There's Something in the Water: The Inadequacy of International Anti-Dumping Laws as Applied to the Fukushima Daiichi Radioactive Water Discharge

I. INTRODUCTIONOn March 11, 2011, a 9.0 magnitude earthquake and a resulting tsunami struck the coast of Japan.1 These catastrophic events significantly damaged several nuclear power plants.2 The Japanese Government almost immediately recognized the severity of the damage at Tokyo Electric Power Company's Fukushima Daiichi power plant, declared an emergency, and ordered the evacuation of approximately 20,000 surrounding residents.3Within days of the earthquake and tsunami, the Fukushima Daiichi plant experienced two explosions, which resulted in radiation levels just outside the plant equivalent to one year's worth of allowable exposure.4 The plant operators flooded the damaged reactors with water as a "last-ditch" effort to cool the plant.5 The Japanese Government ultimately issued evacuation orders to more than 200,000 Japanese citizens.6 In the aftermath of the damage to the Fukushima Daiichi power plant, radioactive water had both leaked and been dumped directly into the ocean.7 Japan's dumping of radioactive water has led commenters to question the efficacy of the international framework for radioactive ocean dumping.8This comment examines how two sets of international agreements apply to dumping from the Fukushima Daiichi power plant. Part II discusses the details of the natural disaster, the specific instances of dumping as well as the upkeep of the plant. It further provides necessary background on the London Convention and Protocol and the U.N. Convention on the Law of the Sea ("UNCLOS").9 Part III analyzes the applicability of the London Convention and Protocol and the UNCLOS to the radioactive water discharge at the Fukushima Daiichi power plant.10Part IV presents recommendations that fill the gap in the existing international legal framework addressing the dumping of nuclear waste from land-based sources into the ocean.11 First, states should adopt a treaty designed to control land-based sources of ocean dumping based on the framework established in the London Convention and Protocol. Second, states should develop a treaty that appropriately accounts for factors that decision-makers balance when attempting to avert a nuclear crisis; it should include special consideration for coastal facilities. Third, in developing that agreement, states should look to the lessons learned from the planned disposal and trade of hazardous and nuclear waste, including oversight and readiness standards.II. BACKGROUNDA robust understanding of the events that caused the emergency at the Fukushima Daiichi power plant is required to determine if the actions taken by the officials violated international law. Part A examines the impact of the earthquake and tsunami, as well as the specific instances of ocean dumping and historical upkeep of the Fukushima Daiichi plant.12 Part B discusses relevant international law, starting with the London Convention and Protocol, followed by UNCLOS.13A. SPRINGTIME IN JAPAN: AN EARTHQUAKE, A TSUNAMI, OCEAN DUMPING, AND POWER PLANT UPKEEP1. Timeline of the Disaster, Immediate Response, and Subsequent DumpingThe Fukushima Daiichi power plant was significantly damaged by the earthquake and tsunami that hit Japan on March 11, 2011, and many feared the damage presented an imminent nuclear crisis.14 The damage caused by the dual disasters resulted in the failure of diesel backup generators installed at the plant to run the cooling system.15 As a result, plant operators flooded an overheating reactor with water to manually cool it.16 This action vented some of the resulting steam, leading to elevated radioactivity in the air.17On Saturday April 2, 2011, about three weeks after the tsunami initially hit, Japanese safety officials discovered that a leak in a maintenance pit had discharged highly radioactive water directly into the ocean.18 Two days later, on April 4, 2011, the plant's operators began to intentionally dump 11,000 tons of radioactive water directly into the ocean in order to make space in storage facilities for more highly radioactive water that was used to cool the reactors. …