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Abstract

The imminent discharge of Fukushima-contaminated water into the ocean would result in severe controversies and disputes concerning marine environment pollution in Japan and the neighboring countries. This paper argues that high similarities can be found between the disputes arising from the imminent discharge and those subject to compulsory conciliation under the dispute settlement mechanism of the law of the sea. Together with the advantages of compulsory conciliation in settling disputes related to the exercise of discretion by states, it is asserted that compulsory conciliation could become the best choice to settle the potential disputes arising from the imminent discharge between Japan and the neighboring countries. This article also draws attention to some essential issues related to the application of compulsory conciliation, including the establishment of jurisdiction and authorities of the conciliation commission, and the implementation of the conciliation report.

Keywords

Compulsory conciliation Fukushima-contaminated water discharge marine environment pollution dispute settlement mechanism discretion

Backgrounds and introduction

The two largest nuclear disasters in history happened in Chernobyl 1986 and Fukushima 2011, both of which have been raised to level 7 of crisis, the highest level on the international scale used to evaluate the seriousness of nuclear incidents.¹ The definition issued by the International Atomic Energy Agency (IAEA) of a level 7 accident means “Major release of radioactive material with widespread health and environmental effects requiring implementation of planned and extended countermeasure.”² Besides showing the vulnerability of the Fukushima Daiichi nuclear plant (FDNP) to a disaster,³ the following Fukushima-contaminated water discharge (FCWD) has also resulted in a huge challenge to marine environmental governance and related dispute settlement.

The FDNP, operated by Tokyo Electric Power Company (TEPCO), used to produce one-third of the electricity in Japan before the release accident.⁴ The release of a substantial number of radioactive substances was caused by the loss of the entire core cooling capacity of the three reactors of the nuclear power plant and some other serious damages to the nuclear cores after a 9-magnitude earthquake on March 11, 2011.⁵ ^(p.237) There are direct releases and also discharges into the sea at the site, with the primary source of highly radioactive water from a trench at the FDNP.⁶ ^(p.107) Hereto the harmful consequence has mainly resulted from force majeure. On March 15, 2011, The Japanese government requested assistance from the IAEA in the areas of environmental monitoring and the effects of radiation on human health. Then the IAEA activated its Incident and Emergency System and continues to provide assistance to the Fukushima Prefecture government in radiation monitoring and remediation.⁷

Controversies occurred on April 13, 2021, since Japan announced the Basic Policy on the handling of radioactive water stored at the Fukushima Daiichi Nuclear Power Station,⁸ which is to discharge radioactive water into the sea subject to domestic regulatory approvals.⁹ This policy also includes a plan, to treat the radioactive water from the Advanced Liquid Processing System (ALPS) before releasing.¹⁰ ^(p.1) Based on the request of Japan, the IAEA and Japan signed the Terms of Reference for IAEA Assistance to Japan to Review of Safety Aspects of ALPS Treated Water at TEPCO Fukushima Daiichi Nuclear Power Station.¹¹ ^(p.1) These terms of reference aim to monitor and review the plans and activities relating to the radioactive water release to ensure they will be in conformity with the international safety standards of the IAEA, which “constitute the global reference for protecting people and the environment.”¹⁰ The release of 1.3 million tons of contaminated water from the defunct FDNP into the Pacific Ocean could begin as early as 2023 spring or summer, according to materials distributed at a 13 January ministerial meeting.¹²

So far, the neighboring countries have expressed grave concerns about the decision of discharging contaminated water made by Japan. The Director-General of the Department of Arms Control of the Foreign Ministry condemns that the disposal of nuclear-contaminated water is “by no means Japan's private matter” and “driven by selfish interests.”¹³ The Russian Foreign Ministry's official spokesperson asserted that “we express serious concern in this regard and expect the government of Japan to demonstrate due transparency, informing states concerned about its actions that might pose a radiation threat…Official information, provided by Japan on this issue, is insufficient…it contains no assessment of environmental risks that the decision may entail for the Pacific Region.”¹⁴ South Korea President said that Japan should seek the consent of neighboring countries before moving ahead with its plan to discharge treated radioactive water from the crippled Fukushima nuclear plant into the ocean.¹⁵ The decision of discharging contaminated water has also been criticized by NGOs, such as Greenpeace¹⁶ and the Pacific Collective on Nuclear Issues,¹⁷ and has even been protested by Japanese nationals.¹⁸

Once the plan of FCWD was implemented, it would have profound impacts on oceans and other adjacent coastal countries. Meanwhile, it would initiate serious contradictions between Japan and the neighboring countries, including China, Russia, and South Korea. The first and most significant contradiction is whether FCWD would lead to marine environment pollution based on international rules and standards stipulated in international treaties and manifested by State practices. Other contradictions focus on whether Japan violates its obligation of protecting the marine environment and preserving living resources in offshore waters, especially in the exclusive economic zone (EEZ), and whether Japan has due regard to the interests and rights of other neighboring countries. Moreover, whether and how these contradictions could be settled peacefully and appropriately becomes another tricky issue.

These potential contradictions are highly related to the implementation and interpretation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).¹⁹ Since Japan and the neighboring countries are all member states, they shall resort to dispute settlement mechanisms established by UNCLOS for solutions. This dispute settlement mechanism, consisting of both political and judicial methods with respective procedures, provides a wide range of options for member states to eliminate their controversies. In other words, the UNCLOS framework endorses states to have multiple judicial and quasi-judicial options to settle their disputes.²⁰ ^(p.374) However, “a critical difference between domestic legal systems and the international legal order is that the latter lacks courts with compulsory jurisdiction.”²¹ ^(p.503) Moreover, regards the disputes arising from the FCWD, judicial methods may not be applied since the conflicting parties, like China, may prefer diplomatic negotiations to reach a mutual consensus. “There are many ways to resolve disputes…China has always advocated the peaceful settlement of disputes and adhered to the principle of equality and fairness.”²² ^(p.49) However, so far Japan has not initiated negotiations on relevant controversial issues with China or other neighboring countries.

As one political method under the dispute settlement mechanism, compulsory conciliation thus becomes an applicable option for Japan and the neighboring countries, not only because of the similarities between the disputes subject to compulsory conciliation under the UNCLOS and those arising from FCWD but also because of the unique advantages of compulsory conciliation in its application to settle disputes. Besides, according to Article 286 of the UNCLOS, political methods somehow have been regarded as procedural prerequisites. That is to say, even if there is a chance Japan and any neighboring country would like to resort their disputes to judicial methods, political methods should be exhausted first. Compared to other political methods, the proceedings of compulsory conciliation have been designed to be more standardized to ensure the efficiency of dispute settlement. Furthermore, even if compulsory conciliation is applicable, the following issues also need to be clarified, the appropriate extension of jurisdiction and authorities that the conciliation commission could have, and the effectiveness or influence of the conciliation report.

The applicability and feasibility of compulsory conciliation

Japan and the neighboring countries are obliged to settle the potential disputes arising from the imminent FCWD through peaceful methods, under Article 3 of the Charter of the United Nations (UN Charter) and Article 297 of the UNCLOS. Among all the peaceful methods, compulsory conciliation is feasible and appropriate since it has a series of advantages other methods do not have.

“Conciliation is a method for the settlement of international disputes of any nature according to which a Commission set up by the Parties…proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them or affording the Parties, with a view to its settlement, such aid as they may have requested.”²³ The UNCLOS has established both voluntary conciliation, in accordance with Article 284 and Section 1 of Annex V, and compulsory conciliation, according to Article 297(2)(b), 293(3)(b), 298(1)(a)(i) and Section 2 of Annex 5. Compulsory conciliation is different from voluntary conciliation in that if one party to the dispute alleges to conciliation procedure, the initiation and progress of the procedures will not be affected by the consent of any other party. It means that “the establishment of the [conciliation] commission's jurisdiction is automatic in the sense that any party is entitled to initiate the conciliation procedure without the consent of the other party.”²⁴ ^(p.324) However, being consistent with the characteristics and requirements of conciliation, the report concluded by the conciliation commission has no binding force on parties to the disputes. In this sense, compulsory conciliation may be called compulsory nonbinding conciliation.

The application of compulsory conciliation shows comparatively more respect to state mutual consensus, and better reflects the national wills. Regarding disputes referring to complicated issues, like marine environment protection, excepting for the rules and standards stipulated in relevant treaties and recognized by other sources of international law, conciliation leaves room for disputing parties to make concessions to avoid any “disgrace” of either party and also avoid “surprise” and “accident” from any disputing party or the third party.²⁵ ^(p.65) This constitutes the essential incentive for both conflicting parties. Moreover, resorting to compulsory conciliation is also helpful in promoting the efficiency of dispute settlement, as well as saving time and reducing economic costs.

Generally speaking, parties to any dispute relevant to the implementation and interpretation of UNCLOS may resort to voluntary conciliation for dispute solutions. However, compulsory conciliation is only applicable to certain categories of disputes. According to UNCLOS, the following three categories of disputes should be subject to compulsory conciliation: marine scientific research in the EEZ and on the continental shelf (Article 246, 253), fishery disputes, and obligation to maintain living resources in the EEZ (Article 297), and sea boundary delimitation or historic bays or titles (Article 298).

Although like other disputes related to the implementation and interpretation of UNCLOS, these three categories of disputes also arise from the performance of relevant obligations, instead of simply complying with what they shall do, or refraining from what they shall not do, state parties should endeavor to make their obligations refined and concretized, usually in form of domestic legislation. During this process, the exercise of state discretion is indispensable. Therefore, between the State obligations stipulated in treaty provisions and the actual fulfillment of such obligations, there is one transition zone, in which state parties would first exercise their rights of discretion to establish national rules and standards based on both treaty obligations and actual national situations. In other words, these rules and standards function as a bridge connecting treaty provisions and objective realities. Although States are under international supervision to fulfill their treaty obligations, their rights of discretion, generated from state sovereignty, shall never be replaced by any institute or even tribunal.

Take fishery disputes in the EEZ for example, under Article 62 of UNCLOS, the coastal state bears the obligation to “promote the objective of optimum utilization of the living resources in the EEZ,” along with the obligation to determine its allowable catch and capacity to harvest the living resources of the EEZ. For this purpose, the coastal State is free to choose indicators and variables determining the allowable catch, its harvesting capacity, the allocation of surpluses to other states, and the terms and conditions established in its conservation and management laws and regulations. If the coastal state refuses to make such a determination or refuses arbitrarily the requests of land-locked states or geographically disadvantaged states to participate in the exploitation of the surplus of the fish resources, the resulting disputes can be submitted to compulsory conciliation. However, the coastal state is not obliged to submit any dispute arising out of the exercise of its discretion to determine the above issues. The existence of a transition zone and the exercise of discretion makes it difficult to resort to such disputes to some other dispute settlement methods, especially judicial methods.

Silimarity of exercising state discretion can also be seen in the governance of marine environment pollution, though the situation could be more complicated. Part XII of the UNCLOS stipulates the adoption and enforcement of domestic laws and regulations for the prevention, reduction, and control of pollution of the marine environment, such as pollution from land-based sources, pollution from seabed activities, pollution from dumping, pollution from vessels, and pollution from or through the atmosphere. To be specific, under UNCLOS Article 192, a member state has the obligation to protect and preserve the marine environment, and further, to prevent and reduce pollution of the marine environment from land-based sources according to Article 207, and by dumping harmful substances according to Article 210 (1). However, no specific or mandatory standards have been set in these articles. Article 210 (6) just requires these national rules and standards no less effective than global rules and standards. Similarly, Article 207 emphasizes the importance of taking into account internationally agreed rules, standards, and recommended practices and procedures. These so-called absolute or global standards to prevent marine pollution can be found in detailed treaties adopted by the International Maritime Organization (IMO),²⁶ ^(p.382) including the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter of 1972 (London Convention)²⁷ and the 1996 Protocol on the London Convention of 1972 concerning dumping into the sea (London Protocol).²⁸

To perform the obligations of protecting the marine environment, states shall establish goals, rules, and specific procedures through domestic legislation or international practices in accordance with global rules and standards, which have largely been set in the aforementioned treaties adopted by the IMO. Within this framework, the discretion of Japan somehow plays an essential role in considering and selecting favorable indicators and variables to constitute its own rules and standards subject to domestic laws and regulations. As long as these rules and standards for marine environment protection and pollution control are not less effective than those set in treaties adopted by IMO, they are valid and sufficient. Therefore, the similarity of exercising discretion of states can be witnessed between the potential disputes arising from the imminent FCWD and those subject to compulsory conciliation. Besides, another similarity goes to the necessity of prompt settlement of the disputes concerned. As the same as those subject to compulsory conciliation, the disputes referring to marine environment pollution that may arise from the imminent FCWD are closely related to the safety and interests of all countries involved, the escalation of these disputes would threaten regional peace and security. Based on these similarities, compulsory conciliation should be applicable for dispute settlement in the imminent FCWD.

Compulsory conciliation, combined with the advantages of both political and legal dispute settlement methods, has strong competitiveness in settling international disputes, especially those that may arise from FCWD. The characteristic of compulsory conciliation being one political method ensures state sovereignty and mutual consensus to be fully respected; while the mandatory feature of compulsory conciliation can guarantee the implementation and progress of the procedures.

Firstly, compulsory conciliation embodies both flexible and normative features. Regards disputes arising from marine environment pollution, the conflicting parties, including China, Russia, South Korea, and Japan, could together determine procedural issues to some degree based on their state preferences. These procedural issues include the institution of proceedings, the constitution of the conciliation commission, and the termination of procedures. The conflicting parties even have the right to modify conciliation procedures by agreement according to Article 10, Annex V of UNCLOS. At the same time, the application of these procedures cannot be fully directed or dominated by political dimensions since they have been defined and organized in Annex V of the UNCLOS. Without the agreement of conflicting partners, these procedures cannot be modified arbitrarily.

Secondly, compulsory conciliation functions both coercively and voluntarily. Once initiated by any conflicting party among Japan and other neighboring countries, the procedure will continuously proceed regardless of other parties’ intentions. In this way, could conflicting parties be actively urged to perform their duties to settle the disputes peacefully; and correspondingly, the efficiency of dispute resolution would be guaranteed. At the same time, limited authorities of conciliation commission and nonbinding force of conciliation report would still save opportunities for conflicting parties to reach further compromises and agreements, or even resort to other applicable dispute settlement methods. Moreover, besides the UNCLOS, China, Russia, South Korea, and Japan are also member states of a series of fundamental international conventions referring to nuclear accidents and pollution, including the Convention on the Physical Protection of Nuclear Material,²⁹ Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency,³⁰ Convention on Early Notification of a Nuclear Accident,³¹ and Convention on Nuclear Safety.³² During the proceedings of compulsory conciliation, all disputing parties would be stimulated to cooperate actively to settle their divergences on a couple of controversial issues, relevant to assessments of safety vulnerabilities of nuclear power plants, safety standards, emergency preparedness and response, national regulatory bodies, etc. And it would be helpful for the formation and development of international nuclear safety mechanisms.

Thirdly, compulsory conciliation helps to balance the efficiency and justice of the dispute settlement, both of which have been pursued by conflicting parties as essential values. According to Articles 7 and 8 of Annex V, the conciliation commission shall report within 12 months of its constitution, and the conciliation proceedings will be terminated when any disputing party rejects the report by written notification addressed to the Secretary-General of the UN, or simply when a period of three months has expired from the date the parties receive the report. Such time limits largely prevent unreasonable delay of the procedure which is common in other dispute settlement practices. Meanwhile, based on Article 7 of Annex V, the report of the commission and relevant conclusions or recommendations has no binding force on the conflicting parties. If the report or any relevant recommendation is questioned, the conflicting parties still have a chance to seek other resolutions.

Disputes involved could be settled through compulsory conciliation

As a turning point, the decision made by the Japanese government in April 2021 to release tonnes of contaminated water from the wrecked FDNP into the ocean has divided the whole incident into two phases.

Before the decision, the FDNP was destroyed by natural disasters, the release of radioactive materials has caused radionuclide pollution at a large scale to the atmosphere, hydrosphere, biosphere, and pedosphere abound the nuclear plants and the entire northern hemisphere.³¹ However, the state responsibility for leaking nuclear radioactive wastewater can be waived by force majeure, following Article 23 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (the Draft Articles), adopted by the International Law Commission in August 2001.³³ Although the TEPCO has been criticized for lack of information transparency as well as vulnerable emergency` response measures, as a private enterprise, these wrongful acts of the TEPCO still cannot be attributed to the government of Japan. However, “UNCLOS upholds the customary law principle that states are to conduct their activities in such a way that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond areas of national jurisdiction.”³⁴ ^(p.87) Therefore, the Japanese government still takes supplementary compensation liability if the TEPCO cannot afford the compensation. If the damages were expanded by its misconduct, the Japanese government still should take corresponding responsibilities. Besides, under the UNCLOS, the Japanese government still bears duties of cooperating on a global or regional basis (Article 197), notifying imminent or actual damage (Article 198), developing and promoting contingency plans against pollution (Article 199), and exchanging information and data (Article 200). The release of nuclear wastewater in this phase has already resulted in serious harmful consequences. Since the FDNP was destroyed by the quake and tsunami, water used to cool the nuclear reactors and contaminated groundwater have been stored in massive tanks at the plant.³⁵ More than 1000 tanks have been built by TEPCO to hold some 1.25 million tons of processed water at the site but they would be full by the second half of 2022.³⁶ It shows that radioactive materials, consisting of ³H, ¹⁴C, ¹³⁴Cs, ¹³⁷Cs, ⁶⁰Co, ¹²⁵Sb, ⁹⁰Sr, ¹²⁹I, ⁹⁹Tc, ¹⁰⁶Ru, and ²³⁸Pu, have been found on the surface of vegetables, fruits, crops, and animal feed.³⁷ ^(p.12578) Certain radionuclides can be transported by large marine animals from coastal areas of Japan to distant regions, even the South and North Pacific.³⁸ Freshwater biota in Fukushima was seriously polluted.³⁹

However, after being approved by the Japanese cabinet, Japan announced that it would release 1.3 million tons of contaminated water containing tritium into the sea over the course of 30 years.⁴⁰ It is without any doubt that if this plan puts into effect, the nuclear-contaminated water will be deliberately discharged by the Japanese government, instead of leaking accidentally from the tanks due to force majeure at the very beginning. The Japanese government has been condemned for making irresponsible decisions and violating its international obligations since the imminent FCWD may trigger disputes over marine environment pollution.^41–43 It comes to the key question: whether the imminent FCWD constitutes a violation or is in a community with the obligation of Japan under UNCLOS. The positive answer to this question will have two consequences: First, Japan should take state responsibility for the wrongful act of FCWD. This is also reflected by Article 235 of UNCLOS, under which Japan is obliged to undertake three categories of duties. Firstly, Japan is responsible for the protection and preservation of the marine environment. Secondly, Japan should provide prompt and adequate compensation for damages caused by pollution of the marine environment. Thirdly, Japan is under the obligation of cooperating with the international community in developing criteria concerning compensation and settlement of related disputes. Second, any dispute arising from the imminent FCWD would be submitted to compulsory conciliation for a solution.

To answer the key question, the nature and classification of FCWD should be defined primarily. Under UNCLOS, the sources of marine environment pollution have been classified as land-based, by dumping, from the vessel, from activities in the area, and from or through the atmosphere (Article 207–212). In accordance with Article 207 of UNCLOS, member states should refrain from pollution from land-based sources, including rivers, estuaries, pipelines, and outfall structures. TEPCO announced the use of a pipeline under a nearby harbor to discharge the contaminated water into a designed area in the Pacific Ocean.⁴⁴ If this plan is followed, the imminent FCWD constitutes pollution from land-based sources.

It can be confirmed that Japan bears the obligation of protecting the environment and of course refraining from marine environment pollution, which is clearly defined by Article 1.1(4) of the UNCLOS as follows:

“Pollution of the marine environment” means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

Based on this definition, there are three elements of marine environment pollution: (1) the pollution is caused by substances or energy in the marine environment. TEPCO announced that the nuclear wastewater would run through the ALPS, a complicated filter system.⁴⁵ As it is stated,

discharge of the ALPS treated water into the sea is conducted after sufficiently diluting the ALPS treated water. Prior to the discharge, i) the concentration of tritium of the ALPS treated water and ii) the water is purified until the level of radioactive materials other than tritium satisfies the regulatory standards for safety…To allay the concerns of the consumers, the target concentration of tritium should be the same as the operational target (less than 1,500Bq/Liter-water7) for the currently implemented discharge of water pumped up via sub-drains, at Fukushima Daiichi NPS.⁸ ^(p.8)

Obviously, the ALPS cannot filter all radionuclides. It is significant to notice that 62 kinds of radionuclides could be captured by this system except tritium, which is a radioactive isotope of hydrogen with a 12.3-year-half-life.⁴⁶ ^(p.2) Exposure to high concentrations of tritium may pose health risks to individuals.⁴⁷ The beta particle emitted by tritium is generally only considered to be hazardous if a large quantity of tritium is or has the potential to be, taken into the body by inhalation, skin absorption, and ingestion of tritiated water.⁴⁸ Tritium is most dangerous when it decays because it emits low-level radiation that may affect human cells.⁴⁷ (2) The substances or energy leading to pollution are introduced by man directly or indirectly. It has been stated that “the [Japanese] government selected discharge into the sea.”⁸ ^(p.6) Thus, the contaminated water will be discharged directly with intention into the ocean. (3) Pollution leads to various harmful consequences. Although it is asserted that tritium only poses a modest health risk for human beings, water containing tritium should be diluted until the tritium concentration is one-fortieth before drinking.⁴⁹ More important, as concerned as other neighboring countries and the international community, the accumulation of radioactive elements will have long-term impacts on seawater, seabed, and marine ecosystems, as well as the health of human beings eventually through the food chain. Scientists warn that the tritium in the water organically binds to other molecules, moving up the food chain affecting plants, fish, and humans… the radioactive hazards of tritium have been underestimated and could pose risks to humans and the environment for over 100 years.⁵⁰ Humans have been affected by direct external exposure and internal exposure via the inhalation and ingestion of radionuclides from contaminated food.⁵¹ The latency time for late radiation health effects can be decades, and therefore, it is not possible to discount the potential occurrence of such effects among an exposed population by observations a few years after exposure.⁵² ^(p.130) Therefore, the imminent FCWD will constitute pollution of the marine environment.

In addition, the imminent FCWD violates the obligations of Japan under the UNCLOS, primarily the obligation of protecting and preserving the marine environment in Article 192. Besides, Article 194 (2) asserts that,

States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

Article 194 (3) emphasizes that,

The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping.

Article 207 stipulates that,

States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines, and outfall structures, taking into account internationally agreed rules, standards, and recommended practices and procedures.

States shall take other measures as may be necessary to prevent, reduce, and control such pollution.

Furthermore, under the UNCLOS, the coastal states are obliged to protect and preserve living resources in their offshore waters, especially the EEZ. In accordance with Article 56 (1)(b)(iii), in the EEZ, the coastal state has jurisdiction as provided for in the relevant provisions of UNCLOS with regard to the protection and preservation of the marine environment. Moreover, according to Article 56 (2),

In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

Therefore, even if the decision of FCWD has been approved by the Japanese cabinet⁵³ and supported by the Director General of IAEA,⁵⁴ Japan should have due regard to the rights and interests of other neighboring countries. Moreover, the results and conclusions of the IAEA's review are not legally binding on Japan, and Japan remains fully responsible for the safety of FCWD.⁵⁵

To sum up, the imminent FCWD constitutes pollution from land-based sources and results in violation of the obligations of Japan to protect the marine environment and due regard to the rights and interests of other coastal states under UNCLOS. Therefore, the potential disputes referring to marine environment pollution arising from the FCWD should be resolved by the dispute settlement mechanism. Among all the methods under this mechanism, compulsory conciliation is applicable and feasible as argued above.

The appropriate extension of authorities of conciliation commission

The constitution of the conciliation commission is the most significant part of the whole compulsory conciliation proceedings. Being the objective and impartial third party, the conciliation commission consisting of conciliators appointed respectively by conflicting parties to the disputes will lead the process of future conciliation procedures. The conciliation commission can also help to eliminate wide divergence and settle disputes between conflicting parties. “The [conciliation] commission positioned itself as an intermediary between the parties, testing the positions of each side. It played an unusually active role in pushing the parties.”⁵⁶ ^(p.54)

Based on the requirements stipulated in the UNCLOS, the conciliation commission is usually composed of five conciliators selected, from a list of conciliators maintained by the Secretary-General of the UN, and then appointed by conflicting parties (UNCLOS Annex V, Article 2). The conciliation commission has been entitled, by the UNCLOS Annex V Articles 4–7, the following authorities: (1) determining procedures of the commission; (2) inviting any state party to submit views on the disputes; (3) drawing the attention of the state parties to any measure which might facilitate the dispute settlement; (4) hearing the case facts, claims, and arguments stated by state parties; and (5) concluding report which records all relevant information of cases and provides recommendations on dispute settlement.

If the disputes initiated through the immanent FCWD could be resorted to the conciliation commission, on the basis of consensus reached by the conflicting parties or on the basis of satisfaction of the conditions stipulated in the UNCLOS, the conciliation commission is expected to be established and then perform the above responsibilities. But the question is, whether these authorities are sufficient to support the conciliation commission in resolving the disputes concerned. It must be beneficial to fulfill the responsibilities and functions of the conciliation commission if its authorities receive an appropriate extension. Meanwhile, the balance between expanding authorities of the conciliation commission and ensuring state sovereignty is fully respected must be maintained since the latter is the most attractive incentive for conflicting parties.

Firstly, and most importantly, in order to make full use of its advantages and strengths, the conciliation commission should have a wider range of jurisdiction, and the requirements for the establishment of jurisdiction should be less strict. Based on the proven similarities between the disputes any conflicting party intends to resort to compulsory conciliation, and the disputes subject to compulsory conciliation under the UNCLOS, it is proper to authorize the conciliation commission to expand and determine its jurisdiction, in accordance with Article 13 of Annex V, “a disagreement as to whether a conciliation commission acting…has competence shall be decided by the commission.” In other words, between the disputes arising from the imminent FCWD and those subject to compulsory conciliation, similarities can be proved, including the exercise of discretion of Japan and the necessity of prompt settlement of disputes. Therefore, the conciliation commission can expand its jurisdiction over these disputes between Japan and the neighboring countries. If such jurisdiction is challenged by Japan or any other conflicting party, the conciliation commission should enjoy the authority to make a final determination. Nevertheless, if Japan and other conflicting parties bear obligations to settle the disputes referring to marine environment pollution through specific procedures entailing binding decisions under some other general, regional, or even bilateral treaties (UNCLOS Article 281, 282), or if these conflicting parties later agree to seek solutions by other peaceful dispute settlement methods, the conciliation commission no longer has jurisdiction.

Although the conciliation commission has not been authorized to substitute its discretion for that of Japan to determine essential issues relevant to marine environment pollution (Article 297 (3)(c)), nor to supervise the adoption of domestic laws and criteria regulating the FCWD correspondingly, the conciliation commission should have jurisdiction on the legitimacy and rationality of variables and factors, based on international and national law, which Japan has selected to make the discharging decision. Furthermore, since the conciliation commission is not a judicial institute, it is proper to establish certain complaints or appeal mechanisms examining the decision made by the conciliation commission regarding jurisdiction issues.

Secondly, the conciliation commission should have the authority to set up and send working groups consisting of impartial experts and professionals to investigate the facts of disputes. Based on the clarification of disputed facts, the investigation activities and the corresponding investigation report submitted by the working groups are significant for settling disputes, especially those arising from unclear facts. Although it is necessary to be approved by Japan before sending working groups, Japan still has no right to refuse arbitrarily since it is required by the principle of transparency. Article 197 of UNCLOS has set the obligation of member states to cooperate directly or through competent international organizations in formulating and elaborating international rules and standards for the protection and preservation of the marine environment. Besides, in accordance with Article 198, being aware of the imminent danger of damages by contaminated water release, Japan also bears the obligation to notify other states that could be affected by the damages, as well as the competent international organizations. Besides, under Article 200, Japan shall cooperate and endeavor to participate actively to exchange information and data acquired about pollution of the marine environment.

There are a series of facts that need to be investigated in the imminent FCWD, since the official information provided by the Japanese government is insufficient on the issue of the potential impacts of the released contaminated water on the marine ecological environment and human health. The TEPCO has also been criticized for insufficient information disclosure since the beginning of the incident in 2011.⁵⁷ In addition, regard the ALPS, which has been used for claiming the safety of the released contaminated water by the TEPCO and also for justifying the discharged contaminated water to the ocean by the government of Japan, an investigation is also needed. The detailed information and objective evaluation of the ALPS should be accessed by impartial working groups, not only by IAEA or other institutes.

Thirdly, a certain degree of discretion should be entitled to a conciliation commission. States should prevent, reduce, and control marine environment pollution from land-based sources by adopting laws and regulations as well as taking other necessary measures under Article 207. There is only one principal requirement in Article 207 that “Laws, regulations, measures, rules, standards and recommended practices and procedures referred to…shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.” Not yet and also unlikely henceforth to form complete and detailed standards and requirements. Therefore, Japan has the right to exercise its discretion to set up the standards in their national law identifying marine environment pollution and permitting contaminated water discharge. Thus it is significant that the conciliation commission has the authority to examine whether the identification of marine environment pollution and permission for contaminated water discharge has complied with the national laws of Japan. Besides, the conciliation commission should also have the authority to determine whether the relevant national laws of Japan have been less effective in the management of marine environment pollution than the global standards.

It is asserted that “in no case shall the conciliation commission substitute its discretion for that of the coastal State” in Article 297 (3) (c), so the conciliation commission basically could not judge the national laws and rules adopted by Japan. However, it does not mean that the conciliation commission can do nothing with regard to these national laws and rules. The authority of the conciliation commission should receive an appropriate extension. In other words, the conciliation commission should have a certain degree of discretion in examining and determining whether the variables and indicators selected by Japan to make its national laws referring to marine environment pollution and to determine the contaminated water discharge are legal, rational, and proper.

Fourthly, if it is necessary, the conciliation commission could suggest the conflicting parties replace dispute settlement methods. There are two typical scenarios in which the dispute settlement method needs to be adjusted and replaced. In one scenario, the conflicting parties are obliged to resort their disputes to specific measures defined by other treaties. In order to avoid conflicts of jurisdiction with other tribunals or institutes, the conciliation commission may recommend Japan and the neighboring countries reach an agreement and then submit the disputes to other political or judicial bodies for a solution. For instance, according to Article 13, the disputes settlement provision in the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency,⁵⁸ disputes among member states should be solved by any acceptable peaceful means. Though if a dispute cannot be settled within one year, it should be submitted to arbitration or the International Court of Justice. One year after instituting proceedings, the proposal of replacing dispute settlement bodies and the corresponding procedures should be considered. In the other scenario, since the conciliation commission is not a judicial institute, the request of any party to the conflict concerning the preservation of evidence and adoption of provisional measures would be transferred to other courts or tribunals. In marine pollution cases, collecting and preserving evidence of damages is important while comparatively difficult. Any information and data relating to the imminent FCWD controlled by TEPCO and the Japanese government should be preserved. If it can be proved that the FCWD will cause serious damage to the marine environment and the health of people in neighboring countries, the provisional measures requiring TEOCO to terminate discharging contaminated water immediately shall be prescribed. These requests should be accepted and reviewed by judicial institutes, like the International Tribunal for the Law of the Sea (ITLOS).

Strengthening the effectiveness of conciliation report

For states unwilling to resort to legal solutions, the most attractive feature of compulsory conciliation is that the report concludes by the conciliation commission is not binding upon the conflicting parties in accordance with Annex V Article 7(1) of UNCLOS. Meanwhile, when the report and recommendations it contains have been rejected or ignored by the conflicting parties, the conciliation proceedings are terminated (UNCLOS Annex V Article 8).

To some extent, the conciliation report deserves the respect of conflicting countries who have been obliged to settle their disputes in a peaceful way, in accordance with Article 3 of the UN Charter and Article 297 of the UNCLOS. If the conflicting parties rejected or ignored the conciliation report, at the same time, had no intention to seek other dispute solutions in a peaceful way, they would face the risk of taking state responsibilities. To respect and follow the conciliation report has been required by the obligation of settling disputes in a peaceful way, rather than abiding by a legal document with mandatory binding force. As a result, the conflicting parties should avoid inconsistency between their behaviors and the conciliation report unless they achieve agreement on peaceful solutions. Actually, being one procedure of the dispute settlement mechanism established by the UNCLOS, and not one pure political method, the so weak effectiveness of the conciliation report seems unreasonable. It is a pity that the efforts of the conciliators and experts involved finally failed. The failure of dispute settlement means that the conflicting parties have to return to the starting point of the dispute settlement procedure again, and then the dispute settlement has become a circular process.⁵⁹ ^(p.39)

Although the conciliation report is not equal to judicial decisions made by international courts and tribunals, some degree of effects of the conciliation report should be guaranteed with the satisfaction of two conditions. One condition is that the report must show enough respect for mutual consensus and common consciousness among Japan and the neighboring countries, especially on the measures to eliminate marine pollution and make compensation. The other condition is that the balance, between accomplishing fairness and ensuring efficiency of the dispute settlement, should be well considered and achieved in the conciliation report.

Urgent threats to the marine environment and ecological security generated from the imminent FCWD make it essential to settle the disputes promptly and efficiently, in order to minimize pollution and damage to the ocean. If the concerned disputes were submitted to compulsory conciliation and the commission concluded a conciliation report, the responsibilities of the Japanese government would focus on the cessation of the infringement and compensation for the damages. In this way, the conciliation report would no longer be useless. Instead, it could be described as a basis and reason for supporting the injured state to take corresponding measures against the responsible state.

The effectiveness of the conciliation report could be strengthened through the following strategies. Firstly, cooperating with other institutes, courts, and tribunals under the dispute settlement mechanism of UNCLOS, such as the ICJ, ITLOS, and arbitral courts established under Annex VII or VIII, benefits to improve the impacts and influences of conciliation report. As one permanent court, the ITLOS has been entitled to different jurisdictions and authorities. The exercise of such jurisdiction and authorities can somehow promote, both directly and indirectly, the effectiveness of the conciliation report.

To be specific, the ITLOS has jurisdiction over all disputes submitted to it in accordance with UNCLOS and all matters specially provided for in any other agreement which confers jurisdiction on the ITLOS (UNCLOS Annex VI Article 21). Besides, ITLOS may also give an advisory opinion on legal questions if an international agreement is related to the purpose of UNCLOS.⁶⁰ Although the request of enforcing the conciliation report will not be supported by the ITLOS, conflicting parties still could submit disputes arising from the solution concluded in the report. Further, based on the achieved agreement, the conflicting parties even may request the ITLOS to make a judicial decision or advisory opinion on the implementation of the conciliation report. Therefore, complaints referring to the solutions and suggestions concluded in the conciliation report to settle the potential disputes in the imminent FCWD either could be accepted and heard by ITLOS or can receive advisory opinions from ITLOS.

Moreover, ITLOS has jurisdiction over the prescription of provisional measures (UNCLOS Article 290 (5), 292). The request of ceasing infringement immediately in accordance with the conciliation report can be issued by other neighboring countries against Japan. Even if Japan or any other conflicting party reject to execute the conciliation report, such request of prescribing provisional measures can be submitted to ITLOS (UNCLOS Article 290 (4), (5)). During the successive proceedings, the statement made by ITLOS dealing with substantive issues is also valuable for reference to improve the effectiveness of the conciliation report.

Secondly, what benefit of promoting the execution of conciliation reports is to seek cooperation with other international or regional organizations, especially those established with functions of settling disputes among member states, and those having international or regional profound influences. Among all organizations that can cooperate, the UN is the primary and best choice. Either Japan or the neighboring countries could submit the implementation issue of the conciliation report to the UN if there existed controversies, or if the responsible party for marine environment pollution rejected or did not fully fulfill its obligations. Furthermore, if regional even international peace and security were threatened by the imminent FCWD and other escalated disputes, conflicting parties could also bring concerns to the UN Security Council (SC) and count on resolutions made by the UNSC under Chapter VII of the UN Charter, in which UNSC has priority to maintain peace and security by taking any action. If the threat to peace and security could be eliminated by fulfilling the conciliation report by the responsible party, the UNSC would not hesitate to put pressure on the responsible party by adopting resolutions and taking any possible action.

Besides the UN, the IAEA is also a wise choice to cooperate with. Being “strongly linked to nuclear technology and its controversial applications…it was given the mandate to work with its member states and multiple partners worldwide to promote safe, secure and peaceful nuclear technologies.”⁶¹ According to Article III (A)(3) of the Statute of the IAEA (the Statute),⁶² its function is “to foster the exchange of scientific and technical information on peaceful uses of atomic energy.” Meanwhile, member state has obligation to provide information helpful to the Agency (Article VIII (A) of the Statute). The IAEA shall “take positive steps to encourage the exchange among its members of information relating to the nature and peaceful uses of atomic energy and shall serve as an intermediary among its members for this purpose.” (Article VIII (C) of the Statute) More importantly, based on consultation between IAEA and its member state, inspectors designated by the IAEA could be sent to a member state to determine whether the latter comply with the health and safety measures referred to in the Statute. The inspectors shall not be delayed or impeded in the exercise of their functions (Article VII A (6) of the Statute). A Fact-Finding Mission consisting of a team of experts from 12 nations was conducted by IAEA, based on an agreement with Japan, to find facts and identify an initial assessment of the Fukushima Daiichi nuclear accident.⁶³ From May 25 to June 1, 2011, the Mission visited the FDNT and completed a preliminary assessment of the incident. A preliminary conclusion and identified lessons learned have been delivered to Japanese authorities.⁶⁴ The fulfillment of functions and performance of authorities of the IAEA can be helpful for promoting the effectiveness of the conciliation report.

Thirdly, based on these Draft Articles, both the constitution and justification of state responsibility can be invoked to urge conflicting parties to respect the conciliation report and fulfill their obligations. Even if the report is not binding upon Japan and the neighboring countries, they are still obliged to settle the disputes arising from the imminent FCWD in a peaceful way. This obligation is stipulated in Articles 2, 33 of the UN Charter, and Articles 279, 280 of UNCLOS. Rejecting to comply with the report is definitely in conformity with such international obligations of conflicting parties and successively constitutes state responsibilities of them. Besides, the conflicting parties would also due regard to the international public opinions if the report receives general support from the international community. In this way, it is hoped but not limited to the implementation of the report of conflicting parties. However, “in certain circumstances, the commission by one state of an international wrongful act may justify another State injured by that act in taking non-forcible countermeasures to procure its cessation and to achieve reparation for the injury.”⁶⁵ In other words, one state is allowed to claim self-help against certain international wrongful acts of another state, and if the requirements are met, the wrongfulness of the countermeasure can be released, so that the state can be immune to state responsibility.⁶⁶ ^(p.137) In order to urge Japan to perform its duty of protecting the marine environment and making effective compensation for damages caused by discharged contaminated water, certain countermeasures could be taken by both neighboring countries and the rest of the international community, while the countermeasures should be taken with severe restrictions stipulated in the Draft Articles. The purpose of taking countermeasures against Japan is only to induce Japan to comply with its obligations, rather than retaliation or sanctions. Countermeasures should also be taken in a way as to permit Japan to resume the performance of its obligations to protect the marine environment (Article 49 of the Draft Articles). Meanwhile, regard the states taking countermeasures, the performance of their fundamental international obligations should not be undermined by countermeasures, including refraining from the treatment or use of force, protecting fundamental human rights, and those under peremptory norms of general international law (Article 50 (1) of the Draft Articles). And finally, these countermeasures shall be terminated as soon as Japan has the intention to respect and follow the conciliation report (Article 53 of the Draft Articles). Nevertheless, it must be cautious enough to consider taking countermeasures, since “the countermeasure clauses of the articles on state responsibility, more than any other set of their provisions, feature a profound impulse toward social engineering for international relations.”⁶⁷ ^(p.831)

Therefore, the responsibility of maintaining consistency between behaviors and the conciliation report is from the obligation of settling disputes peacefully, rather than abiding by the conciliation report, which is not binding. In this sense, the other parties to the conflict could claim countermeasures or other measures to urge the responsible country to fulfill the obligation and resort to peaceful ways. Besides, the conflicting parties would also due regard to the international public opinions if the report receives general support from the international community. In this way, it is hoped that but not limited to the implementation of the report of conflicting parties.

Summary and conclusion

The imminent FCWD must bring a huge challenge to marine environment protection and governance in the age of nuclear technology; more importantly, it will draw international attention to the constitution of s responsibility and the legal consequences the responsible state should face to. In consideration of the gross and serious damages of nuclear pollution, “the nuclear industry should be required to fully and fair compensate the victims of nuclear accidents for the long-lasting, transboundary, and devasting effects.”⁶⁸ The disputes arising from the imminent FCWD referring to marine environment protection as well as corresponding state responsibility could be resolved by the dispute settlement mechanism since these disputes would be related to the interpretation and implementation of UNCLOS. The announcement and future application of FCWD violate the obligation of Japan to protect the marine environment and refrain from pollution from land-based sources. Meanwhile, the requirement of exercising state sovereign rights in EEZ due regard to the rights and interests of other states will also be a concern by the imminent FCWD.

Under the dispute settlement mechanism of UNCLOS, based on the similarities between the disputes arising from the imminent FCWD and those subject to compulsory conciliation, compulsory conciliation is applicable and feasible prior to other methods. Besides, like other political methods, compulsory conciliation has no binding force upon conflicting parties, while the requirements and procedures of compulsory conciliation have been normatively stipulated in the UNCLOS. Further, compulsory conciliation can better manage the equipoise between efficiency and justice. The conciliation report is required to be concluded within a specified time and recorded the conclusions on all questions of fact or law relevant to the disputes.

For the purpose of improving the effectiveness of compulsory conciliation and making it more efficient in resolving the disputes arising in the imminent FCWD, it is necessary to expand authorities of the conciliation commission appropriately, due to the complicated case facts and various controversies over standards of marine environment pollution, as well as respecting the sovereignty of the conflicting countries. The jurisdiction of the conciliation commission should also receive proper expansion, and finally be determined by the commission itself; while the establishment of certain complaint or appeal mechanism is necessary. The authority of the conciliation commission to set up and send working groups consisting of impartial experts to Japan should be entitled, to pursue the functions of investigating all relevant facts including data and information. In addition, to settle the controversies about whether the decision of FCWD is legitimate and reasonable, the conciliation commission should enjoy some degree of discretion for considering and examining the variables and indicators Japan selected to set up its standards of marine environment protection in domestic laws. Furthermore, if necessary, the conciliation commission could make recommendations to conflicting parties to change dispute settlement methods or submit their specific requests, such as adopting provisional measures, to other authorized courts or institutes.

Although the expected report concluded by the conciliation commission would have no binding force upon Japan and other neighboring countries, as the achievement of the commission and the result of efforts of all parties involved, including conciliators, experts, and professionals, and even the conflicting parties, some degree of effectiveness and impacts of the conciliation report should be guaranteed. Respecting the conciliation report, at least refraining from backing away from it, has originated from the obligation to peacefully resolve international disputes. Cooperation with other institutes and courts under the UNCLOS dispute settlement mechanism, especially the ITLOS, and other international organizations, including the UN and IAEA, could help. Besides, for the potentially injured countries in the imminent FCWD, with the satisfaction of the restricted conditions, claiming countermeasures may benefit preventing Japan to ignore and violate its obligation to peacefully settle the disputes arising from the imminent FCWD reflected in the expectable conciliation report.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Supported by Social Science Foundation of Liaoning Province of China, L22AFX001 “Study on Application Issues of Compulsory Conciliation in Maritime Disputes Settlement in Northeast Asia.”

ORCID iD

Xiaolin Pan

Author Biography

Xiaolin Pan is an associate propressor in Public International Law. Her area of research is settlement of disputes on the sea.

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