South Korean environmental activists display pictures of fishes with radioactivity warning signs during a protest against Japan's decision on releasing Fukushima wastewater, near the Japanese embassy in Seoul on April 13, 2021. Photo: AFP

The Japanese government made a final decision on April 13 to discharge contaminated radioactive wastewater from the Fukushima Daiichi nuclear plant into the sea. They did this by ignoring the doubts and objections of its neighboring countries and the international community. Japan has acted in defiance of the world, arousing great indignation among Chinese people and an uproar in the international community.

South Korea will be the first country to be directly victimized and it took the lead in responding strongly. South Korea President Moon Jae-in said officials should look into ways to refer Japan's move to the International Tribunal for the Law of the Sea (ITLOS), including filing for an injunction.

South Korea's proposal has examples to follow in international judicial practice. In the Pulp Mills on the River Uruguay case, Argentina filed a lawsuit with the International Court of Justice (ICJ), saying that Uruguay failed to inform Argentina of the operations of the pulp mills and failed to prevent pollution. Argentina requested the court to take provisional measures to make Uruguay suspend the construction before the final ruling.

And in the Mox Plant case between Ireland and the UK, Ireland believed that there were hidden dangers behind the UK's nuclear activities. Ireland submitted the request for provisional measures to the ITLOS to prevent the plant from being put into operation.

In the Pulp Mills on the River Uruguay case, the ICJ ruled that although Uruguay failed to inform Argentina of the operations, it did not pollute the river, so closing the pulp mill was unjustified. But the court also stated that if Argentina prevailed on the merits, Uruguay would bear all risks of having authorized and constructed the mills. Likewise, in the Mox Plant case, the court did not support Ireland's request. But the court also requested Ireland and the UK to monitor risks and the effects of the MOX plant for the Irish Sea.

Therefore, in terms of Japan's discharging contaminated radioactive wastewater, it is feasible for South Korea to apply it to the ITLOS or the ICJ for provisional measures, so as to temporarily ban Japan's decision.

Discharging contaminated radioactive wastewater involves many principles and obligations of international law, and is embodied in many conventions. In accordance with the conventions, Japan shall fulfill its obligations under general international law to protect and preserve the marine environment, and shall cooperate with neighboring countries or countries that will be affected by the discharge of contaminated water from the Fukushima nuclear plant to implement international rules and standards applicable to prevent, reduce and control pollution of the marine environment.

In addition, the discharge of contaminated radioactive wastewater also involves the responsibility of nuclear safety. As a country having jurisdiction over a nuclear facility, Japan should assume state responsibility for the safety of nuclear sewage under its jurisdiction and the substantial damage that will be caused. 

If South Korea applies for provisional measures or files a lawsuit to the ICJ or the ITLOS, though there will likely be a lack of evidence of material harm as in the Uruguay and Mox Plant cases, the international judicial body will also further require the two sides to cooperate, exchange information and examine the impacts and hazards to the marine environment.

However, it should be pointed out that there are obvious shortfalls in South Korea's discussion of applying for provisional measures. According to Article 283(1) of the United Nations Convention on the Law of the Sea (UNCLOS), "When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means." In addition to the diplomatic protests, South Korea should also submit a special note verbale on the settlement of the legal dispute between it and Japan over the discharge of contaminated radioactive wastewater to meet the requirement of judicial procedure. 

It should also be pointed out that in addition to applying for provisional measures, South Korea has two other options for international judicial proceedings: one is to initiate arbitration proceedings under Annex VII of the UNCLOS. The second is to submit an advisory opinion requirement to the international judicial body. 

South Korea could follow the successful example of Mauritius in its recent case against Britain over the Chagos Islands. It used a combination of legal actions in its response to the dispute. First, submit the dispute over the discharge to the UN general assembly. Second, refer the dispute to the UN Security Council for a decision. Next, refer the dispute to the ICJ for a legal advisory opinion. Last, refer the case to the arbitration procedure under Annex VII of the UNCLOS.

The practice of South Korea dealing with Japan's move to discharge contaminated radioactive wastewater is of reference significance to China. China and Japan are located across the sea. China may become one of the biggest victims to bear the brunt.

In dealing with the issue of Japan's discharge of contaminated radioactive wastewater, China should timely adjust its traditional position and policy on the judicial settlement of international disputes. It should actively consider making good use of the international judicial arbitration procedures. This will allow it to safeguard China's maritime rights and interests as well as the common interests of mankind.

Gao Zhiguo is president of the Chinese Society of Law of the Sea and former judge of the International Tribunal for the Law of the Sea; Qian Jiangtao is a PhD candidate from China University of Political Science and Law. opinion@globaltimes.com.cn