Development of Nuclear Safety Conventions

Chapter 2. International Legal Framework on Nuclear Safety

The international conventions that are relevant to nuclear activities can be divided into two types: nuclear liability conventions and nuclear safety conventions. Nuclear liability conventions are to compensate the loss of life and property after a nuclear accident, and nuclear safety conventions are to prevent the accidents from happening, or to minimize the radiological consequence once an incident occurs. In order to enhance the nuclear security worldwide, this thesis focuses on the examination of the international nuclear safety conventions and leaves the nuclear liability conventions for future works to discuss.

The International Atomic Energy Agency (IAEA) was established on July 29th, 1957, and it is one of the most authoritative international organizations on nuclear safety. To date, there are 171 Member States in the IAEA. Even though this organization was founded independently of the United Nations through its own international treaty, the IAEA Statute, it reports to both the General Assembly and Security Council of the United Nations. Therefore, it is believed that the international nuclear safety conventions adopted by the IAEA are authoritative to secure reactor facilities worldwide and worthy of taking into consideration. However, it is also important to note that despite its credibility, not every country with operating nuclear power plants get to join this organization; for instance, Taiwan is not a Member State of the IAEA.

In accordance with the IAEA, there are currently four major international nuclear safety conventions: the Convention on Nuclear Safety, the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, the Convention on the Early Notification of a Nuclear Accident, and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency.⁴ In addition, the IAEA recommends each country to also take the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter into account, as stated in the thirteenth paragraph in the preamble of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.⁵ Therefore, there are a total of six international conventions highly related to the nuclear safety regime. This chapter will first elaborate the development of these international nuclear safety conventions, and then introduce the analytical method that this research applies to evaluate the conventions. Finally, there will be detailed and critical analysis for each of the nuclear safety conventions.

2.1. Development of Nuclear Safety Conventions

Figure 1, Figure 2, and Figure 3 are the timelines of the adoption, entrance into force, and amendments for each of the six conventions, respectively. Typically, a convention would be opened for signature shortly after its adoption; for instance, the Convention on Nuclear Safety was opened for signature on 20 September 1994, only three months after its adoption on 17

4 Ibid., 23-28.

5 International Atomic Energy Agency (1997). Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. Vienna, Austria:

International Atomic Energy Agency.

June 1994.⁶ As a result, the timelines did not show the date when each convention was opened for signature. In addition, there are some preliminary conditions before an amendment proposal could be adopted or enter into force.

Take the Convention on Nuclear Safety for example, according to Article 32, all Contracting Parties must reach a consensus in order to adopt a proposed amendment. In the absence of consensus, the amendment proposal has to enter a Diplomatic Conference and obtains a two-thirds majority vote before its adoption.⁷ As a result, although States Parties might propose a number of amendments on a convention from time to time, only few of them could successfully complete the adoptions. For instance, after the Fukushima Nuclear Disaster, Russia, Spain and Switzerland each drafted an amendment proposal on the Convention on Nuclear Safety, but each of the proposed amendments failed to reach the adoption.⁸ Thus, the following timeline did not reveal any proposed amendment which was declined; instead, it only shows the adopted amendments and the time when they entered into force. On the other hand, even when an amendment proposal was already adopted, there are some further conditions before it could enter into force. For example, in the Convention on Nuclear Safety, Article 32.5 states that the adopted amendment would come into force only in those Contracting Parties which have ratified, accepted, approved or confirmed it on the ninetieth day after the receipt by the Depositary of the relevant instruments by at least three fourths of the Contracting Parties.⁹ This is probably the reason why there is a long gap between the adoption date and the date of entrance into force—As it could be seen in the following timelines, in both the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, it took approximately ten years to let each amendment proposal enter into force.

6 International Atomic Energy Agency (1994). Convention on Nuclear Safety. Vienna, Austria:

International Atomic Energy Agency.

7 Ibid., Article 32.

8 Burns, supra note 1, at 25-26.

9 International Atomic Energy Agency, supra note 6, at 12.

According to Burns (2018), the nuclear safety conventions were developed in an early stage after the Three Mile Island Nuclear Disaster in 1979 and experienced a rapid progress with international consensus after the Chernobyl Nuclear Disaster in 1986.¹⁰ From Figure 1, Figure 2 and Figure 3, it could be observed that shortly after the Three Mile Island Nuclear Disaster, the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities was adopted. Moreover, shortly within two years following the Chernobyl Nuclear Disaster, two nuclear safety conventions were adopted and three nuclear safety conventions entered into force. Despite all the efforts, another major nuclear accident—the Fukushima Nuclear Disaster—still occurred. Therefore, it is inevitable to overhaul the existing nuclear safety conventions and find out what are the probable defects resulting in the Fukushima Nuclear Disaster.

2.2. Analytical Method for Nuclear Safety Conventions and Taiwanese