President Moon ordered Japan's'cheap decision' to review its response under international law

On the 13th, the Japanese government decided to dump radioactive water from the Fukushima nuclear power plant into the sea two years later. The Japanese government sets a limit of 60,000 becquerels (㏃) per liter of tritium when it is released into the ocean. The Japanese government made this decision, evaluating that, in light of its achievements so far, stable monitoring is possible if it is released from the sea.

The Japanese government said it decided to release the water at sea because if the situation where water tanks were lined up at the Fukushima nuclear power plant site was not changed, it would seriously interfere with future decommissioning operations. In other words, the Japanese government has stored contaminated water in about 1,000 tanks so far, but by the fall of next year, the tank capacity is insufficient, making it difficult to store any more. The Japanese government insisted that there will be "no problem" because it will remove radioactive materials from contaminated water through a multi-nuclear removal facility called'Alps' and dilute and discard tritium that cannot be removed.

However, no matter how diluted, the total amount of radioactive material does not change. According to data released by Tokyo Electric Power Co., Ltd. in December of last year, it is known that even though Tokyo Electric Power Co., Ltd. had already purged with'Alps' equipment, it was not able to filter out half of the radioactive material in contaminated water. In addition, it is difficult to estimate the impact on marine ecosystems as the damage has not been accurately verified even for large-scale discharge of tritium for a long period of time. The Japanese government saves costs by leaving other options, such as storing contaminated water in an onshore tank for a long time and discharging it over the half-life of harmful substances. This is why criticism pours out about whether or not it was done.

Furthermore, it is reported that the Japanese government did not inform the Korean government of any information critical to understanding the impact on the marine environment.

In a meeting with reporters on the 13th, an official from the Ministry of Foreign Affairs told reporters on the 13th that the Japanese government moves contaminated water from tanks on the site of the nuclear power plant to the sea. He said he did not respond to the Korea Nuclear Safety Commission.

On the 14th, President Moon Jae-in ordered the International Maritime Law Court to actively consider ways to seek and file provisional measures.

In fact, it was ordered to review the response under international law to prevent the Japanese government from making irresponsible decisions.

Accordingly, the Office of the Blue House Legal Affairs Office is under legal review.

If Korea-Japan argues over contaminated water, it must go through the Arbitration Tribunal in Annex 7 of the UN Convention on the Maritime Law.

In accordance with Article 287, Paragraph 1 of the Convention on the Law of the United Nations, when the parties to the Convention have a dispute with other States, there are a total of four: ① International Court of Justice, ② International Court of Maritime Law, ③ Arbitration Tribunal in Annex 7, and ④ Special Arbitration Tribunal in Annex 8. You can choose where to go in the middle.

If there is no declaration of where to go, or if the parties to the dispute disagree, they are automatically filed with the'Annex VII Arbitration Tribunal'.

The same is true of Korea and Japan.

Neither country has ever declared where to go, so if you argue over the issue of contaminated water in Fukushima, you will have to go through the Arbitration Tribunal in Annex 7.

The parties to the dispute usually also apply for interim measures in the form of'application for temporary injunction' on the day of filing a complaint or after a while.

Assuming that the Korean government is filing a lawsuit today (the 20th), it will be together today (the 20th) to file the main complaint and interim measures.

Then, the arbitral tribunal in Annex 7 of the UN Convention on the Law of the Sea immediately enters into the formation of the court.

The formation of the judiciary will take 1 to 2 months if agreement between the parties to the dispute is reached quickly, but it will take more than 5 months if it takes time.

If the Korean government filed a lawsuit today (20th), there is a possibility that the court will only be organized in September and October this year.

Lee Ki-beom, a professor at Yonsei University Law School, said, "The time of filing a complaint against China on the South China Sea issue that the Philippines filed against China in the Arbitration Tribunal of Annex 7 was January 21, 2013, but the arbitral tribunal was formed at the end of June, and it took only five months. It’s done,” he explained.

Requests for interim measures in the case of'temporary injunction' can also be made to the'International Maritime Court'

If it takes a long time to form a court, the parties to the dispute will be interim court of the International Maritime Law Court two weeks after requesting the arbitral tribunal in Annex VII to the UN Convention on the Law of the Sea in accordance with Articles 290, paragraphs 1 and 5 of the Convention on the Law of the Sea. You can ask for action. In other words, if you file a lawsuit today (20th), the time when you can request an interim measure from the International Maritime Court is on May 4th. Then, the International Court of Maritime Law examines the jurisdiction of the United Nations Convention on the Law of the Sea and decides whether to take interim measures. When interim action is made, the decision usually comes within a month or two. If the time of requesting interim measures to the International Maritime Court is May 4th, the interim measures will come out from June to July as early as possible.

However, a provisional measure is literally a provisional measure. It is not a decision on the main bill, so it is a temporary measure to extinguish an urgent fire. Nevertheless, experts emphasize that in order to receive such interim measures, it is necessary to prove that it is a'realistic and imminent risk'. Professor Kim Hyun-jung of the Department of Political Science and Diplomacy at Yonsei University said that the parties to the dispute "must prove two things." The first is that there is an urgent demand to preserve the interests of the parties, and the second is that there is a serious and urgent concern for damage to the protection of the marine environment. "I will." Professor Kim said, "The International Maritime Court will take interim measures only when such realistic and imminent dangers are proven, and the level is entirely determined by the judgment of the judiciary."

Professor Kim cited the case of Ghana and Ivory Coast as examples that the Korean government should consider as'a half-myeon teacher'. Ghana and Ivory Coast had conflicting waters that each claimed to be their own waters. Oil and gas were buried in these waters, equivalent to 10% of Ghana's gross domestic product. In response, Ghana conducted oil drilling activities in the conflict waters, and called for interim measures, saying that Ivory Coast would seriously damage the marine environment. However, while the court was concerned about the possibility of serious damage, it was not fully proven that it poses an imminent danger, and has virtually given Ghana's hand. Professor Kim emphasized, "Even if you look at such a case, you need to prove not only the possibility of serious damage to the marine environment, but also how imminent danger it is."

There is another representative example that the Korean government can refer to. This is the 2001 case of the Mox plant (MOX: plutonium-uranium compound extracted from spent nuclear fuel) in the UK and Ireland. On October 25, 2001, Ireland appealed to the Arbitration Tribunal of Annex VII and demanded interim measures, claiming that if Mox was produced at a factory built in Sellafield on the west coast of England, radioactive material could cause marine pollution. Then, two weeks later, on November 9, the International Maritime Law Court again requested interim measures. The International Maritime Law Court imposed provisional measures on December 3, 2001, about 40 days later. The interim measures taken by the International Maritime Law Court at the time were a request for cooperation between the two countries to exchange additional information on possible impacts on the Irish waters, monitor the risks and impacts on the Irish Sea, and take measures to prevent marine pollution. In other words, the request that Ireland wanted to shut down the plant was not accepted.

There was a reason why such provisional measures such as'information exchange' and'bilateral cooperation' were inevitable. Lee Ki-beom, a professor at Yonsei University Law School, said, "The time when Ireland requested provisional measures at the same time as the complaint was when the permit for the operation of the British factory was issued." , "There was a provisional measure to take other measures," he explained. In other words, from the position of the International Maritime Court, It is explained that it has put in place the maximum interim measures that can be taken when the UK plant is not in operation yet.

Unconditional'quick response' is not good...

'Strict preparation' is even more important

As you can see from the previous case, it is not always possible to respond quickly.

We also need a strategic approach aiming at'the right timing'.

Professor Kim Hyun-jeong of the Department of Political Science and Diplomacy at Yonsei University said, "If you request interim measures at this time, not at the time when the discharge is imminent, it may be difficult to meet the requirements." I expected.

Professor Ki-beom Lee of Yonsei University Law School also shared the importance of timing.

Prof. Gibeom Lee said, "If the Korean government makes a complaint about next fall, which is about a year and a half from now, it will be subject to interim measures about the winter of next year, two months later," he said. "If you take interim measures before the start of Japan's release, the effect will be maximized. It will be."

If so, how long will it take for the main agenda process, not a provisional measure, which is a temporary measure? Professor Ki-beom Lee said, "Of course, if the parties to the dispute agree, some of the processes can be skipped, but it usually takes about four years from the filing to the conclusion of the main bill." The specific procedure is as follows. When the Korean government files a complaint with the Arbitration Court in Annex 7, the court will set up a court within about 5 to 6 months. The judiciary, thus constituted, asks the Korean and Japanese governments to submit their respective pleadings within a specific time limit. The deadline is different for each judgment, but it is known that the deadline is usually about 8 to 9 months. The Korean government, the party that filed the complaint, first submits a pleading letter within about 8 to 9 months, and then the Japanese government submits an objection against it within about 8 to 9 months. The arbitral tribunal of the Arbitration Tribunal in Annex 7 under the UN Convention on the Law of the Sea will meet again for about a year after receiving documents from the Korean and Japanese governments within about two years. After that, it takes about 7 to 10 days for a public hearing, and spends about 6 months to write the judgment.

Experts contend that the most important thing is thorough'preparation of the original plan'. At the time when the Korean government will file a lawsuit with the request for interim measures to the Arbitration Tribunal in Annex 7 under the UN Convention on the Law of the Sea, it is necessary to make full preparations so that it can file a'complete claim'. Professor Ki-beom Lee emphasized, "If the government is filing a lawsuit for'winning', it is necessary to carefully consider which of the overseas law firms specializing in international law will be appointed, and exactly which UN maritime law was violated by Japan's discharge of contaminated water from Fukushima." I did. Professor Lee said, "Because the complaining party is responsible for proof, we will have to thoroughly prepare for this," said Professor Lee. "If you do this, it will take about a year to prepare the main draft. The preparation should be done properly from now on whether it is one or two years. "I said.

Professor Lee cited the ruling of the Arbitration Tribunal in Annex 7 of the UN Convention on the South China Sea, which the Philippines filed against China in 2013 as an example of the Korean government's reference.

At the time, after a three-year and six-month hearing in 2017, the court ruled that China had no legal basis for claiming the majority of the South China Sea, and thus gave the Philippines a hand.

Professor Ki-Beom Lee explained that this case of the South China Sea, although not an environmental issue, reminds the Korean government that'thorough preparation is essential'.

Professor Lee explained, "The Philippine government has been preparing for a trial for several years since the beginning of 2010. Through that thorough preparation, we were able to win the result from the Philippine standpoint."

Can'contaminated water discharge' be prevented in advance through provisional measures?

If so, can the discharge of contaminated water in Japan be prevented with only provisional measures in the form of'temporary disposal'?

The response of experts was "depending on how well you prepare," but it did not close the possibility.

An expert on maritime law who requested anonymity said, "I understand that there is no cited case of stopping pollution-causing activities in relation to the marine environment." "We cannot rule out the possibility of a judgment that it should not be released until it is released."

However, most experts believe that there is a high possibility that provisional measures such as'information sharing' and'bilateral cooperation', like the'Mox Plant' case, will be taken.

Kim Min-cheol, director of the Yumin Institute for International Law, said, "If you ask what provisional measures are expected at this time, it is likely that there will be a measure of'cooperate and consult between the parties to the dispute.'

Director Min-cheol Kim cited the case of a problem between Singapore and Malaysia in 2003.

At that time, Malaysia requested a provisional action against Singapore, which operates a reclamation project at the maritime boundary, and filed a case with the arbitral tribunal of Annex 7, saying that it was a "violation of marine environment pollution" and saying, "Please let Singapore stop the reclamation activity itself." .

At that time, it took time to form a court, and the International Maritime Law Court took interim measures, but as a result, there were no provisional measures to stop the reclamation project in Singapore.

Director Kim Min-cheol said, "The Mox plant, which is the previous case, has not even decided that the judge of the Singapore reclamation project'do not do this,'" he said. "Based on such precedents, the discharge of contaminated water in Fukushima and the measures to stop the discharge. It is more likely that the conclusions of discussions and information exchange between the Parties will come out,” he predicted.

Can the'decision to release Japan' be withdrawn from the main bill ruling?

If so, could there be a binding decision to the effect of ``withdrawal of the decision to release Japan from Fukushima'' as the original decision of the arbitral tribunal in Annex 7 of the UN Convention on the Law of the Sea? First of all, looking at precedents, it is close to hopeful thinking to see that the probability is high. This is because there have been few cases in international courts accepting rulings against certain states to prevent certain actions in the future. In general, it is the basic position of international precedents that the judiciary plays the role of an international court just by declaring that there is a violation of international obligations. Therefore, if the arbitral tribunal judges in Annex 7 of the UN Convention on the Maritime Law, there is a high possibility that a declarative ruling to the effect of ``the Japanese government's decision to release discharge violates certain regulations to protect the marine environment under the UN Convention on the Maritime Law'' is high. This is a general observation by experts.

Professor Lee Ki-beom said, "Of course, it depends on how the Korean government writes the complaints and pleadings well." I said. Professor Lee said, "If Korea will not file a lawsuit jointly with other countries, it will not seem easy to get the result of asking Japan to cancel the cabinet decision." However, Professor Lee showed a cautious position, saying, "Depending on how the Korean government writes the warden and pleadings, the judiciary will be able to add more information on the decision to release more in a more proactive and concrete manner." therefore " "If the court declares Japan violating the Convention on the Law of the Sea, common-sense countries will take measures to halt discharges even if the results are of that degree."

A maritime law expert who requested anonymity said, "It depends on how you plan your litigation strategy, so we can't predict it, but for now, we're a bit skeptical about the prediction that the court will rule'you shouldn't release it.'

However, the expert said, "Looking at the recent ruling trends and attitudes of international courts,'precautionaryism', which requires taking precautions before actual environmental pollution occurs, tends to be adopted as an important legal principle in international precedents." Considering this, it doesn't seem like a completely impossible story to put pressure on Japan through a lawsuit.”

'Diplomatic consultation' after the ruling is also important...

You need to be thoroughly prepared for the entire process

In addition, experts stress that no matter what judgment comes out, it is important to have a diplomatic consultation between the parties on how the parties will implement the judgment, and that'after the judgment' is also important. A maritime law expert who requested anonymity said, "Since the process of diplomatic negotiations with each other remains final, the more important thing may be to conduct joint investigations on radioactive contamination measurements in the waters of Fukushima, Japan, or to share the information." .

In fact, the International Court of Justice ruled in February 2019 that the UK should return the Chagos Islands to Mauritius as soon as possible. At the time, the British maintained the position that'the Chagos system is still British and the International Court of Justice's judgment is only an advisory opinion, so it is not legally binding.' Nevertheless, the UN General Assembly respected the opinion of the International Court of Justice and passed a resolution in May 2019, three months later, calling for Britain to hand over control of the Chagos system to Mauritius within six months. In the voting at the time, 116 of the 193 UN member states voted in favor, 56 withdrew, but only six countries supported Britain, including the United States.

Japan lost in the case of the International Whaling Regulation Violation Convention filed with the International Court of Justice in 2014. The Japanese government canceled the whaling program in the year when the ruling was defeated, and created a new whaling program by improving and supplementing the problems pointed out in the ruling at the time. China also declared that it would not implement the South China Sea case, which was concluded in 2017, saying that it was a ``judgment that was not effective,'' but it took some compromised measures, such as making some of the previously blocked fishing on the Philippine side possible and starting negotiations. I have started. Whether it is a declarative or a performance decision, the arbitral tribunal's decision has a strong meaning in the international community in itself, although there is no practical means to enforce its implementation. The implications in the political process are that if the judiciary defines the discharge of Fukushima contaminated water as a mistaken judgment by the Japanese government, global public opinion will continue to monitor Japan's actions and require policy to be set in a manner consistent with international environmental law or UN maritime law conventions. I can't underestimate the effect either.

Once a decision has been made in the Arbitral Tribunal in Annex VII to the UN Convention on the Law of the Sea, no further appeals or proceedings can be conducted. Even if the Korean government comes to a'lose' conclusion that narrows Korea's position, it means that it cannot be overturned. Therefore, if the Korean government actually responds to international law, it will have to thoroughly prepare for the entire process, from preparation for the main complaint and response to provisional measures, as well as the diplomatic implementation stage.    

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