The Peaceful Use of Nuclear Energy and the Protection of the Environment

Abstract

The peaceful uses of nuclear energy present a challenge for the law in two totally opposite directions. On the one hand, certain States still want a better chance to use nuclear energy. For them, a major question is the promotion of, and access to, the use of nuclear energy. On the other hand, there are a number of risks involved in the use of nuclear energy. These concerns have triggered national and international legal and non-legal regulations restraining the use of, and access to, nuclear energy. The dangers to be dealt with can be summarized as follows: Radioactive materials discharged into the environment in the course of the production process of uranium and plutonium, the relevant raw material; Radioactive materials discharged into the environment as a result of accidents or malfunctioning of nuclear installations, or of nuclear propelled vehicles, or as a consequence of transports of nuclear materials; Final disposal of radioactive waste; Nuclear safety, in particular the risk of diversion of nuclear materials into the hands of criminals (‘nuclear terrorism’); Risk of diversion of nuclear materials or technology for weapons purposes. The first three concerns present major environmental problems. These environmental concerns coincide with health risks. Although these concerns have international dimensions, international legal answers to those problems have so far been incomplete. The basic answer of customary law relating to the risk of transfrontier nuclear pollution is the so-called no harm rule, recognized by the Trail Smelter arbitration. As to nuclear pollution, that rule needs further concretization, preferably by treaty law, which still is incomplete. There are treaties dealing with civil liability, obligatory insurance and communications or assistance in case of accidents. IAEA environmental standards for nuclear installations, transportation and waste disposal have so far not reached the status of legally binding norms. As to the content of the regulatory system, three main areas of achievement are highlighted in this Chapter: First, there are international norms addressing transboundary harm stemming both from general international (environmental) law and from specific treaties. Second, there exists an internationally binding liability regime based on operator liability, which shields the States against claims involving their own responsibility; its adequacy for protecting current victims and future generations is, however, debatable. There are, finally, multiple international standard setting procedures leading to a great array of soft law. The environmental and health risks involved in the production and use of nuclear energy are a long-term problem. The risk of radioactive pollution is not banned in a convincing manner. There is also no adequate answer for safe radioactive waste disposal, nowhere on the national level, far less on the international level. These problems affect the fate of future generations, thus prompting an enhanced responsibility for relevant decision-makers. Yet as in other problem areas the international community is slow in living up to the challenge.