Convention on Nuclear Safety

sovereign state.¹⁶ For example, if a criminal violates human rights, he will be punished by the domestic law. On the other hand, "economic incentives" were widely applied in terms of the issues that are related to the inherent difference in between the developed and developing countries, such as the emission of greenhouse gas.¹⁷ In the following sections, it could be seen that the implementing measures of the nuclear safety conventions were not strictly confined to either "economic incentives" or "command and control"

approaches. Instead, those conventions authorize each State Party the power to develop its domestic legislation and executive methods as long as the objectives of the conventions could be met.

In terms of assisting measures, there are at least three types, including

―information dissemination‖, ―implementation assessment‖, and ―resolution of disputes‖.¹⁸ "Information dissemination" is used to inform each Contracting Party about any important message and update that is related to the convention; "implementation assessment" is to regularly evaluate the implementing status of the convention in each State Party; and "resolution of disputes" is to revolve the disagreements among the States Parties in terms of the explanation or reinforcement in any article of the convention. Overall, assisting measures are to help the conventions to execute more smoothly and effectively, and they are necessary for every international convention no matter what kind.

Last but not least, "equitable measures" are to compensate the vulnerable developing countries. Thus, they are more likely to be seen in the abovementioned greenhouse gas emission issues or in the international environmental laws ¹⁹ where there is inherent difference between the hand, even if a convention covers all the aspects, some of the articles might be redundant and useless.²¹ The following sections will analyze the six nuclear safety conventions based on this analytical method, and then each convention would be examined if there were any deficiency or redundancy.

2.3. Convention on Nuclear Safety

Table 1 categorizes the articles in the Convention on Nuclear Safety into the four broad categories: objectives, implementing measures, assisting measures, and equitable measures based on the function of each article.

16 Schwelb, E. (1968). Civil and Political Rights: The International Measures of Implementation. The American Journal of International Law, 62(4), 827.

https://doi.org/10.2307/2197013

17 Yeh, J.-R. (2015). Climate Change Management and Laws. Taipei, Taiwan: National Taiwan University Press. (葉俊榮(2015)。氣候變遷治理與法律。臺北市:臺大出版中心。)

18 Yeh, supra note 11, at 137-140.

19 Hunter, D., Salzman, J., and Zaelke, D. (2015). International Environmental Law and Policy.

Minnesota, MN: Foundation Press.

20 Canfa, W. (2007). Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reforms. Vermont Journal of Environmental Law, 8, 159-193.

21 Quinn, E. (2011). The Refugee Convention Sixty Years On: Relevant or Redundant.

Working Notes, 68, 19-25.

Moreover, both the categories of implementing measures and assisting measures could be broken down into more detailed subsets as elaborated in the introduction of the analytical method.

E qu ita ble M ea su re s A rticl e 1 1 R eso luti on o f D isp ute s A rticl e 2 9 A ssi st ing M ea su re s Im ple m en ta tio n A sse ssm en t C ha pte r 3 Info rm atio n D isse m ina tio n A rticl e 5 a nd C ha pte r 3 S an ct io ns A rticl e 9 C om pe nsa tio n o f D am ag e A rticl e 4 Im ple m en tin g M ea su re s P erm issi on A rticl es 7.2 .2 a nd 1 7 Q ua ntit ativ e R eg ula tio ns P ro hib itio n A rticl es 14 a nd 1 7 O bje ct ive s A rticl e 1

T a b le 1 . C o n v e n tio n o n N u c le a r S a fe ty Th e ta ble p uts the a rticl es into d iffe re nt ca te go rie s ba se d o n th e sp eci fic fun ct io n o f e ach a rticl e.

S ou rce :

Y e h, J. -R . ( 1 9 9 9 ). G lo b a l E nv iro nm e nta l Issu e s—f ro m th e V ie w p o in t o f T a iw a n. T a ip e i, T a iw a n: C H U LIU P U B LIS H E R . ( 葉俊榮 (1 99 9) 。全球環境議題 :臺灣觀點。臺北市 :巨流。 ) Inte rna tio na l A to m ic E ne rg y A ge ncy (1 99 4). C on ve ntio n o n N ucl ea r S afe ty. V ie nn a, A ust ria : Inte rna tio na l A to m ic E ne rg y A ge ncy .

The following sections will evaluate the adequacy and deficiency of the Convention on Nuclear Safety with respect to its objectives, implementation, assisting approaches, and equity.

2.3.1. Objectives

As described in Article 1 of the Convention, the objectives of this Convention are to enhance national measures and international safety related technical cooperation in order to achieve and maintain a high level of nuclear safety worldwide, prevent accidents with radiological consequences, mitigate radiological consequences should they occur, establish effective defenses in potential radiological hazards of nuclear installations, and maintain the effective defenses. With the above effort, hopefully it could protect individuals, society, and the environment from harmful radiation of the nuclear installations.²² From the objectives, it could be inferred that this Convention requires each State Party to set up its own domestic legislation, regulatory methods, and safety standards rather than the central authority—IAEA—sets up a universal standard and obligates every Contracting Party to follow. Some people may argue that it would be better for the IAEA to set up a common regulation for all States Parties to follow, but actually it is very difficult because

―state sovereignty‖ is the principle of international law.²³ As Hunter et al. (2015) illustrates in Chapter 8.2., Principles Shaping International Environmental Law and Policy, of their publication, state sovereignty in the legal sense signifies independence—that is, ―the right to exercise, within a portion of the globe and to the exclusion of other States, the functions of a State such as the exercise of jurisdiction and enforcement of laws over persons therein.‖²⁴ In other words, there is no international convention which has the right to make a State Party obey the obligations. As a result, it would be more practical to let each State Party establish its own domestic legislation and reinforcement procedures, and then review each State Party‘s implementing status by regularly holding diplomatic conferences, and this is basically the way that was adopted in the Convention on Nuclear Safety. In addition, although the objectives of the Convention aim to facilitate technical cooperation, some people might think that it is better to ban the technically poor countries from constructing nuclear power plants. Once again, no international law could violate state sovereignty,²⁵ so technical cooperation is by far the best way to secure the nuclear safety worldwide.

2.3.2. Implementing Measures

In the Convention on Nuclear Safety, pursuant to Article 18, within the national law, each Contracting Party shall take the legislative, regulatory and administrative measures necessary for implementing its obligations under this Convention.²⁶ This certainly makes sense because each State Party has its own sovereignty; no international convention has the right to interfere the domestic affairs.²⁷ As a result, it is much more practical to let the States Parties decide their own affairs while the Convention provides a general

22 International Atomic Energy Agency, supra note 6, at Article 1.

23 Hunter, supra note 19, at Chapter 8.

24 Ibid.

25 Ibid.

26 International Atomic Energy Agency, supra note 6, at Article 4.

27 Hunter, supra note 19, at Chapter 8.2.

direction. After all, any compulsory international convention is impossible.

Even the ―compulsory jurisdiction‖ of the International Court of Justice is not compulsory; instead, any State has the option not to accept the Court‘s jurisdiction. If and only if the State has granted its consent, it must subject itself to the Court‘s jurisdiction.²⁸

When it comes to the legislative and regulatory framework, Article 19 says that each Contracting Party shall establish and maintain a legislative and regulatory framework to govern the safety of spent fuel and radioactive waste management.²⁹ Meanwhile, the legislative and regulatory framework should provide for the establishment of applicable national safety requirements and regulations for radiation safety a system of licensing of spent fuel and radioactive waste management activities a system of prohibition of the operation of a spent fuel or radioactive waste management facility without a license the enforcement of applicable regulations and of the terms of the licenses and a clear allocation of responsibilities of the bodies involved in different steps of spent fuel and of radioactive waste management.

In terms of the regulatory body that implements the legislative and regulatory framework, Article 20 provides that each Contracting Party should support the regulatory body with adequate authority, competent financial resources, and human resources to fulfill its assigned responsibilities.

Moreover, each Contracting Party shall take the appropriate steps to ensure separation between the functions of the regulatory body and the functions of organizations that are involved in spent fuel management or radioactive waste management. As a matter of fact, the background of making this Convention was under the stress of the previous Chernobyl Nuclear Accident. Back in the time, the nuclear safety technology was not generally mature in most of the countries,³⁰ so it was difficult to set up a high standard that was universal for the entire world. It was rather applicable to let each State Party develop its own regulatory body and implementation organization like what was mentioned in this Convention. However, theoretically, under the design of the Convention, the peer review process should have boosted the progress of nuclear safety technology of each State Party over the years. As mentioned in Article 5 in the Convention, each Contracting Party must report the domestic measures that it took to meet the obligations of this Convention. Such report would then be reviewed in the regularly held review meetings; the peer pressure should force each State Party to enhance its domestic nuclear safety measures.

Unfortunately, it turns out that the peer review mechanism is more likely to be a form with very little realistic effects. According to the ―2011 Annual Report‖

submitted by the IAEA, in which the Fukushima Nuclear Disaster occurred in March 2011, in April 2011, the review meeting of the Contracting Parties to the

28 Alexandrov, S. A. (2006). The Compulsory Jurisdiction of the International Court of Justice:

How Compulsory Is It? Chinese Journal of International Law, 5(1), 29–38.

https://doi.org/10.1093/chinesejil/jml008

29 International Atomic Energy Agency, supra note 6, at Article 7.

30 Jankowitsch-Prevor, O. (2006). The convention on nuclear safety. In The Convention on Nuclear Safety, In: International Nuclear Law in the Post-Chernobyl Period, A Joint Report by the OECD Nuclear Energy Agency and the International Atomic Energy Agency (pp. 155-168).

Convention on Nuclear Safety was convened in Vienna.³¹ By instinct, in the review meeting especially right after the catastrophic nuclear disaster, the contracting parties should aggressively reexamine the existing articles and come up with a lot of improvements. However, it turned out that the Contracting Parties only made a specific statement in response to the accident.³²

2.3.3. Assisting Measures

In Chapter 3 of the Convention, there are detailed deliberation procedures of each review meeting. Furthermore, Article 29 provides that the disputes in between two or more Contracting Parties should be discussed and resolved in a review meeting.³³ Overall, the assisting measures are robust in this Convention that cover information dissemination, implementation assessment, and resolution of disputes. Even so, just like what was mentioned in the above discussion of implementing measures, there is doubt that the review meetings are simply a form without any effective influence on the improvement of nuclear safety. Or maybe the content of the review meetings are rich and effective, but it is the confidentiality provided in Article 36 in this Convention³⁴ that makes the IAEA Annual Report seems hollow.

2.3.4. Equitable Measures

In this Convention, Article 11 did mention that the financial and human resources must be plentiful enough and available throughout the lifetime of a nuclear installation, and that each Contracting Party shall take the appropriate steps to ensure that sufficient numbers of qualified staff with appropriate education, training and retraining are available for all safety related activities for each nuclear installation,³⁵ but it did not mention how the developed countries could aid the developing countries in terms of the fund and techniques. Some may argue that such equitable measures are unnecessary since there are many energy options, and the countries without the necessary fund and techniques could simply decide not to use nuclear power plants.

However, as mentioned earlier for several times, each country has the absolute sovereignty to decide its domestic affairs,³⁶ so the States Parties must add the equitable measures as soon as possible in the future in order that the nuclear safety in the developing countries could be improved and hopefully the nuclear disasters would never happen again.

2.4. Joint Convention on the Safety of Spent Fuel Management and on