Evolving Issues of International Law and Policy
Edited by S. Jayakumar, Tommy Koh, Robert Beckman and Hao Duy Phan
Chapter 8: Preventing transboundary nuclear pollution: a post-Fukushima legal perspective
AbstractThis chapter focuses on the role of international law in setting the basic parameters of the process through which the realisation of transboundary nuclear risks might be prevented. Specifically, the chapter first reviews transboundary nuclear pollution prevention from the perspective of customary international law, then from the viewpoint of the international nuclear safety regime centred principally on the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. It concludes that while the principle of national responsibility still dominates the global discourse about nuclear safety, the increasing internationalisation of key aspects of nuclear safety as evidenced, in particular, by calls for the strengthening of international safety reviews in the wake of Fukushima, has become an essential underpinning to the very credibility of our convention-based global nuclear safety system. Finally, the chapter reviews two special situations in which one State’s nuclear power or fuel cycle activities impinge directly upon the territorial sovereignty of other States, hence giving rise to enhanced legal claims for protection against transboundary risks of nuclear harm: (i) the ‘border siting’ of nuclear facilities whose emergency planning zones would necessarily extend into neighbouring States’ territory and (ii) the maritime transportation of radioactive materials through foreign States’ territorial seas. The sections end with a suggestion of how in each situation the traditional balance of international rights and obligations might be adjusted to better accommodate risk-exposed States’ legitimate concerns.
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