International Nuclear Law: an introduction.

• Author: Nanda, Ved P.

1. INTRODUCTION

   The papers in this Symposium were prepared for an important conference on "Updating International Nuclear Law" held in Salzburg, Austria in October 2005. The Austrians living in Salzburg and Upper Austria have long been distressed by the risks created by the Temelin Nuclear Power Plant, situated in the Czech Republic some 50 kilometers (31 miles) north of the Austrian-Czech border. That plant was started by the Soviet Union, but had been only partially completed when the Cold War ended. Under U.S. pressure, the Czech government agreed to contract with Westinghouse to complete the plant, creating a hybrid plant utilizing some Soviet and some Westinghouse technology. It is thus a unique plant, creating unknown risks.

   The Austrians have felt particularly beleaguered by their new nuclear neighbor, because they had previously abandoned their own nuclear industry. In 1978, the Austrian population voted in a national referendum that its recently-completed nuclear power plant at Zwentendorf should not go into operation, and in that same year its legislature adopted the Atomic Energy Prohibition Act. Austrians worked closely with anti-nuclear Germans in 1989 to prevent a nuclear waste reprocessing plant from opening in Wackersdorf in Germany's southern region of Bavaria. In 1992, Salzburg hosted the World Uranium Hearing to document the health, environmental, social, and peace-destabilizing effects of nuclear energy, and the 2005 conference on Updating International Nuclear Law was a continuation of that effort. The Austrian people have pursued legal challenges to the Temelin plant in Austrian, Czech, and other European courts, and, although they have won procedural victories, these efforts have been unable to stop the completion and operation of the Temelin plant. Frustrated that the law seemed unresponsive to the genuine fears created by having to live next to an unproved nuclear plant, the Salzburg activists suggested convening international environmental law experts to address the inadequacies in the international law principles governing nuclear activities.

   The papers in this Symposium have emerged from that effort, and they provide a clear explanation of the gaps in the treaty law and customary international law principles governing nuclear power. Earlier versions of these papers were published in a volume entitled UPDATING INTERNATIONAL NUCLEAR LAW, edited by Heinz Stockinger, Jon M. Van Dyke, Michael Geistlinger, Sarah K. Fussek, and Peter Machart. That volume also contains numerous other essays examining the scientific risks created by nuclear power and explaining the avenues that the residents of Upper Austria have pursued in their efforts to block the operation of the Temelin plant. Selected for this Symposium are the central legal papers, which explain the inadequacies of the present legal regime and offer suggestions for new principles that could provide protections for the range of transboundary injuries that could occur.

2. SYMPOSIUM THEMES

   In this symposium the authors address four general themes: 1) international environmental norms applicable to nuclear activities; 2) liability and compensation for harm caused by nuclear activities, with special reference to the nuclear liability conventions; 3) human rights and the environment and the peaceful use of nuclear energy; and 4) specific case studies--the Austrian law on third-party liability for nuclear damage, the regulatory and institutional framework for nuclear activities in the Slovak Republic, and the claims of the Enewetak People related to US nuclear testing in the Marshall Islands between 1946 and 1958.

   Professors Jon Van Dyke and Ved Nanda and the late Professor Alexandre Kiss address the first topic. Van Dyke provides a comprehensive survey of international environmental norms related to transboundary environmental disputes in "Liability and Compensation for Harm Caused by Nuclear Activities." He begins his review with the Trail Smelter Arbitration, which enunciated the no harm rule--sic utere tuo ut alienum non laedas--and the polluter pays principle, and then discusses the principles of international responsibility found in the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts and earlier in the International Court of Justice (ICJ) decision in the 1949 Corfu Channel Case. Next, he notes Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio Declaration, both of which reaffirmed the Trail Smelter holding, and have developed, in the words of Professor Philippe Sands, into "the cornerstone of international environmental law." In the language of the Stockholm Declaration, this principle reads:

   States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Van Dyke then discusses the 1982 UN Law of the Sea Convention and the International Court of Justice's 1996 Advisory Opinion on "Legality of the Threat or Use of Nuclear Weapons," which embodied the no-harm rule. As to the polluter pays principle, he cites several international decisions that have reaffirmed the rule.

   Next, Van Dyke studies several other relevant international law principles applicable to transboundary environmental conflicts--the precautionary principle, the duty to cooperate, and principles of equity. Following this, he examines, in a historical context, the strict liability regime for activities that cause harm to other countries. He starts with Rylands v. Fletcher, the 1868 House of Lords case that enunciated the strict liability rule for hazardous activities. He then refers to the International Law Commission's work on the subject and discusses several cases pertinent to nuclear activities, including the 1986 Chernobyl accident and the 1978 Cosmos 954 incident. This analysis is followed by a thorough discussion of the existing international nuclear liability treaty regime and its inadequacies.

   Finally, Van Dyke studies the issue of damages for anticipated health hazards and fear of environmental harm from nuclear activities. Possible bases for damage claims include emotional distress, claims for enhanced risk of disease, and medical monitoring claims. He concludes by emphasizing the need for further work to develop a comprehensive and authoritative regime to govern harm from nuclear activities. In his words,

   Although the underlying customary international law principles (the no-harm principle and the polluter-pays principle) are clear, the actual treaties that have been drafted are inadequate and they have not been widely ratified.... The failure to develop a proper regime that would ensure full restitution and compensation for harm resulting from nuclear facilities constitutes a continuing subsidy to the nuclear industry and distorts decisions regarding energy choices. The effort to update international nuclear law must, therefore, continue until a proper liability and compensation regime is established. In his paper, "International Environmental Norms Applicable to Nuclear Activities, With Particular Focus on Decisions of International Tribunals and International Settlements," Professor Ved Nanda reviews the pertinent treaties and customary international law principles, as well as newly emerging sources of international law, that have made valuable contributions to international...