International environmental norms applicable to nuclear activities, with particular focus on decisions of international tribunals and international settlements.

• Author: Nanda, Ved P.
• Position: Updating International Nuclear Law

1. INTRODUCTION

   Treaties, customary international law, and general principles of law constitute the primary sources of international environmental law as of international law in general, while judicial decisions and scholarly writings comprise "subsidiary means for the determination of rules of law." (1) However, the new sources of international law that emerged during the second half of the twenty-first century also include declarations and resolutions adopted by the United Nations organs and other intergovernmental organizations, as well as principles, guidelines, and recommendations produced by International Financial Organizations (IFOs), other UN bodies such as the International Atomic Energy Agency (2) or intergovernmental organizations such as the Organization for Economic Cooperation and Development (OECD), (3) or multilateral conferences such as the 1972 UN Stockholm Conference on the Human Environment (4) and the 1992 UN Rio Conference on Environment and Development. (5)

   As these new sources come in the form of nonbinding statements, contrasted with binding international law norms established by conventional and customary international law, they are known as "soft law." But with frequent reiteration of these principles, reflection in state practice, invocation before tribunals and adoption by them, and incorporation by IFOs, they create expectations of similar future conduct by states, and consequently acceptance as customary international law. Through this practice and through the codification of these principles in treaties, the "soft law" they embody may harden into binding legal obligations. Hence, these new sources make valuable contributions to international environmental law. Consequently, the discussion in this paper is confined not only to the already accepted principles of international environmental law, but also to those norms that are currently evolving and emerging through this ongoing process.

   All nuclear activities, and not just those confined to nuclear weapons, are cause for serious concern because of their potential threat and harm. The April 1986 Chernobyl accident, (6) the worst industrial disaster ever, has alerted the international community that nuclear power plants pose a grave danger not only to the region in which they are located but to distant lands, as well. In addition to direct casualties of the catastrophe, (7) those affected by it include more than three million victims in Ukraine and Belarus. (8) Chernobyl had taken an $11 billion toll on Ukraine's economy by the year 1999. (9) The Soviet Union spent billions on Chernobyl rehabilitation, (10) and Ukraine has continued to provide compensation to the victims of the disaster. Environmental damage occurred in many European countries as the cloud of radioactive residue spread all over the northern hemisphere. Thus, Chemrnbyl has sharpened our awareness of what severe ecological and health impacts an unintentional release of radiation can have on such a vast geographical area. (11)

   International efforts primarily under the auspices of the IAEA and the OECD have been ongoing to prescribe environmental norms applicable to nuclear activities (12)--obligating countries to meet nuclear safety requirements, establishing guidelines and a legal framework in the form of conventions on early notification of a nuclear accident and assistance in the case of a nuclear accident or radiological emergency, and developing rules on state responsibility and liability conventions. However, Chernobyl provides a glaring example of the inadequacy of the prevailing legal regime regarding liability and compensation for harm caused by nuclear activities. (13)

   After briefly noting in the next part major international environmental norms that are pertinent in the nuclear context, the discussion in subsequent parts will focus on the decisions of international tribunals and international settlements, with a concluding section on recommendations.

2. MAJOR INTERNATIONAL ENVIRONMENTAL NORMS PERTINENT TO NUCLEAR ACTIVITIES

   Although international environmental law is of relatively recent origin, it already has established a core of fundamental legal principles that are pertinent to nuclear activities. (14) The sources of these principles are those mentioned above--treaties incorporating these principles and thus creating binding "hard law," customary international law generally accepted by states, or still emerging "soft law." (15) Some of these principles are considered more substantive, that is, focused on outcomes, as the "no harm" rule, the "polluter-pays" principle, and state responsibility and liability; while others are more procedural, with their focus on means, such as the duty to notify, consult, and negotiate; the principle of effective public participation in decision-making; and the precautionary principle. Still others combine both substantive and procedural aspects, such as "good neighborliness" and the duty to cooperate. Needless to say, however, there is usually no bright line distinguishing substance from procedure.

   While the focus of the discussion in this paper is primarily on the decisions of international tribunals and international settlements, it is worth noting that several conventions developed primarily under the auspices of the IAEA and the OECD have established legal principles pertaining to safety and state responsibility and liability. The goal is to ensure the safety of nuclear activities--encompassing several subsidiary principles of protection, prevention, and precaution--and to address the threat of transboundary radioactive pollution. Further elaboration of these principles is likely to result as tribunals are called upon to resolve disputes where these conventions apply.

   The pertinent conventions establishing or incorporating these principles include the Convention on Nuclear Safety, (16) under which responsibility for nuclear safety rests on the contracting parties, and which obligates them to establish and maintain effective safety measures in nuclear installations against potential radiological hazards. (17) Major conventions on international liability for nuclear damage are the Vienna Convention of 1963, developed by the IAEA, (18) the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy, developed by the OECD, (19) and the subsequent supplementary instruments strengthening the reach of these conventions to include environmental damage and preventive measures and augmenting the liability limits. The main instruments are the 1963 Brussels Supplementary Convention to the Paris Convention, (20) the 1988 Joint Protocol combining the Paris and Vienna Conventions, (21) the 1997 Protocol to the Vienna Convention, (22) the 1997 Supplementary Convention, (23) and the two 2004 Protocols, (24) one amending the Paris Convention and the other the 1963 Brussels Supplementary Convention.

   The principle of strict responsibility applies to nuclear activities and the primary responsibility lies on the operator of the nuclear plant. However, under the instruments mentioned above, states parties are required under their national laws to provide a minimum amount, as well, and the 1997 Supplementary Convention, not yet in force, provides for the creation of a supplementary fund to be created through collective contributions by states parties. Nuclear transportation issues are addressed by the 1971 Brussels Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material. (25) This Convention was developed by the International Maritime Organization (IMO), which also has other conventions applicable to nuclear activities, such as on dumping and radioactive wastes. (26) The Convention holds the operator of a nuclear installation liable for damage, while exonerating a person otherwise liable if the operator is liable for such damage under either the Paris or Vienna convention.

   Among the major weaknesses of the prevailing liability regime are: 1) liability is limited; 2) liability is primarily imposed on the operator, exempting the manufacturer, supplier, or carrier of the material or equipment; 3) the limitation period to bring a claim is very short in most cases of damage caused by nuclear activities, although long-term effects of radiation may not be known for a much longer period; and 4) only a few states are parties to these supplementary instruments.

   Following the Chernobyl tragedy, the IAEA prepared the texts of two more conventions that were adopted within six months of the accident. One convention is on early notification of a nuclear accident (27) and the other is on assistance in the case of a nuclear accident or radiological emergency. (28) Under the Notification Convention, parties are obligated to notify without delay of any nuclear accident and to promptly provide pertinent available information in order to limit the radioactive consequences in other countries. (29) The Assistance Convention creates a framework for cooperation among the States Parties and with IAEA.

   The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (30) also applies among other activities to "[n]uclear power stations and other nuclear reactors including the dismantling or decommissioning of such power stations or reactors ...; [i]nstallations for the reprocessing of irradiated nuclear fuel." It obligates the contracting parties to take the necessary legislative, regulatory, and other measures to achieve its objectives. The Convention's principles applicable to nuclear activities include the public's right to know and hence the state's obligation to inform the public about the use of nuclear energy, and the public's participation in the preparation of nuclear regulations.

   The 1991 Convention on Environmental Impact Assessment in a Transboundary Context (31) obligates States Parties to take appropriate and...