Conventions relating to nuclear safety standards and State responsibility

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The IAEA was established in 1957 by the Statute of the International Atomic Energy Agency.53 Pursuant to article II, its primary objective is 'to accelerate and enlarge the contribution of nuclear energy to peace, health and prosperity throughout the world'. The Agency also has a duty to establish and administer safety standards, but as this is stated in article III.A.6 to be a 'function' rather than an 'objective', it is clearly a secondary role. The prevalent belief at the time of the establishment of the IAEA was that the risks of nuclear power could be managed successfully by national governments. The IAEA has no power to enforce safety standards under the Statute. The standards adopted have been influential as guidelines for States because their preparation reflects technical and expert consensus arising from consultation with governments and specialist bodies, but have no legal significance. The IAEA has only very limited powers to inspect the safety conditions of nuclear installations.54

The minimal powers of the IAEA and other international institutions55 to enforce safety standards led one commentator to state:56

International regulation of the safety of nuclear power, and its potential environmental impact, is amongthe weakest examplesofthe regulation ofmajorultra-hazardous trans-boundary environmental risks. It gives minimal assurance of common standards, offers limited international inspection and oversight, and leaves to governments a largely unfettered discretion to determine their own balance of safety measures and economic interest. Moreover, it relies heavily on voluntary compliance.

The damage caused by the explosion at Chernobyl cast doubts on the adequacy of existing national and international regulation of nuclear facilities. Since then the 'environmental' role of the IAEA has assumed a new dimension. In September 1991 the IAEA convened an International Conference on the Safety of Nuclear Power. As a result of the conference, the Convention on Nuclear Safety was developed and opened for signing in Vienna on 20 September 1994.57 It entered into force on 24 October 1996.

52 See generally, IA Kacem, 'Safety of Nuclear Installations, Spent Nuclear Fuel and Radioactive Waste Management in the European Union: A Legal Analysis' (2004) 13 European Environmental L Rev 109; S R Helton, 'The Legal Problems of Spent Nuclear Fuel Disposal' (2002) 23 Energy L J179.

53 8 UST 1092;TIAS 3873. In force 29 July 1957.

54 See A Boyle, 'Nuclear Energy and International Law: An Environmental Perspective' (1989) 60 British Yearbook oflntL 257, at 265-66; N L Horbach, 'Assistance Programmes of the International Atomic Energy Agency to the CEEC/NIS', in N L Horbach (ed.), Contemporary Developments in Nuclear Energy Law, Kluwer Law International, 1999, at 448ff.

55 Other international institutions concerned with nuclear safety include EURATOM, the OECD Nuclear Energy Agency and the ILO.

56 Boyle, 'Nuclear Energy', at 269.

57 (1994) 33 ILM 1518. See generally Horbach, Contemporary Developments, at 89-132, and the introductory note by P Szasz, 'International Atomic Energy Agency: Convention on Nuclear Safety (1994) 33 ILM 1514.

The Convention reaffirms in paragraph (iii) of its Preamble that responsibility for nuclear safety rests in the State having jurisdiction over a nuclear installation. By article 3, the Convention applies to the safety of'nuclear installations'. 'Nuclear installation' is described in article 2(i) for the purposes of the Convention as 'any land-based civil nuclear power plant. . . including such storage, handling and treatment facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant'. The Convention does not cover the safety of military and non land-based facilities.

Article 4 of the Convention obliges each Party to take, within the framework of its national law, the legislative, regulatory and administrative measures and other steps necessary for implementing its obligations under the Convention. States are obliged by article 7 to establish and maintain a legislative and regulatory framework to govern the safety of nuclear installations; such framework must provide for the establishment of national safety requirements and regulations, a system of compulsory licensing with regard to nuclear installations, a system of inspection and assessment of nuclear installations to ascertain compliance by operators, and the enforcement of applicable regulations and licence terms, including suspension, modification or revocation. Pursuant to article 9, the primary responsibility for the safety of a nuclear installation rests with the holder of the relevant licence, and each State must take steps to ensure the licence-holder meets its responsibility.

By article 8, each Contracting Party must establish or designate a regulatory body to implement the legislative and regulatory framework referred to in article 7, and must provide the body with adequate resources and authority to fulfil its responsibilities. The functions of this body must be separated from any other body or organisation concerned with the promotion or utilisation of nuclear energy.

The Convention addresses the safety of existing nuclear installations. Article 6 provides:

Each Contracting Party shall take the appropriate steps to ensure that the safety of nuclear installations existing at the time the Convention enters into force for that Contracting Party is reviewed as soon as possible. When necessary in the context of this Convention, the Contracting Party shall ensure that all reasonably practicable improvements are made as a matter of urgency to upgrade the safety of the nuclear installation. If such upgrading cannot be achieved, plans should be implemented to shut down the nuclear installation as soon as practicably possible. The timing of the shut-down may take into account the whole energy context and possible alternatives as well as the social, environmental and economic impact.

A number of general and specific safety considerations that must be taken into account in the operation of nuclear installations are set out in the Convention. The Parties are not obliged to ensure compliance with the IAEA standards. Rather, pursuant to paragraph (viii) of the Preamble, the Convention entails a commitment to the 'application of fundamental safety principles for nuclear installations rather than that of detailed safety standards'. Article 5 requires each Party to submit to periodic review a report on the measures it has taken to implement each of the obligations under the Convention. By article 21, this must occur at least once every 3 years. If any Party fails to adopt IAEA safety standards, then arguably it would need to explain how the alternative measures undertaken have achieved adequate safety.

According to one legal commentator, while the Convention does not create a clearly binding regime:

it does establish for the Parties a system of accountability which may gradually impose the necessary substantive international safety standards on the nuclear industry. These standards may gradually come to constitute the basis for international liability should a Party fail to observe the weak substantive provisions of the Convention or its procedural requirements, or even if it should, without adequate reason, resist critical observations as to its procedures made at the review meetings.58

The 1994 Convention has been followed by the Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, adopted on 5 September 199 7.59 The need for this latter Convention had been foreshadowed by the Contracting Parties in the Preamble to the Nuclear Safety Convention.

The Convention contains provisions relating to the safety of spent fuel management (chapter 2), the safety of radioactive waste management (chapter 3), general safety provisions (chapter 4) and the mechanism for implementation (chapter 6). By article 3, the Convention concerns the safety of spent fuel and radioactive waste management when these result from the operation of civilian nuclear reactors or civilian applications. Excluded from the scope of the Convention are waste that only contains naturally occurring radioactive materials, waste that does not originate from the nuclear fuel cycle, and spent fuel and radioactive waste within military or defence programs.

Article 4 of the Convention requires State Parties to take appropriate action to achieve the following objectives:

to ensure that criticality and the removal of residual heat generated during spent fuel management are adequately addressed;

to ensure that the generation of radioactive waste associated with spent fuel management is kept to the minimum practicable;

to take into account interdependencies among the different steps in spent fuel management;

to provide for the effective protection of individuals, society and the environment;

to take into account the chemical, biological and other hazards that may be associated with spent fuel management; and

58 Ibid, at 1516.

59 IAEA Docs GOV/INF/821, GC(41)/INF/12 of 22 September 1997 and GC(41)/INF/12/Corr.1 of 1 October 1997. This Joint Convention is discussed in P Cameron, 'Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management', in Horbach (ed), Contemporary Developments, at 117ff. See also S R Helton, 'The Legal Problems of Spent Nuclear Fuel Disposal' (2002) 23 Energy LJ179.

to aim to avoid actions that may impose reasonably predictable impacts upon future generations greater that those permitted for the current generation, and to aim to avoid imposing undue burdens on future generations.

The compliance system under this Convention is based on peer review. The Parties are required to report on the measures that they have taken to implement the termsofthe Convention. Article 32 requires the Parties to submit national reports to the review meeting about nuclear safety practice and article 33 obliges the Parties to participate in these meetings. The details of the national reports are specified.

As for implementation, by article 19 each Party is required to establish and maintain a legislative and regulatory framework to control the safety of spent fuel and radioactive waste management. This must establish applicable national safety regulations and requirements for radiation safety, must set up a system for licensing spent fuel and radioactive waste management and ensure that such operations are prohibited without a licence. Further, each Party must establish a system for regulatory inspection, documentation and reporting and appropriate institutional control, together with a clear allocation of responsibilities between the appropriate instrumentalities involved in the management of spent fuel and radioactive waste management. Article 20 specifies that the requirements are to be fulfilled by setting up a regulatory body to be entrusted with the implementation of the provisions contained in article 19. Various rules in relation to radiation protection and emergency preparedness are also specified in articles 24 and 25.

Finally, the Convention regulates in article 27 the transboundary movement or shipment of spent fuel or radioactive waste from a State of origin to a State of destination, in accordance with the IAEA Code of Practice on International Transboundary Movement of Radioactive Waste.60 The Convention recognises the sovereign right of Parties to prohibit the movement of radioactive waste into, from or through its territory, and obliges Parties to take steps to ensure that such movement is undertaken in a manner consistent with the provisions of the Convention and other binding international instruments. Various procedural requirements for the shipment of spent fuel or radioactive waste are specified.61

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