CYIL vol. 11 (2020)

CYIL 11 (2020) WHITHER THE FUTURE OF INTERNATIONAL NUCLEAR LAW? … and ambitious.” 52 As a delicate quid pro quo , the member states of the IAEA were asked by the General Conference to notify support of the IAEA”s efforts to enhance the safety and security of radioactive sources and to comply with the requirements of this “Code”. 53 The Director General is then responsible for publishing a list of states that have agreed to make this “political commitment”. At the same time, perhaps worried by the boldness of this approach, the General Conference felt it necessary to specify that this procedure would remain “exceptional”, with no legal force and could not constitute a precedent for other non- binding instruments. It is a matter of fact that it remained unique to date. Lastly, the case of the “Code of Conduct on the Safety of Research Reactors” is mentioned. While the problem of nuclear safety was addressed by the Convention on Nuclear Safety, this multilateral instrument addressed only the safety regime for civil nuclear power plants. 54 However, the necessity to establish a similar universal regime of nuclear safety vis-á-vis research reactors was identified in the course of the 1990s. In this regard, two options were presented to react to this necessity by the instruments of hard law: Firstly, proposals were made to adopt a special Protocol to the already existing Convention on Nuclear Safety. Secondly, there were proposals to adopt a new multilateral instrument under the auspices of the IAEA to exclusively govern the problems of nuclear safety of research reactors. 55 However, neither of this proposals gained necessary support among the concerned States. Therefore, the “Code of Conduct on the Safety of Research Reactors”, was adopted 56 as a source of soft law under the auspices of the IAEA. In principle, the Code enlarges the safety standards, as provided by the Convention on Nuclear Safety, as well as to the operation of research reactors. The efforts to reconcile these divergent interests by the means of the soft law remain the subject of contradictory evaluations by legal scholarship. Katia Boustany was critical towards the unclear nature of obligations arising from these types of instruments, which in her opinion “ raise the question of what such a tool could add to the normative setting .” 57 In this regard, she considered the adoption of non-binding instruments in peaceful use of nuclear law to represent a kind of “ legal evasion .” 58 However, other authors were less sceptical in evaluating the impact of soft law: “ On the one hand, it is true that a code is not technically legally binding and the rules are not rules of law; but on the other hand, it cannot be denied that such rules have practical or legal effects – a code can still have a significant impact on state action. Although the norms are not adopted as law, and are of a non-binding form, they frequently are intended to alter the behaviour of their targets .” 59 52 Reyners (fn 46) 180. 53 Pursuant to the Operative Paragraph (4) of the resolution GC(47)/RES/7.B., the General Conference urged “each State to write to the Director General that it fully supports and endorses the IAEA’s efforts to enhance the safety and security of radioactive sources, is working toward following the guidance contained in the IAEA Code of Conduct on the Safety and Security of Radioactive Sources, and encourages other countries to do the same.” 54 Art. 2 Par. (i) of the Convention on Nuclear Safety. 55 Reyners (fn 46) 181. 56 In contrast to the two previous Codes, the Code of Conduct on the Safety of Research Reactors wasn’t adopted by the General Conference of the IAEA, but by the Board of Governors of this international organization. The Code was adopted on 8 th March 2004 (GOV/OR.1088, Record of the 1088th Meeting of the Board of Governors). 57 Boustany (fn 46) 7. 58 BOUSTANY, Katia “The Development of Nuclear Law-Making or the Art of Legal Evasion” (1998) 61 Nuclear Law Bulletin 39. 59 Wetherall (fn 46) 75.

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