JAPAN

Title:
Regarding the immediate appeal against the decision to dismiss the application for a preliminary injunction (Original judgment: Fukushima District Court, Koriyama Branch, 2011 (Yo) Number 29)

Court:
Sendai High Court, Second Civil Division

Date:
24 April 2013

CRC Provisions:
Article 3.1: Best interests of the child

Other International Provisions:
2007 Recommendations of the International Commission on Radiological Protection
2010 Recommendations of the European Committee on Radiation Risk

Domestic Provisions:
Constitution of Japan, Articles 13, 25, 26.1 and 26.2
School Education Law, Articles 12, 38, 40 and 49
School Environmental Health and Safety Law, Article 26

Case Summary:
Background:
Following the Fukushima nuclear disaster in 2011, a group of 14 children (“plaintiffs”) from Koriyama City brought a case against the government, arguing that conducting education in schools in an area with dangerous levels of radiation violates the legal requirements to provide education in a safe environment. Specifically, the plaintiffs sought an injunction against the government to: (1) stop conducting education in schools where ambient radiation at a measurement height of one metre is 0.193 microsieverts per hour or more; and (2) require that education be conducted in schools where ambient radiation is less than this level. In December 2011, the District Court of Koriyama rejected the plaintiffs’ application for an injunction. The plaintiffs appealed this decision to the Sendai High Court; at the time of the appeal, only one of the plaintiffs remained at a school in the relevant area.

Issue and resolution:
Safety of school facilities. The Court denied the appeal on the grounds that all of the plaintiffs no longer attending school in the relevant area had no right to demand an injunction, and that the remaining plaintiff had not met the elements required for an injunction.

Court reasoning:
The Court held that all of the plaintiffs no longer attending school in the relevant area had no right to demand an injunction since they had since graduated or left the area.

Regarding the one remaining plaintiff, the Court provided the following reasons:

1. While the radiation levels in the school failed to meet the safety threshold in the long term, the environment outside of the school within the same city exposed the plaintiff to unsafe levels of radiation as well. Furthermore, the radiation levels in the school were lower than the average radiation levels across the city. Therefore, the requested injunction would not allow the plaintiff to achieve their aim of radiation exposure at levels that would not increase their long-term risk of disease.

2. The plaintiff was free to move away and attend a different school, which would achieve their desired aim. The plaintiff had expressed negative views about this individual remedy, emphasising the educational environment as a whole, including their classmates. However, the Court held that the plaintiff’s individual right to protect themselves from radiation did not extend to forcing all of the students at that school to be moved to a new school outside the area, as the case was an assertion of individual rights based on the desires of individual plaintiffs. The Court also cited the fact that the plaintiff had a father who is working elsewhere in Japan, but chose to remain in the same school to be together with their friends, as a reason to deny the requested relief.

3. While the radiation levels in the school exposed the students there to an increased risk of disease in the long-term, they were not so high as to pose an immediate threat to the students’ health. Therefore, the necessary elements of an immediate danger or extreme loss were not met, and it could not be said that it is immediately an injustice to continue education at the school.

Accordingly, the Court held that the demand for injunctive relief failed to meet the evidentiary requirements to be granted.

Excerpts citing CRC and other relevant human rights instruments:
as in full-text Japanese decision:
〔エ〕　児童の権利に関する条約３条１項は、「児童に関するすべての措置をとるに当たっては、公的若しくは私的な社会福祉施設、裁判所、行政当局又は立法機関のいずれによって行われるものであっても、児童の最善の利益が主として考慮されるものとする。」と規定している。

〔オ〕　上記の児童生徒の権利を全うするため、国及び地方公共団体は、児童生徒の生命・身体・健康を守るために必要な措置をとる安全配慮義務を負う。

すなわち、福島第一原発から大量の放射性物質が身近に放出され続けている福島県内において、国、福島県及びその市町村は、小中学校、保育園及び幼稚園に通う児童生徒が放射線障害によるがん・白血病の発症で生命・身体・健康を損なわれることのないように、危険区域において教育活動を行わない措置を積極的にとる安全配慮義務がある。

CRIN English translation:
(excerpt from “Plaintiff’s Claims”)

Article 3(1) of the Convention on the Rights of the Child states that “the principal consideration shall be the best interests of the child whenever any public or private social welfare facility, court, administrative organ or legislative body takes action in any and all measures regarding children.”

To give effect to the foregoing rights of students who are children, the national and regional public bodies have a duty to consider safety and to take measures necessary to protect the lives, bodies and health of students who are children. In other words, the nation, Fukushima prefecture and its cities, towns and villages have a duty to consider the safety and to proactively take measures to not conduct educational activities in dangerous areas so that the lives, bodies and health of the children who are students in elementary and middle school, nursery school and pre-school are not harmed by the onset of cancer and leukemia from radiation injuries within Fukushima prefecture, where massive amounts of radioactive materials continue to be emitted from the closeby Fukushima Daiichi Nuclear Power Plant.

Follow Up:
The groups supporting this court case have posted information about their case on the internet, and attracted media and academic attention, including from Noam Chomsky who has called for the decision to be reversed. They are working on an English translation of the judgment, but it is not yet available as at the time of writing. Additional information is available on their blog in English at: http://fukushima-evacuation-e.blogspot.jp/.

CRIN Comments:
CRIN believes this decision is not consistent with the CRC. Article 3 provides that: the best interests of the child shall be a primary consideration in all actions concerning children; the State shall take all appropriate measures to ensure the child such protection and care as is necessary for their well-being; and the institutions, services and facilities responsible for the care or protection of children shall conform with health and safety standards. Moreover, children have the right to the enjoyment of the highest attainable standard of health (Article 24) and the right to education (Article 28). In CRIN’s view, the State’s failure to take all appropriate measures to protect the children from exposure to dangerous radiation levels, and to ensure that they are educated in school facilities that do not pose long-term risks to their health and safety, amounts to a violation of Articles 3, 24 and 28.

Citation:
2012 (Ra) No. 12, Sendai High Court.

Citation for original case: 2011 (Yo) No. 29, Fukushima District Court, Koriyama Branch

Link to Full Judgment:
http://1am.sakura.ne.jp/Nuclear/130424Highcourt-decision-open.pdf

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

0