CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ EURATOM AND THE USE OF NUCLEAR ENERGY TO POWER LUNAR BASIS of nuclear industries.’ 29 We know that the wording of the Euratom Treaty has been regularly interpreted in a flexible way to cover any dynamic changes in technological developments. 30 Thus, the Euratom Treaty represents a living organism that is able to react to newly arising technological challenges in the field of nuclear industry. Having said this, the only limit of Euratom’s involvement in prospective lunar exploration is represented by the requirement of peaceful purposes of nuclear use. Pursuant to the existing interpretation, Euratom does not possess any competence over defence (military) technologies. 31 b) Legal uncertainty This argument has been recently exhaustingly discussed by Dimitra Stefoudi in her contribution to the EJIL: Talk! 32 with respect to the prospective EU Space Law. The core of this argument against EU legislative involvement in the space field lies in the risk of potential conflict with the robust framework, as already established under international space law. A very similar argument can also be presented vis-á-vis a prospective legislative involvement of Euratom in the field of lunar activities. Here, a potential risk of legal fragmentation and prospective conflicts between the rules may also arise. One may refer to the set of rules as currently arising from the Principles Relevant to the Use of Nuclear Power Sources in Outer Space 33 and the subsequent soft law, as developed by the United Nations (UN), together with the International Atomic Energy Agency (IAEA). In this respect, however, one may argue that Euratom has already achieved considerable experience in establishing legislation, which further elaborates on obligations arising from international public law. 34 This has been, in particular, the case in the field of nuclear safety, where several directives exist in parallel to the Convention on Nuclear Safety, which represents the primary instrument in this field in international public law. c) Premature involvement Lastly, one may also argue that any recent involvement of Euratom in prospective lunar endeavours would be premature and, consequently, ineffective. With respect to a legal framework for any advanced technology, establishing effective rules requires the existence of a clear and finalised technological master plan. 35 In this respect, legislation to address newly arising technological challenges can be neither premature nor delayed. 36 However, one must bear in mind that when referring to Euratom’s involvement in the lunar exploration, we 29 Ibid, Article 1. 30 See WOLF, S. ‘Euratom, the European Court of Justice and the Limits of Nuclear Integration in Europe’ (2011) 12 Ger. Law J. 1637, TRUE, C. ‘The Euratom Community Treaty’s prospects at the start of the new millennium’ (2006) 1 IJNucL 247. 31 See Case 61/03 European Commission v United Kingdom [2005] ECR I-2477, paras 28-29 and Case 65/04 European Commission v United Kingdom [2006] ECR I-2239, paras 21-21. Aslo see GERVASONI, S. ‘Le traité Euratom ne s’ applique pas aux activités nucléaires militares’ (2005) RFDA 828. 32 See STEFOUDI, D. ‘EU Space Law – Three reasons against, three reasons in favour’ (29 April 2024, EJIL: Talk! Blog of the European Journal of International Law ), available at: https://www.ejiltalk.org/eu-space-law-three reasons-against-three-reasons-in-favour/. 33 Resolution 47/68, adopted by the General Assembly of the UN. 34 See GRÜNWALD, J. Das Energierecht der Europäischen Gemeinschaften: EGKS, Euratom, EG. Grundlagen, Geschichte, geltende Regelungen (De Gruyter Recht 2003), at pp. 120–122. 35 See COOK, H. The Law of Nuclear Energy (3rd edn, Sweet & Maxwell 2022), at pp. 499–500. 36 See LIZIKOVA, M. ‘International nuclear law: innovative development of the legal environment’ (2003) 18 Proceedings of the Institute of State and Law 85.

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