CYIL vol. 11 (2020)

CYIL 11 (2020) WHITHER THE FUTURE OF INTERNATIONAL NUCLEAR LAW? … a common minimal understanding of issues to be governed. However, the States tend to approach the regulation of peaceful uses of nuclear energy at international levels with great cautiousness. The interests of “nuclear” and “non-nuclear” States differ considerably. While the first group does not traditionally favour any direct international mechanism towards their nuclear industry, the second group prefers the opposite. Past developments have shown that it is, in principle, a nuclear accident with major trans-boundary impacts that trigger the sovereign States towards adopting binding multilateral agreements. 67 This, the adoption of the Convention on Early Notification of a Nuclear Accident, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency and the Convention on Nuclear Safety were the result of the accident in the Chernobyl nuclear power plant. 68 The events of 11 th September 2001 triggered the attention of the States towards potential risks arising from nuclear terrorism and led to adoption of the Amendment to the Convention on the Physical Protection of Nuclear Material in 2005. However, as reaction to the Fukushima accident, the Contracting Parties to the Convention on Nuclear Safety adopted a “Declaration on Nuclear Safety” 69 in 2015, which contains a series of principles to guide countries in the implementation of the objectives of the Convention. 70 By this, the States clearly demonstrated that rather than adopting a new multilateral framework, they prefer further maintenance of the existing one. Consequently, even with a near certainty of a major nuclear incident in the next decades, the adoption of new multilateral agreements do not seem to be probable. When addressing the risks arising from peaceful uses of nuclear energy at universal level, States will more probably use the instruments of soft law. “ Soft legalization has a number of significant advantages, including that it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors. ” 71 The Code of Conduct on the Safety and Security of Radioactive Sources clearly shows that States are better prepared to accept obligations arising from a semi-binding instrument, that those arising from formal multilateral agreements. Also, the case of the Code of Conduct on the Safety of Research Reactors demonstrates that the instruments of soft law are capable to effectively address those issues not covered by existing multilateral agreements. While the later mentioned Code covered the area of research reactors, future developments can call for similar codes addressing other emerging fields, which remain out of the scope of the Convention on Nuclear Safety. Recently, this is inter alia the case of those installations, where nuclear fuel is being re-processed and consequently, represents a certain degree of risk for human health and the environment. 72 67 See DOURANT-POUDRET, Emma “Le Future du Droit International Nucleaire” in Evelyne Reynaers (ed), XXII Nuclear Inter Jura 2016. Proceedings of the Congress (AIDN 2016) 637. 68 See CAMERON, Peter, HANCHER, Leigh and KUEHN, Wolfgang (eds.), Nuclear energy law after Chernobyl (Graham & Trotman 1988). 69 CNS/DC/2015/2/Rev.1. 70 STOIBER, Carlton “Developments in the Law of Nuclear Safety: the Vienna Declaration on Nuclear Safety ” in RAETZKE, Christian, FELDMANN, Ulrike and FRANK, Akos (ed), Aus der Werkstatt des Nuklearrechts (Nomos Verlag 2016) 397. 71 ABBOTT, Kenneth W. and SNIDAL, Duncan “Hard and Soft Law in International Governance” (2000) 54 International Organisation 421. 72 HANDRLICA, Jakub “Reprocessing of nuclear fuel: Certain legal issues arising from this unique technology” (2018) 9 The Lawyer Quarterly 150.

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