International Nuclear Energy Law and Nuclear Safety
Uluslararası Nükleer Enerji Hukuku ve Nükleer Güvenlik
Emrah AKYÜZ
Nuclear energy is the third most common energy source after fossil fuels and renewable energy worldwide. Nuclear energy provides about 10% of the world’s electricity currently. However, there has been a growing discussion over nuclear energy because of its risks and benefits. Supporters argue that nuclear energy does not release direct greenhouse gas emissions which is considered a solution to global warming. Opponents claim that nuclear energy pose risks to the environment and public health due to the potential nuclear accident events. There are hard and soft nuclear energy laws that regulate nuclear safety at the international level. However, the latest nuclear accident, The Fukushima nuclear accident, shows that international nuclear law could be not an effective tool to achieve nuclear safety all over the world. For this reason, the role of international nuclear law on nuclear safety stays questionable. The main purpose of this paper is to argue the weaknesses and strengths of international nuclear energy regulations to achieve nuclear safety and regulate nuclear accident-related risks to the environment and public health.
Nuclear Energy, Nuclear Law, Nuclear Safety, Nuclear Power Plants.
Nükleer enerji, dünyada fosil yakıtlardan ve yenilenebilir enerji kaynaklarından sonra en yaygın üçüncü enerji kaynağıdır. Nükleer enerji, şu anda dünyada tüketilen elektriğinin yaklaşık %10’unu karşılamaktadır. Fakat nükleer enerji sahip olduğu risklerden ve faydalardan dolayı önemli bir tartışma konusu olmaya devam etmektedir. Nükleer enerjiyi destekleyen gruplar, nükleer enerjinin doğrudan sera gazı emisyonu salınımına neden olmadığı için küresel ısınmaya bir çözüm aracı olabileceğini savunmaktadır. Nükleer enerjiye muhalif gruplar ise, nükleer enerjinin olası kaza durumunda çevre ve halk sağlığı için risk oluşturduğunu iddia etmektedir. Uluslararası düzeyde nükleer enerji kullanımını düzenleyen nükleer enerji hukuku bulunmaktadır. Ancak, en son meydana gelen nükleer kaza olan Fukuşima Nükleer Santral kazası, uluslararası nükleer enerji hukukun tüm dünyada nükleer güvenliği sağlamada etkili bir araç olamayabileceği görüşünün daha fazla destek bulmasına neden olmuştur. Bu nedenle, uluslararası nükleer enerji hukukun nükleer güvenlik konusundaki rolü tartışmalıdır. Bu makalenin temel amacı, uluslararası nükleer enerji hukukunun nükleer güvenliği sağlamada ve nükleer kazaların çevre ve halk sağlığı üzerindeki risklerini önlemede/düzenlemede zayıf ve güçlü yönlerini tespit etmektir.
Nükleer Enerji, Nükleer Hukuk, Nükleer Güvenlik, Nükleer Santraller.
I. Introduction
Nuclear events do not happen as often as other natural and man-made accidents. As the world has witnessed only 16 nuclear accidents since the construction of the first nuclear station in 1954, nuclear accidents can be considered extreme events. However, unlike other man-made or natural accidents, they - depending on the resultant level of radioactive contamination - can have serious, long-lasting impact on both the environment and human beings. The two worst nuclear accidents, Chernobyl in 1986 and Fukushima in 2011, have affected thousands, or possibly even millions, of people’s living conditions, the environment, and the non-human [natural] world significantly.
Additionally, the impacts of nuclear accidents and incidents are not limited to national boundaries because they may well affect other countries and communities all over the world. As nuclear accidents can affect both the environment and people on an international scale, the key question here becomes one of what the international legal instruments regulating nuclear accidents and nuclear safety actually are. The literature shows that there are two vehicles that can be applied to matters pertaining to nuclear accidents and nuclear safety that reach an international scale, which include international nuclear law and an international nuclear liability regime. However, the latest nuclear accident, The Fukushima nuclear accident, raises the question of to what extend international nuclear energy law an effective way to achieve nuclear safety is.
The main purpose of this paper is to argue what weaknesses and strengths international nuclear energy law has in terms of achieving nuclear safety and to regulating risks associated with the nuclear accidents to mainly the environment and public health. This paper consists of two main sections. It first discusses the risks associated with nuclear energy in the light of risk society theory. Then it argues the weakness and strengths of international nuclear energy law including the Convention on Nuclear Safety, the Convention on Early Notification of a Nuclear Accident and the Case of Nuclear Accident or Radiological Emergency to achieve nuclear safety worldwide. Lastly, it discusses the weaknesses and strengths of the international nuclear liability regime to manage the risks of nuclear accidents to the environment and public health. By doing so, this paper aims to determine the weaknesses and strengths of international nuclear regulations to achieve environmental safety.
II. Nuclear Energy and Risk Society
Nuclear energy is one of the most important component of world electricity supply nowadays because it is world’s second largest source of energy which provides about 10% of the world’s electricity production recently.1 30 countries worldwide have about 440 operable civil nuclear power reactors currently. Additionally, approximately 50 nuclear power plants are under construction worldwide.2 However, nuclear energy remains one of the most controversial energy sources in the world due to its risks to the environment and public health as evidenced in Chernobyl and Fukushima.3,4,5
The nuclear power debate is still controversy. There has been a common social and academic debate over the construction, deployment and use of nuclear power plants to generate electricity from nuclear fuel for civilian purposes.6 Furthermore, there has been increased public concern over the safety and environmental consequences of nuclear power plants (NPPs), and this is shared by many nuclear energy-providing countries. Recent nuclear accidents have made energy security the principal objective of nuclear energy policy in many nations. The Fukushima nuclear accident in 2011, in particular, reignited the international debate over the use of nuclear energy.7,8 In other words, the public and political discussion over the acceptability of NPPs increased at the international level after the Fukushima event in 2011.
The Fukushima nuclear accident has also brought Beck’s risk society to the fore in academic debates.9 For this reason, Japan can be considered a part of the ‘World Risk Society’ as a consequence of the Fukushima nuclear disaster in 2011. The World Risk Society thesis is not new. It was developed by the well-known German sociologist, Ulrich Beck, in the 1980s. After the Chernobyl nuclear accident in 1986, Beck published the original German text, Risikogesellschaft, which was published in English as Risk Society: Towards a New Modernity in 1992.10 In this book, Beck looks at the relationship between modernity and hazards, and claims that an advanced stage of modernity, called the ‘risk society’, has originated through economic and technological progress and scientific achievements and, of course, their associated risks.11 The idea that today’s society seems to be preoccupied with the notion of the risk is shared by many scholars.12
Beck claims that the risk society emerged around the early 1970s as a result of the transformation from an “industrialˮ to a “post-industrialˮ society, in which people face a set of global risks that society itself has engendered through its scientific and technological activities.13 However, it does not seem reasonable to generalize that society evolved from an industrial to a post-industrial state in during the 1960s and 1970s; whilst this might be a reasonable description of European countries or the United States, Asian and African countries have undergone this process at different times from. Van Voorst14 highlights this issue, and criticises Beck’s theory regarding risk society as being too Euro-centric. Thus, it does not seem wrong to say that Beck’s thesis is insufficient to fully understand risk experiences in non-Western or developing regions.
What makes modern society different from pre-industrial societies is technological change. Developing technology inherently leads to new kinds of risk that did not previously exist.15 According to Beck’s theory of modernity, prior to the modern era, the main risks one faced came from natural catastrophes such as earthquake, tsunami, flood, etc. Beck describes these risks as dangers that have been known since the early history of humankind, but, clearly, not as ones arising from technological activities, particularly chemical, nuclear and information technologies, such as genetic modification; these latter risks are all man-made, and only seen in modern society.16 Indeed, nuclear energy, for example, did not exist prior to the modern era. Technological change in the modern society such as development of the nuclear power plants crates new risks like nuclear waste and radioactive contamination. This may be, however, criticised for two main reasons: the first is that limiting risks with technology seems a narrow perspective, as some emerging and contemporary risks stem from different sources, such as global terrorism; secondly, it can be argued that technological developments help to reduce risks, or protect us from potential dangers, in our daily lives in many ways. For example, a poorly-constructed building can be very easily destroyed by the seismic activity of an earthquake. In contrast, a ‘sophisticated’ building, such as a skyscraper, is designed to be flexible enough for to absorb and dampen the effects of earthquakes; this clearly requires high science and technology. Therefore, it seems reasonable to say that technology may serve to reduce potential risks.
To sum up, nuclear energy poses risks to the modern society in today’s world. It is a fact that there is no zero risk on the earth because risk cannot be prevented. However, risks can be mitigated through effective legal safety regulations. For this reason, there is a need to provide safety regulations which can mitigate risks associated with the nuclear energy all over the world. Then, the question becomes: “to what extend international nuclear law is enough to mitigate risks associated with the nuclear energy to the environment and public health?”. The following section discusses the weaknesses and strengths of the international nuclear law to manage the risks of nuclear accidents.
III. International Nuclear Energy Law
Nuclear energy law (NEL) is nuclear energy legislation related to the peaceful use of nuclear science and technology.17 It is a paradigmatic example of multipolar law, with national, regional, and international law governing this field.18,19 NEL addresses, in the main, issues of liability and compensation for nuclear damage, international trade in nuclear materials and equipment, and also serves as a centre for nuclear law information and education.20,21 NEL is not, however, considered in only its technical sense, meaning this law also seeks to promote the development of nuclear science and technology. It also focuses on establishing legal mechanisms to both prevent and mitigate the risks inherent to the use of nuclear energy.22 It seeks to protect individuals, property and the environment from potential risks or harm from NPPs by regulating safety standards and setting international benchmarks to which states should subscribe. The common interest of NEL, therefore, is to achieve higher levels of safety for all countries with NPPs.23
There are several hard and soft laws that regulate NPPs at the international level.24 One of the most common of these is the International Convention on Nuclear Safety adopted by International Atomic Energy Agency in Vienna in 1994.25 It is a binding international standard on the siting, construction and operation of land-based nuclear facilities.26 It imposes a set of obligations on its 78 state parties (including Japan) to implement certain safety rules at all civil facilities related to use of civilian nuclear power plants.27 Principle 4 of the Convention, for example, states that: “Each Contracting Party shall take, within the framework of its national law, the legislative, regulatory and administrative measures and other steps necessary for implementing its obligations under this Convention”.28 These include design and construction; issues of site selection; operation and safety verification; radiation protection; and, lastly, emergency management and preparedness.29 State parties are obligated to adopt the Convention’s standards within their national regulations.30 That is, regulating safety is a national responsibility rather than international one.
The International Convention on Nuclear Safety is an effective way to influence the state parties to achieve related safety standards that reflect an international consensus on what constitutes a high level of safety for people and the environment. In other words, the International Convention on Nuclear Safety can be considered an “incentive instrument” for state parties to fulfil essential safety rules at the domestic level in order to minimise the risk associated with the nuclear accidents to the environment and public health.31 The role of the Convention, therefore, is to prevent potential nuclear accidents, rather than regulating their consequences.
The Convention, however, is not without controversy. Montjoie,32 for example, takes an opposing view to the above, finding the convention to be vague and non-binding in its obligations, which has led to it being referred to as only an “encouraging” convention. Indeed, it can be said that the character of most of these obligations in the International Convention on Nuclear Safety is very general and unenforceable because the Convention does not establish detailed proposals as to how state parties can maintain a high level of nuclear safety worldwide, or indeed how these standards can be properly applied in practice. It merely declares basic principles and emphasises the responsibility of states towards nuclear security. For example, Article 16 states that: “each Contracting Party shall take the appropriate steps to ensure that there are on-site and off-site emergency plans that are routinely tested for nuclear installations and cover the activities to be carried out in the event of an emergency.”33 The question as to what actually constitutes appropriate steps remains undefined. From this perspective, the Convention does indeed seem vague. What is neglected in this interpretation, however, is the fact that the types of reactor technology used by 30 different states varies from one country to another.34,35 It is likely impossible to establish specific standards that can be applied to NPPs across all these countries because each country has different industrial, regulatory and legal systems, and even have widely different approaches to nuclear power; in other words, nuclear safety standard is dependent on individual countries. Japan, for example, is more vulnerable to earthquakes and tsunamis than other countries with NPPs, requiring the need for Japan - as contrasted to, for instance, the United Kingdom - to develop more specific safety rules against such potential natural events.
The overriding problem, however, is the lack of effective any enforcement mechanism. The only responsibility of the contracting parties is to submit a report presenting the measures taken to implement the obligations of the Convention in review meetings every three years.36 The reports are only discussed with other state parties, after which any progress achieved and any existent difficulties are discussed.37 In other words, the Convention’s supervisory system is not backed up with provisions for non-compliance. Due to this lack of any effective enforcement mechanism, the Convention can be criticised as being inadequate to ensure nuclear safety, as the Fukushima nuclear accident amply demonstrates. This may be, arguably, interpreted in a way that the Convention implies that responsibility for nuclear safety is a domestic, rather than international, matter, which means that nuclear safety ultimately falls under the exclusive responsibility of the state,38 as the Convention does not interfere in the competence of national regulatory bodies. However, nuclear accidents are an international, rather than domestic, issue as they may have transboundary effects.39 Chernobyl, for example, is located in the Ukraine but it also has affected other countries including in Europe.40,41 From this perspective, enforcement mechanism at international level seems essential to control safety standards of Countries for NPPs.
Another international treaty that regulates nuclear energy is the Convention on Early Notification of a Nuclear Accident, which was adopted by International Atomic Energy Agency (IAEA).42,43 This Convention requires all state parties to notify all countries potentially affected by the accident with any information relevant to minimising any consequences arising from an accident.44,45 This includes the location of the accident; time of occurrence; the cause of the accident and its foreseeable development; relevant meteorological data; related data necessary to minimize the risk and the damage from radioactive release; and the composition, quantity, and effective height of the radioactive release.46 The importance of promptly publicising any information concerning nuclear accidents to minimise transboundary radiological consequences because it enables countries to evaluate and make their own assessment of the likely safety impact on their own territory in a timely and adequate manner. The main weakness of the Convention, however, is that it does not establish proper standards as to how affected countries should share relevant information with their own citizens, despite the right of access to information being accepted as a key feature of modern environmental law such as the Aarhus Convention.47 Principle 10 of the 1992 Rio declaration, for example, states that “... each individual shall have appropriate access to information concerning the environment...ˮ48 It seems that the Convention is not in convergent with environmental law. It would be more effective to oblige state parties to share related information with their own citizens, as citizens are most likely to be at the centre of any such incident. Pelzer49 raises this same issue, and further adds that transparency, which requires public access to related information, is essential to minimise or mitigate the risks and increase public support. Therefore, like other NEL documents, the issue of nuclear accidents is considered to be a state level problem rather than being at the public level, which means the civilian aspect of NPPs is neglected.
The first legally binding document regulating emergency preparedness and response is the Convention on Assistance in the case of Nuclear Accident or Radiological Emergency, which came into force in 1987.50 It was signed by 70 state parties.51 This Convention facilitates prompt international assistance to states in which an accident has occurred.52 It can be applied to only nuclear accidents or incidents. Its aim is to reinforce international co-operation in the safe development and use of nuclear energy.53 A basic understanding of the Assistance Convention is one of encouraging countries to exchange their expertise, equipment, materials and medical resources in the wake of a nuclear accident.54 Although the Assistance Convention does not litigate to prevent accidents, assistance can reinforce domestic responses to emergency situations in a timely and financially adequate manner, which, in turn, may minimise the effect of the accident on the environment and public.
To summarise, international NEL does not only prescribe certain procedures be performed by installation given state to achieve nuclear safety but also partly regulates the process of nuclear accidents. This obliges countries to ensure nuclear security, which is one of the main concerns of countries with NPPs. It may be helpful in the prevention and mitigation of nuclear incidents that raise human rights issues. Additionally, in an accident scenario, it forces states parties to share related information and provide any required assistance. This is particularly important in order to cope with nuclear accidents in a timely and effective manner, to mitigate the effects of accidents, to minimise human casualties/fatalities and property damage, and to safeguard both the safety of the populace and national security. International nuclear law framework is, however, problematic for two reasons. First, it remains weak because it does not establish a comprehensive regulatory regime or enforcement mechanism. This weakness may represent a genuine deficiency in ensuring nuclear safety. Secondly, it ignores or neglects the relationship between the populace and NPPs. Nuclear energy, particularly nuclear accidents, poses a clear risk to human health. NEL, however, does not establish any standard regarding the principles of transparency or procedural aspect of NPPs, which imply an “obligation to inform the public” or the “right of the public to information” as to the use and risks of nuclear energy, “the participation of all concerned citizen in the formulation of nuclear regulations”, or access to justice. NEL, therefore, may help in the prevention of, or minimisation of, the effects of nuclear accidents through the maintenance of high standards of nuclear energy safety, but remains weak in its ability to regulate nuclear accidents due to the lack of a procedural approach to NPPs.
