IBA - International Bar Association

04/08/2021 | Press release | Distributed by Public on 04/08/2021 08:30

Courts order Japanese government to pay damages for historic nuclear disaster

In mid-February, the Tokyo High Court ruled that the Japanese government and nuclear plant operator Tokyo Electric Power Company (Tepco) should pay a total of JPY 278m (approximately $2.6m) in damages to a group of survivors of the 2011 Fukushima nuclear disaster.

The ruling came ahead of the ten-year anniversary of the major Tohoku earthquake, which killed and displaced thousands of people. The tsunami caused by the earthquake led to the meltdown of three nuclear reactors at the Fukushima Daiichi Nuclear Power Plant, operated by Tepco.

In September 2020, the Sendai High Court ordered the state and the plant operator to pay approximately $9.5m in damages in total to 3,550 plaintiffs, finding both negligent for not taking measures to prevent the disaster. The plaintiffs had sought $265m in the form of monthly compensation of $470 each until radiation in the affected region subsided.

'I'm not sure these high court verdicts will improve the accountability of the government

Daisuke Takahashi
Vice Chair, IBA Business Human Rights Committee

A spokesperson for Tepco tells Global Insight that the company would 'once again like to sincerely apologize for the grave inconvenience and concern that the Fukushima Daiichi NPS Accident has caused amongst the residents of Fukushima Prefecture, and society as a whole'.

The spokesperson adds that, after carefully reviewing both the Tokyo High Court's verdict and that of the Sendai High Court, the company decided to appeal both decisions, a process which is still underway in each case. The Japanese government has reportedly also appealed the rulings.

For Daisuke Takahashi, Vice-Chair of the IBA Business Human Rights Committee and a partner at Shinwa Sohgoh Law Offices in Tokyo, the impact of the rulings will not extend much beyond the compensation for survivors in this and future successful cases.

'I'm not sure these high court verdicts will improve the accountability of the government', he says. 'That's a political issue of democracy. As a lawyer I believe in the power of the judiciary, but the judiciary is just part of it and the more important thing is people raising their voices and voting.'

'Everyone wants to say government should be more accountable and company processes should be transparent and accountable,' he adds, 'but we need to fill the gap between the reality and this kind of ideal. How to do that going forward is difficult. These verdicts can be one element but there are other elements where things need to be improved, and not just in Japan but in other countries too.'

Having worked with some Fukushima survivors previously, he believes that 'probably, what victims want is not necessarily only an apology or confirmation of liability, but the opportunity for compensation and other remedy. Some of them really want to go back to their hometown, but they cannot. Providing alternate facilities for housing, like community housing, elsewhere, is not enough. They want to go back,' he says.

And liability and these practical remedies, Takahashi argues, do not have to go hand in hand. For example, with current business and human rights issues, while it is not always possible to ascertain liability, a company, government or another stakeholder can sometimes provide an organised multistakeholder initiative to provide remedy or improve a situation. 'This might be more practical', he says.

He adds that 'the remedy scheme in the alternative dispute resolution mechanism the government created just after the nuclear power plant disaster can provide a lot more compensation than the normal standard from the court - even for reputational damage and other new areas of damage courts might not recognise in Japan'.

'This is probably not enough, but is a practical way of providing a kind of fast track remedy', says Takahashi.

Despite these high court rulings, the question of liability has not proven straightforward. Between the September Sendai ruling and that of the Tokyo High Court in February, another presiding judge on the Tokyo High Court in January did not recognise government responsibility. Fourteen lower court rulings have been evenly divided on the question.

The government had argued that it could not have predicted the tsunami or prevented the nuclear disaster, while Tepco claimed to have already fulfilled its government-mandated compensation requirements.

The two high courts that ruled against the government determined that the state failed to act on an expert report released in 2002, which acknowledged the possibility of a large tsunami hitting Fukushima. In the Tokyo High Court verdict, the judge said it was unreasonable for the government not to have used its regulatory power to order Tepco to take preventative measures.

Takahashi notes that 'this is a similar situation for the climate change issue now. Everyone agrees that climate change will cause extraordinary natural disasters, but we do not know exactly when or how.'

Japan's Supreme Court is expected to eventually consider the issue and deliver a ruling covering all the high court cases, but Takahashi says this ruling is far away, and 'the Supreme Court usually takes constitutional cases or issues of other material breaches of the law. We don't know whether they will give a substantial verdict or not.'

He adds that while some may say a substantive ruling would be meaningful, he believes 'the issue is that the government failures occurred ten years ago and even before'. He's unsure, therefore, if 'the verdict will necessarily motivate the government to really improve and learn from these mistakes'.

Regardless of whether the government is liable or not, he adds, the Tepco compensation is practically provided by the Japanese government.

'They already know how much the nuclear disaster cost the country. They already know, so a substantial Supreme Court decision is in some ways meaningful but various measures need to be taken, some of which already have been, to improve the future practice and accountability', he says.

In a statement following the Sendai High Court ruling, plaintiff Kazuya Tarukawa argued that the compensation was not as important as the larger question the ruling raised regarding the long-term risks of the nuclear industry. He asked, 'what will come of Japan if there is another disaster like that?'

In Takahashi's view, 'we cannot simply say nuclear energy was not necessary or shouldn't have been pursued, especially looking back at the role of nuclear power in the history of economic development in Japan and other issues'.

Takahashi suggests that we can perhaps retroactively say that Tepco should have done more due diligence, but he highlights that the mandatory human rights and environmental due diligence regulations being brought in across Europe now are a concept that was only recognised internationally in 2011, the same year the disaster happened.

He says that due diligence helps companies defend themselves against liabilities and probably improves practices and goes some way towards preventing some things, 'but it's not a complete answer'.