Alarm bells ringing at the UN

Since 2011, various Japanese human rights groups and NGOs have joined forces to raise concerns with the United Nations (UN) regarding some of the human rights issues that have arisen in Japan in the aftermath of the Fukushima Daiichi accident, accompanied by requests for a UNHRC Special Rapporteur to visit the country to conduct a fact-finding mission and offer suggestions for improvements. In response to these requests, in 2012 Japan was visited by Anand Grover, the Special Rapporteur on the Right to Physical and Mental Health. Grover interviewed relevant government ministries, local authority and prefectural government staff in Fukushima prefecture, and Tokyo Electric Power Company (TEPCO), as well as some of the people affected by the accident, workers at the nuclear plant, citizen groups, and third-party experts. Grover compiled his findings in a report published in 2013, in which he offered advice to the Japanese government on how to address infringements of the right to enjoy health (encompassing both physical and mental health) that he had identified. Key points of his report include:

• - As the risks from low level ionising radiation are still not well understood, the public, and in particular pregnant women and children, should be better protected.
• - A fundamental change in policy relating to support to affected citizens should be adopted, based on an annual radiation dose of 1 millisievert (mSv).
• - Residents, in particular vulnerable groups including women, children, and the elderly, should be included in all decision-making processes pertaining to those affected by the nuclear accident.

Since Grover published his suggestions, other Special Rapporteurs, the UNHRC, UN human rights treaty bodies, and member nations have all made further recommendations to the Japanese government regarding its handling of the Fukushima Daiichi accident. This is a direct result of the efforts of the citizens affected by the disaster and other support organisations making use of the UN frameworks in voicing their concerns. Part of the remit of the Special Rapporteurs is to sound a warning to member countries wherever they observe human rights under threat, and their comments and advice may be regarded as expert opinions based on international standards. It should also be remembered that the Special Rapporteurs are appointed by the UNHRC, of which Japan is a member.

However, despite well justified concerns that have been raised time and again, ten years on from the Fukushima Daiichi accident the Japanese government continues to prioritise self-justification over engaging with the concerns of the international community. The then administration was dismissive of many of Grover’s recommendations. The following response is typical of the government’s stance:

“This has already been carried out… It is believed the effects on health from radiation exposure are less significant than the effects from other causes or non-existent as long as the exposure is at the level of 100 mSv or less… The [recommendation] should be deleted because it is based on prejudgment.”

Multiple perspectives on human rights

In 2015, the Special Rapporteur on the Right to Adequate Housing, in 2016 the Special Rapporteur on Toxics and Human Rights, and in 2018 the Special Rapporteur on the Rights of Internally Displaced Persons respectively requested to visit Japan, to inspect the human rights situation as regards the Fukushima Daiichi accident from different perspectives. None of these visits have yet come to fruition. Although the Japanese government has formally acknowledged the requests, no formal permissions to visit have yet been granted, with no indication that the visits will be allowed to take place in the foreseeable future.

Baskut Tuncak, who until 2020 was the Special Rapporteur on Toxics and Human Rights, wrote to the Japanese government in 2018 to request more information on the working conditions of workers involved in decontamination. The Special Rapporteurs on the Right to Health and Contemporary Forms of Slavery also co-signed this request. Since no adequate response was received from the Japanese government, the Special Rapporteurs issued a joint statement calling on them to do more to shield workers, women, and children from radiation exposure.

At a meeting of the UNHRC in September 2018, Tuncak raised the issue again, asking the government to reassess whether the decontamination of heavily affected areas to which residents are unlikely to choose to return can be justified, even at the cost of exposing decontamination workers to radiation.

“Japan may wish to consider its policy of continuing to expose its workers to radiation based on the justification principle of the ICRP (International Commission on Radiological Protection). The justification principle notes the importance for decisions that lead to radiation exposure to include a public consultation procedure, and to be justified with a net societal benefit. This seems particularly important in this situation because the return rates of populations with higher contamination areas, where [decontamination] workers will be exposed to higher levels of radiation, remain relatively low.”

In addition to his previous requests, Tuncak, alongside colleague Cecilia Jimenez-Damary, the Special Rapporteur on the Rights of Internally Displaced Persons, has also requested a review of government policy surrounding the reopening of former evacuation zones in Fukushima prefecture.

Concerns over potential human rights infringements related to the Fukushima Daiichi accident have now been raised from a number of different perspectives. The suggestions for improvements contained in the ‘Grover recommendations’ were the result of a comprehensive review of the Japanese government’s response to the crisis from the specific perspective of the Special Rapporteur on the Right to Health, and had a remit that included the implementation of evacuation orders and public health monitoring. However, the Special Rapporteurs on the Impact of Toxic Substances and Contemporary Forms of Slavery have also voiced their own concerns regarding the human rights of those affected by the nuclear accident and workers involved in the cleanup operation. Furthermore, it now appears that human rights may have been violated for the many internally displaced people who lived or are still living as evacuees as a result of the Fukushima Daiichi accident. The message coming out of the UNHRC is unambiguous: the rights of Japan’s citizens continue to be threatened from many angles.

Internally displaced persons – an issue that affects everyone in Japan

Internally displaced persons are defined as people who have been forced to leave their homes “in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”. This definition encompasses not only those caught up in natural disasters, but also those who became evacuees as a direct result of the Fukushima Daiichi accident. In Japan, a country used to natural disasters, anybody could find themselves forced to leave their home.

Guidelines for safeguarding the human rights of internally displaced persons include the UN’s “Guiding Principles on Internal Displacement”, established in 1998. These thirty Guiding Principles clarify an unambiguous duty on the part of the state to provide support to its internally displaced citizens, and require, for example, the participation of those affected in decisions related to relocating or returning home, the involvement of women in making plans for support, and a guarantee of equal access to public services, as well as prohibiting discrimination.

The current policies of the Japanese government put pressure on women and children to return to areas where radiation levels persist at a level that would not have been considered safe prior to the accident. In particular, the withdrawal of housing assistance to self-determining evacuees may place them under pressure to return for economic reasons. This stance runs contrary to the spirit of the Guiding Principles.

Cecilia Jimenez-Damary (Special Rapporteur on the Rights of Internally Displaced Persons) explains the values behind the Guiding Principles:

“Internally displaced women and children have been found to bear the brunt of the internal displacement. Their impacts are different and may not be given the attention their needs and human rights require. Since ‘internally displaced persons’ are, as the name suggests, mainly citizens of that country, they are part of the body politic and should be participants in political decision-making. Solutions therefore need to be led by government and in cooperation with society, based on international human rights norms. This is why the protection of human rights is the core of the Guiding Principles on Internal Displacement.”

The Japan Federation of Bar Associations, which has at its heart the mission of “the protection of fundamental human rights and the realization of social justice”, is critical of the government’s response, pointing out that the Guiding Principles are not being adhered to in the case of evacuees of the Great East Japan Earthquake. Due to the lack of an official Japanese translation of the Guiding Principles, much of the population is simply unaware of them, but in 2019 the work of evacuees and their supporters led the Ministry of Foreign Affairs to publish an official translation. This citizen-led action represents one small step on the road to ensuring better protections for human rights in the country.

The relationship between everyday citizens and the United Nations

In June 2020, Tuncak (the Special Rapporteur on Toxics and Human Rights), along with four other special rapporteurs including the Special Rapporteur on the Right to Food, issued a statement expressing concern over the planned discharge of contaminated water from the Fukushima Daiichi plant into the Pacific Ocean.

“The Japanese government has not, and cannot, assure itself of meaningful consultations as required under international human rights law during the current pandemic. There is no justification for such a dramatically accelerated timeline for decision making during the Covid-19 crisis. Japan has the physical space to store wastewater for many years… there are grave risks to the livelihoods of fishermen in Japan and also to its international reputation.”

Fukushima-based citizen groups fighting to stop the discharge of contaminated water into the ocean wrote to Tuncak to express their gratitude for his statement, and he responded in kind, establishing a line of communication between the affected citizens and the special rapporteur.

The UN human rights mechanism is designed so as to allow participation by ordinary citizens. The Human Rights Council (Special Procedures) can be utilized to present opinions, report incidents, and share information with the Special Rapporteurs. In order to ensure the proper implementation of human rights protections, a system known as the Universal Periodic Review (UPR) has been established, such that member states monitor one another’s human rights situations. Fact-finding visits often make use of information provided by non-governmental organisations, another channel through which citizens are able to interact with the UN. In each case, the human rights policy framework is designed to be developed and implemented under the scrutiny of ordinary citizens.

Recommendations by UN human rights treaty bodies, as well as international human rights law, also have an impact on domestic legal processes. Indeed, both have been used in Japanese legal cases relating to compensation claims by victims of the Fukushima Daiichi accident. The process by which citizens raise their concerns regarding the human rights situation in their country with the UN and the Special Rapporteurs then investigate and report their findings provides a source of valuable material that can be put to use by citizens campaigning for their rights. The UN human rights bodies represent powerful tools for improving the circumstances in which we all live.

Individual awareness of human rights

No matter where you look around the world, it is always possible to find cases where human rights are not being respected. The Special Rapporteurs and the Universal Periodic Review system provide a means of giving advice to countries on certain changes that could be made to enable an improvement in the overall quality of society. Although the recommendations are not legally binding and there is no obligation to implement them in full, they do place the recipient country under scrutiny in terms of how the government chooses to respond. Unfortunately, the Japanese government’s response to date could be interpreted as a failure to fully acknowledge the human rights of those affected by the Fukushima Daiichi accident. If we are to see meaningful improvement in this area, it is important that individual citizens come to recognize the rights to which everyone is entitled.

Jimenez-Damary puts it succinctly:

“Internally displaced persons are often denied the rights that are usually enjoyed by the entire population – which means human rights in that country are not universal. Society must therefore be aware that the denial of human rights to any portion of the population is actually denial to the citizenry.”

Over the past ten years, we have seen the human rights of Japan’s citizens, often under-protected at the best of times, being eroded to an even greater extent in the wake of the joint natural and human disasters of the Great East Japan Earthquake and the accident at Fukushima Daiichi. It is time to reaffirm the rights to which we are entitled, and not only be prepared to stand up for ourselves if we find our rights under threat, but also to recognise and speak up against threats to the rights of others. Our own awareness as citizens is the key to creating a society that treats its members more humanely.

• *Baskut Tuncak served as the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes (also known as the Special Rapporteur on Toxics and Human Rights) from 2014 until July 2020, for a total of six terms.