CYIL vol. 11 (2020)

CYIL 11 (2020) WHITHER THE FUTURE OF INTERNATIONAL NUCLEAR LAW? … A specific regional framework for nuclear safety was established by the secondary legislation of the European Atomic Energy Community (Euratom). In this regard, a clear tendency to regionalism and to bilateralism can be identified in the discussed field of law. 25 Additionally, a robust structure of unbinding instruments ( soft law, para-droit or les normes sauvages ) 26 has been established that provides commonly accepted practices and technological standards in this field. Consequently, in parallel to the tendency to address certain issues by binding instruments of international public law, there has also been a tendency to deal with other issues through instruments of a non-binding (or semi-binding) nature. This section will address the prospects of future developments in international nuclear law with respect to the tendencies existing in this special field of international public law. Firstly, attention will be paid to the developments in both hard and soft law during recent decades. Secondly, based on the tendencies identified in the long-term period in both hard and soft law, prospects of the future international nuclear law will be outlined. This section aims to argue that future developments of international nuclear law will mainly occur through new regional, or bilateral agreements, or by adopting new instruments of soft law. Further, this section claims that one can more probably await the use of flexible mechanisms in existing international agreements, including the adoption of new agreements in this field. 2.1 “Hard law” With regard to the multilateral instruments that exist under the auspices of the IAEA, two tendencies 27 can be identified that demonstrate a capacity to also last into the next decades: Firstly , the accident in the Japanese Fukushima nuclear power plant (2011) clearly triggered the attention of States towards acceding to the existing instruments of international nuclear law. 28 Taking the two multilateral agreements 29 governing the issues of early notification and mutual assistance into consideration, there have been considerable developments regarding the increase of participation of new Contracting Parties since 2011. It is a fact that 12 new Contracting Parties 30 acceded to the Convention on Early Notification of a Nuclear Accident 25 See also BLUM, Gabriella “Bilateralism, Multilateralism and the Architecture of International Law” (2008) 49 Harvard International Law Journal 323. 26 This is, in particular, the case of the “Codes of Conduct”, “Nuclear Safety Standards” and “Safety Fundamentals”, published by the IAEA. 27 For more detailed analysis on tendencies in international public law and their applications in legal futurism, see KLABBERS, Jan “The Idea(s) of International Law” in MULLER, Sam, ZOURIDIS, Stavros, FRISHMAN, Morly and KISTEMAKER, Laura (eds.) The law of the future and the future of the law (Torkel Opsahl Academic EPublisher 2011) 69. 28 For further details on impact of the accident in the nuclear power plant Fukushima for international nuclear law, see (i) BURNS, Stephen G. “The impact of the major nuclear power plant accidents on the international legal framework for nuclear power” (2018) 101 Nuclear Law Bulletin 7, (ii) KUENY, Laurent and DOURANT- POUDRET, Emma “La gouvernance internationale de la sûreté nucléaire: quelle remise en cause après Fukushima?” in MANOVIL, Rafael (ed), Nuclear Law in Progress. Derecho nuclear en evolución (Legis 2014) 205, (iii) DOURANT-POUDRET, Emma “Towards a new international framework for nuclear safety: Developments from Fukushima to Vienna” (2015) 95 Nuclear Law Bulletin 27, (iv) SEXTON, Kimberly A. “Crisis, criticism, change: Regulatory reform in the wake of nuclear accidents” (2015) 96 Nuclear Law Bulletin 35. 29 The Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. 30 Bahrain (2011), Benin (2019), Botswana (2011), Burkina Faso (2014), Ghana (2016), Lao P.D.R. (2013), Lesotho (2013), Madagascar (2017), Mauritania (2011), Paraguay (2013), Syrian Arab Republic (2018) and Venezuela (2014).

347