International Environmental Norms Applicable to Nuclear Activities, with Particular Focus on Decisions of International Tribunals and International Settlements

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I. INTRODUCTION

Treaties, customary international law, and general principles of law constitute the primary sources of international environmental law as of international law in general, while judicial decisions and scholarly writings comprise "subsidiary means for the determination of rules of law." (1) However, the new sources of international law that emerged during the second half of the twenty-first century also include declarations and resolutions adopted by the United Nations organs and other intergovernmental organizations, as well as principles, guidelines, and recommendations produced by International Financial Organizations (IFOs), other UN bodies such as the International Atomic Energy Agency (2) or intergovernmental organizations such as the Organization for Economic Cooperation and Development (OECD), (3) or multilateral conferences such as the 1972 UN Stockholm Conference on the Human Environment (4) and the 1992 UN Rio Conference on Environment and Development. (5)

As these new sources come in the form of nonbinding statements, contrasted with binding international law norms established by conventional and customary international law, they are known as "soft law." But with frequent reiteration of these principles, reflection in state practice, invocation before tribunals and adoption by them, and incorporation by IFOs, they create expectations of similar future conduct by states, and consequently acceptance as customary international law. Through this practice and through the codification of these principles in treaties, the "soft law" they embody may harden into binding legal obligations. Hence, these new sources make valuable contributions to international environmental law. Consequently, the discussion in this paper is confined not only to the already accepted principles of international environmental law, but also to those norms that are currently evolving and emerging through this ongoing process.

All nuclear activities, and not just those confined to nuclear weapons, are cause for serious concern because of their potential threat and harm. The April 1986 Chernobyl accident, (6) the worst industrial disaster ever, has alerted the international community that nuclear power plants pose a grave danger not only to the region in which they are located but to distant lands, as well. In addition to direct casualties of the catastrophe, (7) those affected by it include more than three million victims in Ukraine and Belarus. (8) Chernobyl had taken an $11 billion toll on Ukraine's economy by the year 1999. (9) The Soviet Union spent billions on Chernobyl rehabilitation, (10) and Ukraine has continued to provide compensation to the victims of the disaster. Environmental damage occurred in many European countries as the cloud of radioactive residue spread all over the northern hemisphere. Thus, Chemrnbyl has sharpened our awareness of what severe ecological and health impacts an unintentional release of radiation can have on such a vast geographical area. (11)

International efforts primarily under the auspices of the IAEA and the OECD have been ongoing to prescribe environmental norms applicable to nuclear activities (12)--obligating countries to meet nuclear safety requirements, establishing guidelines and a legal framework in the form of conventions on early notification of a nuclear accident and assistance in the case of a nuclear accident or radiological emergency, and developing rules on state responsibility and liability conventions. However, Chernobyl provides a glaring example of the inadequacy of the prevailing legal regime regarding liability and compensation for harm caused by nuclear activities. (13)

After briefly noting in the next part major international environmental norms that are pertinent in the nuclear context, the discussion in subsequent parts will focus on the decisions of international tribunals and international settlements, with a concluding section on recommendations. …