By Philip Alexander, a law student at at the National University of Juridical Sciences, Kolkata.
In 2011, the Tohuku earthquake and tsunami destroyed three of the Tokyo Electric Power Company’s (TEPCO) six nuclear power plants located in the Fukushima prefecture of Japan, resulting in the emission of several volatile radionuclides into the air and water. Recently, TEPCO announced the Japanese Government’s approval to dispose of 1.25 million tonnes of decontaminated radioactive wastewater into the Pacific Ocean over the next two years. Presently, the wastewater is treated by the Advanced Liquid Processing System (ALPS) operated by Toshiba and Hitachi General Nuclear Electric before disposal. The ALPS has been qualified as an inefficient method in treating radioactive waste as 72% of the water in storage tanks were required to be processed a second time. Additionally, researchers at the University of Nagoya found the presence of high quantities of Cesium-137 and Carbon-14 in the accumulated groundwater. The ALPS cannot filter Carbon-14, implying that the ‘decontaminated water’ will continue to be highly radioactive once discharged into the ocean.
This act by the government violates the rights of Japan’s indigenous communities, specifically the Ainu, a group of people indigenous to the island of Hokkaido. Persecuted for centuries by Japanese settlers, multiple assimilation policies have been enacted to promote their integration into society. In 1899, the Hokkaido Former Aborigines Act and the Regulation for the Education of Former Aboriginal Children mandated the segregation of Ainu children in separate schools for four years instead of six years of elementary education. As a result of the fewer years of education, poverty and unemployment became pervasive among the Ainu, which perpetuated their social exclusion from the Japanese mainland.
Article 27 of the ICCPR
In a separate incident regarding the construction of a dam on Ainu land, the Sapporo District Court applied the ‘impact principle’ in Kayano v. Hokkaido Expropriation Committee to rule that “[i]n developing and implementing such policies as would produce effects on the culture of indigenous minority groups, the government has a special duty to give adequate consideration to such cultures with a view to avoiding unjust encroachment on their rights.” The Court used two examples to illustrate the cultures that were integral to the Ainu. Firstly, the use of boats that are launched onto the Saru River of the Pacific Ocean in the yearly Chip-Sanke festival and secondly, the prevalence of sacred religious sites located on the mountains surrounding the Saru River, known as Chinomi-Shir. The Court ruled that these activities were “indispensable elements of the Ainu culture which have a close and inseparable relationship with nature and land.”
Adopting the reasoning behind the impact principle in the context of the Fukushima Daiichi disaster, the discharge of radioactive waste into the Pacific Ocean is an illegal act because it encroaches on the rights of the Ainu community, specifically Article 27 of the International Covenant on Civil and Political Rights ‘ICCPR’ and Article 13 of the Constitution of Japan. Article 27 of the ICCPR, which Japan ratified in 1979, states that “persons belonging to minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Article 27 is interpreted as “a particular way of life associated with the use of land resources” and that “the enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities.”
Article 13 of the Constitution of Japan states that “[a]ll of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall be the supreme consideration […] in governmental affairs.” In furtherance of this pursuit of happiness, there exists a “right to enjoy the distinct ethnic culture of the Ainu people, which is the minority to which they belong.” The dumping of radioactive waste impedes the enjoyment of such cultures and rituals integral to the peaceful existence of the community.
The decision must be reconsidered, especially given the fact that there exists storage space for contaminated water beyond 2022 by replacing the present storage tanks with higher capacity ones as well as utilizing off site disposal systems, as stated in a report released by the Ministry of Economy, Trade and Industry Subcommittee on Contaminated Water. These approaches have not been explored as viable alternatives as it would require greater time and coordination in contrast to the easier route of ocean dumping.
The discharge of nuclear waste generated from the Fukushima plant into the Pacific Ocean will be the final nail in the coffin for the rights of the Ainu community. This act could eliminate all traces of a culture that belonged to the first inhabitants of Japan and if the Judiciary fails to step in, Ainu Moshiri or the ‘Land of the Ainu,’ a once flourishing culture, will remain a forgotten memory of Japan’s past.
“File:Fukushima City with a view of Fukushima Station.jpg” by Purplepumpkins is licensed under CC BY-SA 3.0