International Legal Instruments Corroborate Liability, Safety Regimes

During normal operations and particularly in the event of the unexpected, an adequate legal framework for the safe, secure and peaceful use of nuclear technology is indispensable. The national and international nuclear legal systems of today provide a legal framework for conducting activities related to nuclear energy and ionizing radiation in a manner that adequately protects individuals, property and the environment, and helps determine liability when something goes wrong.

The 1986 Chornobyl accident prompted the swift adoption of the Convention on Early Notification of a Nuclear Accident (Early Notification Convention) and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention), which form the legal basis for the international emergency preparedness and response framework. Further negotiations led to the adoption of the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention in 1988, as well as the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage and the Convention on Supplementary Compensation for Nuclear Damage in 1997. In addition, the 2011 Fukushima Daiichi nuclear accident catalyzed efforts to further strengthen the existing framework for nuclear liability and safety.

“At the time of the Chornobyl accident in 1986, there were few treaties that had been concluded under the auspices of the IAEA in relation to the peaceful uses of nuclear energy,” said Andrea Gioia, Senior Legal Officer at the IAEA. In addition to the adoption of the 1986 Early Notification and Assistance Conventions, the Convention on Nuclear Safety (CNS) was later adopted in 1994, followed by the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management in 1997.

Following the Fukushima Daiichi nuclear accident, Member States adopted the IAEA Action Plan on Nuclear Safety (read more here), in which one of the 12 areas outlined focused on reinforcing the international legal framework. “The main emphasis here was placed on the effective implementation of the existing treaties, as well as on the strengthening of the nuclear liability regime,” Gioia said.

The significance of a global nuclear liability regime to delineate legal responsibilities “lies in two major areas: public confidence and nuclear trade. If nuclear power is to play its necessary part in the decarbonization of world energy supply, it is critical that barriers to the development of new facilities, such as uncertainty around liability arrangements, are removed,” said Steven McIntosh, Chairman of the International Expert Group on Nuclear Liability (INLEX).

The IAEA Action Plan sets out the need to establish “a global nuclear liability regime that addresses the concerns of all States that might be affected by a nuclear accident, with a view to providing appropriate and sufficient compensation for nuclear damage,” McIntosh, who is also Senior Manager of Government and International Affairs at the Australian Nuclear Science and Technology Organisation (ANSTO), said.

Though the Convention on Supplementary Compensation for Nuclear Damage (CSC) was adopted in 1997, it was not until 2015 that it entered into force when Japan submitted its instrument of acceptance.

“Contracting Parties have decided to create a system of regular meetings to examine problems of common interest and to further promote adherence to the CSC, strengthening global liability,” Gioia said.

The first meeting of the CSC parties took place in 2018, and the next meeting is expected to convene in August 2021 in Vienna. The CSC aims to increase the amount of compensation available in the event of a nuclear accident through public funds to be made available by the Contracting Parties at the United Nations rate of assessment.

While attempts to amend the CNS following the Fukushima Daiichi accident were unsuccessful, a political declaration — the Vienna Declaration on Nuclear Safety (VDNS) — was adopted by consensus in 2015. The VDNS guides Contracting Parties in the design, siting and construction of new nuclear power plants and contains guidance on periodic safety assessments of existing installations to identify safety improvements to meet CNS objectives. “Contracting Parties also committed themselves to reflect these principles in their actions when preparing their Reports to be submitted for consideration of the 7th Review Meeting of the CNS in 2017,” said Judit Silye, IAEA Legal Officer.

Furthermore, the Working Group on Effectiveness and Transparency was established to provide guidance on meeting CNS objectives, as well as to support the preparation of National Reports and improve transparency, the review process and international cooperation. “In this regard, each National Report is made publicly available after the Review Meeting, unless the Contracting Party concerned notifies the Secretariat otherwise,” Silye added.

One of the objectives of the Convention on Nuclear Safety (CNS), which entered into force on 24 October 1996, is “to achieve and maintain a high level of nuclear safety worldwide through the enhancement of national measures and international cooperation.” The obligations for the 90 Contracting Parties under the CNS include submitting National Reports on the implementation of their obligations under the CNS for “peer review” in meetings held every three years.