The Legal Value of General Principles, Technical Norms and Standards in European Nuclear Safety Law: The Imbalance Between Soft and Hard Law and the Need for Global Regulatory Governance

Abstract

In all branches of law, the global economic system brings along a vast record of soft law, general principles, technical norms and standards, emanating from International institutions up to self-regulation by industry. In nuclear law, the IAEA in Vienna is responsible for an ever expanding set of International Conventions and nuclear safety standards. We can find these soft law principles and standards back in the clothing of hard law, or in the licensing procedures, at the national level. The larger part however is never “transposed” into national law and especially harmonization, implementation and control of general principles and standards remain doubtful. International nuclear law can also be seen as a precursor of a sort of “incentivating law”, using technical cooperation models (within IAEA, WENRA, WANO . . .) and peer reviews. At the most fundamental level there is the question as to whether the overriding system of soft law in such an important industrial sector is democratic, transparent and effective enough. In this article we try to draw a global picture of the international regulatory regime on nuclear safety, using standards and optimization principles and highlighting the imbalance between “the rule of law” (meaning the hierarchical and legitimate set of rules and norms, established along the lines of a democratic regulatory process) and the many soft laws. The findings of this article underscore the urgent need to move towards establishing a coherent framework for global regulatory governance.