CYIL vol. 11 (2020)

JAKUB HANDRLICA CYIL 11 (2020) “ The subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident .” 60 The reality of the mechanism, as established by the “Code of Conduct on the Safety and Security of Radioactive Sources” shows a rather more positive picture. As of March 2020, 140 States have made the notification envisaged in the “Code” to the Director General of the IAEA. It is a fact that this number is higher than number of Contracting Parties to the existing conventions adopted in the area of early notification, mutual assistance and nuclear safety, which underlines the ability of the unbinding instruments to attract the States worldwide. 61 Consequently, despite the weaknesses arising from the unbinding nature, one can identify the tendency to address certain issues by the instruments of soft law as promising also for future developments. Existing experiences underline the ability of these instruments to deal with those situations where the State feels a universal solution desirable on one hand but are not willing to enter binding obligations on the other. 2.3 International nuclear law of the future What will be the future of international nuclear law? One can argue that the tendencies to adhere to existing multilateral instruments and to use of the flexible mechanism will also continue to exist in the next decades. 62 Having said that, this article must also address a more complicated issue of the probability of adoption by new multilateral conventions. A desire for such new multilateral conventions has frequently been identified by academics. In the past, the idea to supersede the existing international regime of nuclear liability of the operators by a new universal regime of liability of the States was several times proposed in the legal scholarship. 63 Other authors argued for a necessity to govern the issues of nuclear medicine by a multilateral agreement. 64 Recently, Abdullah Al Faruque argued 65 that “ the current international legal framework for regulating nuclear safety is inadequate. (…) The legal framework should be further improved so that states are responsible under international law for any failure to exercise due diligence over the siting and operation of nuclear facilities and the transport and disposal of nuclear wastes. Although the current nuclear safety regime has led to a significant improvement in nuclear safety, there remain serious environmental risks, which mandate an improved international nuclear safety regime .” 66 Serious doubts can be expressed towards the substantiality of these proposals. The main prerequisite for adopting any multilateral instrument is that the signatory States share 60 BOYLE, Alan E. “Some Reflections on the Relationship of Treaties and Soft Law” (1999) 48 International & Comparative Law Quarterly 901. 61 Handrlica (fn 19) 288. 62 Accord in Trachtman (fn 2) 68. 63 See eg. (i) DE LA FAYETTE, Louise “Towards a New Regime of State Responsibility for Nuclear Activities” (1992) 70 Nuclear Law Bulletin 7, (ii) KISS, Alexander “State responsibility and liability for nuclear damages” (2008) 35 Denver Journal of International Law & Policy 67, (iii) HORBACH, Natalie The Confusion about State Responsibility and International Liability” (1991) 4 Leiden Journal of International Law 47. 64 ROMANOVA, Victoria V. “Legal regulation of nuclear medicine and modern goals of the development of energy law order” (2019) 10 Czech Yearbook of Public & Private International Law 313. 65 AL FARUQUE, Abdullah Nuclear Energy Regulation, Risk and the Environment (Routledge 2019) 82. 66 Ibid.

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