Convention on Early Notification of a Nuclear Accident

demonstration project in Ghana.‖⁶⁷ Even though the borehole disposal seems like an ideal solution to cope with the radioactive wastes generated by a nuclear power plant, there are two issues. First, countries like Taiwan could hardly apply such method since it requires an ideal site with no major fault line passing by. Secondly, even if the containers are perfectly sturdy that the radioactive pollutants would never leak out, how could we make sure that our future generations might not accidentally excavate the borehole hundreds of years later? Thus, it would be much better if the Joint Convention could add an additional clause to define the intergenerational justice in details. This way, the aforementioned issue may be resolved.

2.5. Convention on Early Notification of a Nuclear Accident

Table 3 categorizes the articles in the Convention on Early Notification of a Nuclear Accident into the four broad categories: objectives, implementing measures, assisting measures, and equitable measures based on the function of each article. 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.

67 Ibid.

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

2.5.1. Objectives

This Convention desires to strengthen further international cooperation in the safe development and use of nuclear energy, so each State Party must provide relevant information about nuclear accidents as early as possible in order that transboundary radiological consequences can be minimized.⁶⁸ As a matter of fact, the Chernobyl Nuclear Disaster took place on April 26^th, 1986.

Soon after that, this Early Notification Convention was adopted on September 26^th, 1986, only five months after the disaster. With prominent international

68 International Atomic Energy Agency (1986). Convention on Early Notification of a Nuclear Accident. Vienna, Austria: International Atomic Energy Agency.

ObjectivesPreambleImplementing MeasuresArticle 4Information DisseminationArticles 5, 6, and 7Assisting MeasuresImplementation AssessmentResolution of DisputesArticle 11Equitable MeasuresArticle 8

Source: Table 3. Convention on Early Notification of a Nuclear Accident Yeh, J.-R. (1999). Global Environmental Issues—from the Viewpoint of Taiwan.Taipei, Taiwan: CHULIU PUBLISHER. (葉俊榮(1999)。全球環境議題:臺灣觀點。臺北市:巨流。) The table puts the articles of the Early Notification Convention into differentcategories based on the specific function of each article.

International Atomic Energy Agency (1986). Convention on Early Notification ofa Nuclear Accident. Vienna, Austria: International Atomic Energy Agency.

consensus,⁶⁹ this Convention entered into force on October 27^th, 1987, the year following the Chernobyl Nuclear Disaster.

It could be inferred that the foundation of the Early Notification Convention was mainly due to the fact that the Russian Federation did not timely notify other countries about the Chernobyl Nuclear Disaster. Instead, the Russian Federation tried to hide the fact, and the ―initial information that an accident had occurred came from detection of elevated radiation readings in Sweden, before the Soviet Government had informed the international community that the accident had occurred.‖ It is very likely that when the rest of world finally learned about the incident, many people had already eaten the radioactively polluted food and drunk the radioactively polluted water. For the purpose of preventing the tragedy from happening again, the Early Notification Convention was crafted, and from its clear and concise objectives, it could be inferred that this is an excellent convention that will certainly force every State Party to inform the nuclear accident in the first moment. A good example is that the Japanese Government timely informed the IAEA after the Fukushima Nuclear Disaster occurred. ⁷⁰ Indeed, in accordance with the Vienna Convention on the Law of Treaties, a signatory may not violate the objectives of the signed convention even before its deposition of the instruments of ratification, acceptance, approval or accession.⁷¹ As a result, the objectives of the Early Notification Convention could certainly obligate each Member State to timely inform the nuclear accidents and let the international society know about it immediately.

2.5.2. Implementing Measures

Once a nuclear accident occurs, Article 4 says that the IAEA shall promptly inform the countries which are or may be physically affected. The notification includes the nature, the occurrence time, and the exact location of the nuclear accident. Moreover, the IAEA shall also provide the available information relevant to minimizing the radiological consequences in those countries.⁷² This is undoubtedly the perfect example of a good convention in terms of the implementing measures. This Convention allows any country that might be potentially affected by the nuclear incident to know about where it happened, when it occurred, and which type of accident it was. With the information, each country can assess its potential impact and evacuate its local residents if necessary. Despite the robustness of the implementing measures, there has been very few chances to put the Convention into practice since there is only one major nuclear accident—the Fukushima Nuclear Disaster—after this Convention entered into force. Moreover, since the magnitude of the radioactive release was much milder than the one in the Chernobyl Accident, only the local residents in Fukushima, rather than anywhere else in the world, needed to evacuate. As mentioned by Cheng and Jhang (2011), only the local residents who lived within 30 kilometers away from the Fukushima Nuclear Power Plant needed to evacuate.⁷³ As a result,

69 Burns, supra note 1.

70 Ibid., 22.

71 United Nations, supra note 13.

72 International Atomic Energy Agency, supra note 68, at Article 4.

73 Cheng and Jhang, supra note 2, at 77-83.

although the Japanese Government made a timely notification to the international society,⁷⁴ the significance of the report was relatively small.

Aside from the notifications of the Member States, the IAEA has done a comprehensive and thorough work on the ―Incident and Emergency Preparedness and Response‖, as elaborated in an individual chapter in the IAEA 2011 Annual Report.⁷⁵ It is the annual report that was released in the year that the Fukushima Accident took place. According to the annual report,

―the Emergency Preparedness Review (EPREV) service, offered to Member States since 1999, focuses on independent assessments of national preparedness for responding to radiation incidents and emergencies, and of compliance with Agency Safety Requirements.‖⁷⁶ The safety requirement includes the ―Preparedness and Response for a Nuclear or Radiological Emergency (IAEA Safety Standards Series No. GS-R-2)‖ which is a comprehensive guiding book published by the IAEA.⁷⁷ In addition, according to this guiding book, it has been superseded by another guiding book

―Preparedness and Response for a Nuclear or Radiological Emergency (IAEA Safety Standards Series GSR Part 7)‖ since the year 2015.⁷⁸ In the most updated guiding book, detailed requirements on the emergency response for a nuclear accident are provided. For example, in page 82 of this guiding book, it requires that there must be a response organization under the national level, and ―each response organization shall prepare an emergency plan or plans for coordinating and performing their assigned functions as specified in Section 5 and in accordance with the hazard assessment and the protection strategy.‖⁷⁹ In Section 5 of the book, some great management practices could be observed.

For instance, it was regulated in Paragraph 5.38.(a) that for facilities in category I, ―arrangements shall be made for taking urgent protective actions and other response actions before any significant release of radioactive material occurs.‖⁸⁰ Furthermore, the book breaks down the radioactive facilities into five categories in which category I is the most dangerous one including the commercial nuclear power plants, and category II is less dangerous than category I that includes the research nuclear power plants—the scales are much smaller than the commercial ones because they are only for the research purpose. Category III is even safer which is inclusive of some hospital instruments that would emit radioactive waves. Categories IV and V are even less critical.⁸¹ Therefore, it totally makes sense that Paragraph 5.38.(a) sets up the strictest regulations for the facilities in Category I considering its magnitude and consequence of a nuclear accident. There are still a lot of reasonable and excellent practices in this informative guiding book.

74 Burns, supra note 1, at 22.

75 International Atomic Energy Agency, supra note 31, at 65-69.

76 Ibid., 72.

77 Ibid.

78 International Atomic Energy Agency (2002). Preparedness and Response for a Nuclear or Radiological Emergency (IAEA Safety Standards Series No. GS-R-2). Vienna, Austria:

International Atomic Energy Agency.

79 International Atomic Energy Agency (2015). Preparedness and Response for a Nuclear or Radiological Emergency (IAEA Safety Standards Series GSR Part 7). Vienna, Austria:

International Atomic Energy Agency.

80 Ibid., 29.

81 Ibid., 43-44.

Unfortunately, the requirements of this guiding book are not compulsory.

Instead, it is very likely that the regulations were reinforced in the States Parties either because those countries volunteered to participate in the program, or because the IAEA felt like those States Parties were relatively weak in terms of the emergency response. As described in the annual report,

―In 2011, EPREV missions were conducted in Albania, Estonia, Georgia, Latvia, Pakistan and the Russian Federation.‖⁸² In addition to that, ―the regulatory aspects of the national radiation emergency preparedness systems were assessed in the Republic of Korea, Slovenia, Switzerland, and the United Arab Emirates within the framework of Integrated Regulatory Review Service (IRRS) missions.‖⁸³ It definitely would be much better if the requirements in the guiding book could be a universal standard for every State Party to comply with rather than just a couple of countries mentioned above. After all, neither this Early Notification Convention nor the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency that will be discussed in the upcoming section has incorporated the domestic emergency response plans into one of the obligations. If the IAEA could incorporate these requirements into one of those Conventions, or to craft an individual Convention just for the domestic emergency response plan, and then make the review service universal to each Member State to see if they could follow up the standards, it is highly believed that the international nuclear security could be elevated to the next level.

2.5.3. Assisting Measures

As illustrated in the previous discussion, the analytical method breaks down the assisting measures into three categories: information dissemination, implementation assessment, and resolution of disputes. ⁸⁴ The Early Notification Convention includes information dissemination and resolution of disputes, but it lacks implementation assessment.

When it comes to information dissemination, Article 5 provides that if a nuclear accident occurs, the State Party must tell other countries the assumed or established cause and the foreseeable development of the nuclear accident relevant to the transboundary release of the radioactive materials.⁸⁵ This is a good article because the required information will allow the countries which may be potentially influenced to be prepared for the upcoming crisis. In addition to that, Article 5 also requires the State Party where the nuclear accident takes place to provide the information on current and forecast meteorological and hydrological conditions.⁸⁶ This is also a reasonable and important regulation because such information is necessary for forecasting the transboundary release of the radioactive materials.

As for the settlement of disputes, Article 11 provides that the Parties to the dispute shall consult with a view to the settlement of the dispute by negotiation or by any other peaceful means of settling disputes acceptable to them. This is also a good article because there are already a lot of treaties governing the compensation issue once a nuclear accident occurs. These treaties include

82 International Atomic Energy Agency, supra note 31, at 72.

83 Ibid.

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

85 International Atomic Energy Agency, supra note 68, at Article 5.

86 Ibid.

the 2004 Paris Protocol, the 1997 Vienna Protocol, the Convention on Supplementary Compensation for Nuclear Damage, and so on.⁸⁷ The Early Notification Convention could refer to one of those conventions if there is any dispute concerning the compensation of a radiological incident. However, this study would not dig into any one of those nuclear liability treaties since the focus of the research is about nuclear safety.

As for the lack of implementation assessment, just like what was mentioned earlier, this study suggests that the EPREV missions could become an obligation. This way, the implementing status in each State Party will be evaluated to see if it matches the requirements of the guiding book

―Preparedness and Response for a Nuclear or Radiological Emergency (IAEA Safety Standards Series GSR Part 7)‖, hence significantly improving the nuclear safety in the international level.

2.5.4. Equitable Measures

To help the vulnerable countries and to maintain international justice, Article 8 provides that the IAEA should conduct investigations into the feasibility and establishment of an appropriate radiation monitoring system to a country which does not have nuclear activities itself and borders on a State having an active nuclear program but did not sign this Convention.⁸⁸ Once again, this article is excellent. Since the country who did not sign this Convention would not be requested to comply with the regulations, it may or may not notify the bordering states once a nuclear accident occurs. As a result, the IAEA must do the research to know what countries are having nuclear power plant programs right now and are not States Parties of the Early Notification Convention. After doing the research, the IAEA could establish the monitoring systems in the territories of the vulnerable countries mentioned above. In practice, this article has yet to be applied though, since all the countries that are operating nuclear power plants right now are Member States of this Convention except for the island state—Taiwan.⁸⁹

2.6. Convention on Assistance in the Case of a Nuclear Accident or