CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ MARINE MIGHT: EXPLORING THE LEGAL COMPLEXITIES SURROUNDING … validating the Agency’s capacity to verify long-life cores without access to fuel for re measurement, especially when FNPPs rely on factory-fuelled reactors designed for operation without on-site refuelling. 45 Prasad and others concur with the necessity of extending IAEA nuclear non-proliferation safeguards to address various aspects, including vulnerabilities and inherent advantages of sea-based nuclear reactors, when exported to a non-nuclear weapon The primary international instruments addressing the safety of nuclear power plants include the Convention on Nuclear Safety, 47 the Joint Convention, 48 the Early Notification Convention, 49 and the Assistance Convention. 50 Article 3 of the CNS delineates the scope and application of the framework, focusing explicitly on “nuclear installations”. The CNS obliges the States Parties to abide by certain safety regulations for site selection, design, construction, and operation of nuclear facilities. Under Article 2(i), a nuclear installation is any ‘land-based civil nuclear power plant within its jurisdiction.’ The question arising is whether FNPPs can be classified as a “nuclear installation” under the CNS, as the Convention is explicitly tailored for “land-based civil nuclear power plants.” On the other hand, FNPPs are deployed in the ocean with floating mechanisms. Additionally, a notable gap lies in the Convention’s coverage limited to “civil” nuclear power plants, thereby excluding FNPPs deployed to supply power for military operations. This exclusion raises concerns regarding liability for nuclear damage resulting from an FNPP’s activities, primarily when the power plant serves both civilian and military purposes, blurring the line between their civilian and military applications. The phrase “within its jurisdiction” further complicates any attempt to apply the CNS to non land-based power plants. The expression underscores the challenges encountered when an FNPP traverses through or is stationed on the High Seas, which is not under the jurisdiction of any state. If the interpretation of “within its jurisdiction” does not pertain to the maritime zone being traversed but rather to the state responsible for the custody of the FNPP, it might be argued that the state designated as the flag state during the transportation of the FNPP will have jurisdiction. In either scenario, ambiguity persists. Some scholars have suggested adopting a far-sighted approach by allowing the definition of “nuclear installations” in the CNS to evolve with societal and technological innovations. 51 In an era of exponential technological change, better international law is not about having more detailed definitions of technology but about allowing sufficiently flexible treaties to evolve with the quickly changing environment. Such scholars rely on the Preamble, paragraph (viii) of the Convention, which prioritizes “fundamental safety principles” rather 45 Ibid. 46 PRASAD, S., ABDULLA, A., MORGAN, M. and AZEVEDO, I. L. ‘Non-proliferation Improvements and Challenges Presented by Small Modular Reactors’ (2015) 80 Progress in Nuclear Energy 102–109. 47 Convention on Nuclear Safety 1994. 48 Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management 1997. 49 Convention on Early Notification of a Nuclear Accident 1986. 50 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986. 51 TSCHERNING, R., PAPASTAVRIDIS, R. and RAETZKE, Ch. ‘Transportable Nuclear Power Plants – An Update on Regulatory Responses in International Nuclear Law’ (2014) Nuclear Law in the European Union and Beyond 175–200. state. 46 Safety

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