the potential and incidence of transboundary environmental damage increases, non-territorial spaces continue to become increasingly cosmopolitan.
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 Ibid., 350.
 Ibid., 343.