The human right to environment and the peaceful use of nuclear energy.

• Author: Rodriguez-Rivera, Luis E.
• Position: Updating International Nuclear Law

1. INTRODUCTION: THE 1959 INTER-AMERICAN SYMPOSIUM ON ATOMIC ENERGY AND LAW AND THE PUERTO RICO NUCLEAR REACTOR EXPERIENCE

   Forty-six years ago, the University of Puerto Rico School of Law hosted the Interamerican Symposium on Atomic Energy and Law, recognized as the first meeting in the world focusing on the legal and administrative problems associated with peaceful atomic energy programs. (1) Given the similarity in the subjects covered in both the 1959 Puerto Rico Symposium and the present conference in Salzburg, Austria, I will briefly discuss some of the remarks made during the 1959 symposium.

   The first symposium speaker was Dr. Shields Warren, Professor of Pathology at the Harvard Medical School. Dr. Warren began his presentation stating that "[a]lthough atomic energy, misused, can be a menace to this and future generations, although it deals with some of the most deadly poisons known to man, the industry is one of the safest in the world, and with due attention can be kept safe." (2) This conclusion, however, seemed dramatically premature in light of the scientific uncertainties posed by him and other scientists at the Puerto Rico Symposium, and given how young the atomic energy industry was at the time. As exemplified later in his presentation, Dr. Warren acknowledged that "[i]nternal absorption of radioisotopes, such as might occur through an accident, through inadequate waste disposal, or through heavy fallout is possible. Usually the hazard from external radiation from these sources is greater than that from internal, even under conditions of accident." (3) Thus, it was truly impossible to forecast accurately the risks associated with events whose effects had not yet been adequately measured, studied, or fully understood at the time.

   A more honest assessment regarding the risks related to the atomic energy industry was provided by Dr. Forest Western, Deputy Director of the United States Atomic Energy Commission's Office of Health and Safety. Dr. Western succinctly pointed out that,

   The only known method of avoiding all risks associated with exposure to radiation is to avoid the exposure. However, there are many things that we wish to do which cannot be done without some exposure to radiation. In some cases, the exposure to humans can be made as small as we wish, if we are willing to pay the cost in materials and effort. Our problem, then, is not how much exposure to radiation is safe, but how much are we willing to accept. (4) Of course, the answer as to how much radiation exposure we are willing to accept depends on who controls the decision-making process, what criteria is taken into account, and whose interests deserve protection.

   The Legal Advisor to the Mexican National Nuclear Energy Commission, Francisco Torres Garcia, summarized the scientifically accepted conclusions of the time as:

   1) Excessive absorption of ionizing radiation by a human being is dangerous for him and for his descendents.

   2) The damage to him can be immediately obvious or delayed.

   3) The nature of the damage and its extent are unforeseeable, which further aggravates the problem. (5) He also quoted the following statement from a partial report of the period prepared by the Committee on Genetic Effects of Radiation, published by the National Academy of Sciences in the United States:

   We can not pretend to eliminate all the risks, for that would be impossible; we can only try to establish some balance between the risks on the one hand, and the various benefits on the other hand. The troublesome and confusing matter is that humanity has to seek ways to reach a balanced judgment without knowing exactly what the risks are. The scientists can not determine exactly to what biological risks we expose ourselves with respect to the various levels and types of radiation. (6) Considering the high degree of scientific uncertainty surrounding the issue of radiation exposure, as well as the catastrophic nature of the potential damages, it is difficult to conceive of a moral framework, much less an international or regional legal framework, which would provide the foundation for the expansion of the atomic energy industry, albeit for peaceful use. In reading the proceedings of the 1959 Puerto Rico Symposium, one is inevitably confronted with many of the participants' utilitarian views while evaluating the issues at hand. Mr. Torres Garcia, for instance, boldly declared as follows:

   Just as air law was born in its time, it has fallen to the contemporary lawyers to witness the birth of a new legal branch which could be christened 'nuclear law.' From the time a professional jurist begins to approach the problems which this new source of energy presents, he is immediately forced to revise all his doctrinal and normative knowledge in law, as well as all the knowledge in the various fields which he has studied during his university career. Fortunately, the legal edifice in civilized countries rests on such solid pillars, and it has originated such a high intellectual and spiritual level that, no matter how difficult and novel is the attempt to adapt so old principles to so new problems, it will always be possible to reach satisfactory results, if the scholar and the professional lawyer in general are consciencious [sic] enough to accept the task of creating this new and special legal structure, so that the system of norms and principles of equity and justice, necessary for this new source of energy to yield its benefits and cease to be a danger, would be developed in the fields of private, public and, above all, international law. (7) Some dissenting voices were present at the 1959 Puerto Rico Symposium, such as that of Dr. Carlos Alberto Dunshee De Abraches, Legal Advisor to the Brazilian Nuclear Energy Commission, whose main concern at the time was the third-party effects of the atomic energy industry's waste disposal practices:

   Despite all these precautions, it is established that they are not sufficient to eliminate totally and permanently the harmful characteristics of the dangerous waste. A certain portion resists all the processing and has contributed to the increase of the existing natural radioactivity in the air, the water, and the soil. One aspect of this problem has begun to concern Brazilian scientists because of the increased risk which it represents for our country. It is known now that solid radioactive waste, proceeding from United States installations located close to the Atlantic coast, have been dumped into the sea in a region above a deep trough in the ocean bottom. England has done the same thing.... So it is most important that American scientists, administrators and lawyers seriously and urgently dedicate themselves to these problems, especially those which may affect populations, as the mentioned fact situation indicated. (8) However, the dissenting voices were drowned out by other scientists and lawyers eager to articulate a legal system which would essentially transfer some, if not most, of the inherent risks associated with the peaceful atomic energy programs to other parties, including states, owners, operators, insurance companies, and individuals around the globe.

   Dr. Enrique Zaldivar, Professor of Law at the Universities of Buenos Aires and La Plata and Legal Advisor to the Argentine National Atomic Energy Commission, emphasized the international character of the nascent nuclear energy law given that nuclear damages easily become extraterritorial. (9) He posited that the following questions were fundamental to the development of a legal system for atomic or nuclear energy--the first five as primary questions, the next five as secondary ones, and the last five as questions of procedural and economic issues:

   1) Is it necessary to establish special rules of state responsibility for these damages, or can we consider the positive international law as already containing norms to solve the conflicts which can arise in this connection?

   2) Should states be considered liable in all cases for extraterritorial damages caused by nuclear activities carried on within their boundaries?

   3) Or should this liability be limited to activities engaged in on basis of a previous license by the state?

   4) In each of the preceding situations, should the liability of the state be joint with, or subsidiary to, the liability of the owner, operator, etc. of the nuclear instalation which caused the accident?

   5) Should state be internationally liable although the accident has not been caused by fault either on the part of the state, or of the owner, operator, etc. of the nuclear instalation? In other words, can the doctrine of absolute liability, generally applied in other fields of law, be extended to the liability of states?

   1) Should states be considered internationally liable for extraterritorial damages caused by carriage of nuclear materials, for means of transportation with nuclear propulsion, or for disposal of radioactive materials on high seas, although all these acts have taken place outside of their territorial limits?

   2) Which type of damage would the state liability enclose: the immediate ("damnum emergens"), all the losses caused by the tortious act ("lucrum cessans"), cost of measures preventing the damages, costs of investigation, etc.; or only some of these items?

   3) Should there be a limit on the liability of states?

   4) Should these claims be subject to a statute of limitations?

   5) Should there be special rules about joint liability of states for damages caused jointly or cumulatively?

   [C]onvenience or lack of convenience of establishing an obligatory international adjudication and special tribunals which would decide these disputes; if these tribunals are set up, the determination of their powers and jurisdiction; the establishment of a permanent technical-scientific body to determine nuclear damages, their causes, safety measures, procedures; the conclusion of agreements about convertibility of the indemnity...