CYIL vol. 11 (2020)

CYIL 11 (2020) WHITHER THE FUTURE OF INTERNATIONAL NUCLEAR LAW? … appropriate instruments to address the prospective establishment of international (shared) repositories in the future. 81 Consequently, this article argues that future developments of international nuclear law will occur mainly through new regional, or bilateral agreements, or by adopting of new instruments of soft law. Further, the article claims, that one can more probably await the use of flexible mechanisms in existing international agreements, than adoption of new agreements in this field. 2.4 Limits of futuristic predictions in international nuclear law The existing scholarship on legal futurism pointed out 82 that the tendencies existing in certain fields of law on a long-term basis are not entirely decisive for the future of law in the analyzed field. There are other factors that are capable of causing developments other than those predicted: Firstly , a change of energy policy in the concerned States would theoretically be a trigger for new approaches to international obligations. In cases where the State might opt for a more anti-nuclear stance could have considerable consequences for its legal framework. As an example, the prohibition of transport of radioactive waste through a territory of the State can be imposed. The Joint Convention guarantees 83 the right of each Contracting Party to prohibit the import or transport of radioactive waste within its territory. Recently, there are a number of States that used this possibility and prohibited such movements in their statutory law (eg. Austria, Sweden, Slovakia, Finland). 84 Consequently, a change of energy policy is capable of causing further restrictions in this regard in the future. Secondly , the massive employment of new technologies may trigger the attention of States and inspire their desire for a new multilateral framework. We can recall the fact that both the Paris and Vienna Conventions were adopted by the States in the 1960s in order to address emergence of an entirely new type of transboundary risk, arising from nuclear installations. However, one may ask whether the massive employment of an entirely new nuclear technology is really probable in the next decades. Thirdly, a nuclear accident with major transboundary consequences may very probably trigger the willingness of the States to address certain gaps in existing instruments by new multilateral conventions. The fact is that accidents seem to have represented a major vehicle in the development of international nuclear law over the last decades. It was only the Chernobyl accident, that caused adoption of the first ever multilateral instrument in the field of nuclear safety – the Convention on Nuclear Safety in 1994. The accident in Fukushima led to the ratification of the Convention on Supplementary Compensation by the necessary number of States.

81 See HANDRLICA, Jakub “Underground repositories, reprocessing facilities and floating nuclear power plants: liability issues revisited” (2019) 37 Journal of Energy & Natural Resources Law 263. 82 See Smits (ft 8) 477. 83 See Preamble (xii) of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. 84 See EMMERECHTS, Sam “Nationality of Radioactive Waste and Spent Nuclear Fuel: Legal Constraints on Import, Export and Disposal” in: Nuclear Inter Jura 2009. Proceedings (INLA 2009) 437.

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