The unprecedented decision by Japan to discharge over one million tons of contaminated water into the Pacific Ocean collected at the Fukushima Daiichi nuclear power plant in Japan, a catastrophic meltdown site, has prompted sharp criticism both in Japan and internationally. Local fishermen, fishing sectors, and their neighbouring nations, particularly China and South Korea, have voiced significant opposition. This article addresses the discharge of contaminated water from the Fukushima nuclear accident into the ocean or the environment and how it would imperil a whole slew of human rights and livelihoods concerning Indigenous peoples who depend exclusively on fishing for earnings and sustenance.

INDIGENOUS RIGHTS OF THE AINU COMMUNITY

The Ainu People of Japan have been internationally endorsed as Indigenous people since 2008. The discharge of millions of tons of contaminated water would undoubtedly prejudice their customary fishing practices, an important element of their culture and identity and would violate their social and cultural rights.

Individuals belonging to minorities must not be deprived of the right "to enjoy their own culture," enshrined under article 27 of the International Covenant on Civil and Political Rights (ICCPR). Indigenous peoples also possess the right to "practice and revitalise their cultural traditions and customs" under article 11 and to "dignity and diversity of their cultures," under article 15 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Respect for Indigenous knowledge, customs, and traditional principles is further underlined in the UNDRIP's Preamble as essential to “sustainable and balanced development and effective environmental management”. Regarding the enjoyment of cultural rights recognised under article 27, the UN Human Rights Committee (UNHRC) in General Comment No. 23 recognises that culture comes in many forms, including those related to land use, particularly among Indigenous peoples.

Traditional practices such as fishing and hunting, as well as the ability to reside in legally-protected areas, may be included in this right as observed by UNHRC in Lubicon Lake Band v. Canada. The exercise of those rights may necessitate positive legislative safeguards as well as mechanisms to guarantee that members of minority communities are effectively involved in decisions that impact them. The decision to discharge the contaminated water without consultation with the people of Ainu violates their Indigenous right of culture and customary identity.

AINU INDIGENOUS’ RIGHTS TO FREE, PRIOR, INFORMED CONSENT

Another fundamental component of a person's right to culture is the state's obligation to ensure that Indigenous peoples and minorities can enjoy their cultural lives which involves the right to free, prior, and informed consent of Indigenous peoples. As outlined in the Länsman et al v. Finland and Jouni E. Länsman et al v. Finland, the state has an obligation to engage Indigenous peoples and minority groups prior to any planned actions that are likely to influence them.

The right to self-determination, which is proclaimed in article 1 of the ICCPR, is connected to the notion of free, prior, and informed consent (FPIC). Article 27 of the ICCPR and article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) have progressively structured the right to self-determination through the protection of the right to establish and maintain cultures. Furthermore, article 3 of UNDRIP also obligates states to consult and interact with Indigenous peoples in good conscience to protect their FPIC before authorising any initiative that may damage them or their resources. 

However, the Japanese government does not appear to have a decent track record when it comes to protecting the right of the Indigenous Peoples of Ainu to FPIC, as observed in the industrial effluents disposal base near the Mobetsu River in February 2010 and a terminal disposal site in the Suttsu and Kamoenai townships in Hokkaido.  

ENVIRONMENTAL CONCERNS

The discharge of Fukushima wastewater is an international issue not only because it influences our linked oceans and seas, but also because it represents a significant threat to fundamental human rights. From a broader perspective, the Fukushima wastewater decision violates the right to a safe, clean, healthy, and sustainable environment, both in spirit and in law. When scientific data regarding potential consequences or impacts on the environment or human health is “not clear,” and the concerns are significant, the state is obligated to initiate a “precautionary approach,” which mandates nations to take preventive measures. Therefore, Japan must act following the “principle of due diligence,” which necessitates governments to take all possible and necessary steps to avert any damage to the international community that may be caused by their conduct.

Subsequently, Japan must include the fundamental rights of Indigenous peoples in its decision-making framework, mandate comprehensive interaction with traditional communities whose lives may be impacted, engage in FPIC, and reconsider the decision.