CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ CHARTING A COURSE TOWARDS A UNIVERSAL REGIME OF LIABILITY FOR NUCLEAR… harm. Similar to nuclear liability, there is a patchwork of international regimes that cover specific types of pollution or accidents, and at that, the United States is not a party to many. 74 Two, for example, are UNCLOS, which set forth obligations to coastal states to protect the environment, and the Nuclear Materials Maritime Carriage Convention, which exonerates a party who might otherwise be liable for damages from a nuclear incident if the operator of a nuclear installation where the waste was produced is liable under the Paris Convention, Vienna Convention, or similar national law. 75 The international regime provides damage liability and financial security funds through the International Civil Liability Convention (“CLC”) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution (“IOPC”) with later supplements and protocols but this applies to oil spills and not to other hazardous substances. 76 However, the United States assigns pollution liability statute under the Oil Pollution Act of 1990 (“OPA”) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). 77 This regime assigns liability and provides an avenue for recovery of damages covering essentially all marine pollution by creating three tiers of liability: strict liability to the owner or operator of a vessel, maritime tort liability to discharge of any hazardous substance, and applicable liability under state law. 78 So here, too, the international community lacks a uniform standard that regulates pollution events on the seas, but there are comprehensive approaches available. In conclusion, the law in the maritime provides piecemeal regulation that is far short of a comprehensive framework to govern global nuclear shipping. The Brussels Convention developed a regime to address the liability of a nuclear incident by a nuclear ship, but it was never entered into force. Otherwise, the global community has adopted laws addressing the design, construction, and operation of nuclear ships through SOLAS to establish safeguards. Similarly, UNCLOS and SOLAS set out requirements for environmental protection and carriage of hazardous substances. Last, liability for discharges of hazardous substances and pollution does not follow a uniform international approach but seems to diverge into two approaches, an international system and a framework in the United States. 4. Analysis Now that we have navigated the complex framework of the nuclear liability law, the purpose of the analysis is to demonstrate that nuclear ships are not included in the scope of any regime. The next step is to propose what that framework may look like under an international treaty and how such a convention should be enacted into law in the United States. This will include an analysis of why nuclear ship liability law should be ruled under admiralty jurisdiction. We will also turn to similar areas of law that may support the proposal with precedent from hazardous waste liability in the maritime, such as oil spills or radioactive leaks.

74 SCHOENBAUM, T. S., The Deepwater Horizon Oil Spill in the Context of the Public International Law Regimes for the Protection of the Marine Environment: A Comparative Study, 25 U.S.F. Mar. L.J. 1, 13 (2013). 75 Id. at 11. 76 Id. at 11–12.

77 Id. at 15. 78 Id. at 16.

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