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International Law Lessons From the Fukushima Nuclear Disaster

New York Law Journal

April 29, 2011

If climate change concerns, as well as a desire to reduce dependence on imported oil and domestic coal, have led policymakers, investors and environmentalists in many countries to rethink their opposition to nuclear power, what lessons can be learned from the nuclear catastrophe at Japan's Fukushima Daiichi nuclear complex? In particular, if nuclear power is, despite the Fukushima accident, a likely choice for an increasing number of both developed and developing countries, what role can international law play in reducing the likelihood—and consequences—of future nuclear accidents that place the global environment and tens of millions of people in neighboring countries at risk of permanent harm?

This column briefly summarizes existing international law with respect to transboundary impacts of the Fukushima accident and suggests an alternative approach for future international agreements if nuclear energy is to be a safe and reliable source of energy in the 21st century.

Background

On March 11, 2011, a magnitude 9.0 earthquake, the most severe in Japan's history, struck the northern part of the country, including the village of Okuma, home to the Tokyo Electric Power's (TEP) Fukushima Daiichi nuclear power station. In less than an hour, Okuma, the Fukushima complex and much of the surrounding province was also struck by a 50-foot high tsunami that inundated villages, destroying much of the province's infrastructure, including TEP's transmission lines to Fukushima. It also engulfed Fukushima's standby generators and rendered inoperable both its regular and emergency cooling systems for its six reactors and companion spent fuel pools.

With Fukushima's cooling systems inoperable, TEP has struggled in the ensuing weeks to limit radioactive releases to the atmosphere resulting from a series of explosions within the reactor buildings and from fires at one or more of the spent fuel pools. In order to prevent further atmospheric releases, TEP has also been forced to release millions of gallons of radioactive water to coastal waters following emergency flooding of both reactor cores and spent fuel pools by seawater and, more recently, groundwater.

After initially assuring citizens that there was little danger to nearby residents or food sources, Japanese authorities have been forced to evacuate some 140,000 residents from villages within, first, a 12-mile radius and, more recently, an 18-mile radius of Fukushima. At the same time, the U.S. State Department, acting on the advice of Nuclear Regulatory Commission staff, advised all U.S. residents within a 50-mile radius to evacuate the area immediately.

Coming on top of the initial devastation caused by the tsunami to the region's residents (almost 29,000 dead or missing and hundreds of thousands still in temporary shelters), the Fukushima disaster has placed extraordinary strains on a Japanese economy and society that was only beginning to emerge from a decade-long economic recession. At least four and more likely all six of the Fukushima reactors will need to be decontaminated and then decommissioned. This process, along with decontamination of the spent fuel pools and radioactive water used to cool the facilities, is expected to take between 10 and 30 years, and parts of the evacuation zone may be unusable for any purpose for years. Moreover, Japan generates a substantial share of its electrical power from nuclear energy, and the loss of Fukushima will both reduce the supply and increase the cost of electricity for Japanese industries and consumers, with consequent impacts on the pace of the economy's recovery.

International Impacts

The international dimensions of the Fukushima disaster are less clear and have received far less attention than domestic Japanese impacts. Because of the facility's coastal location and fortuitous wind patterns, it appears that most of the atmospheric contamination has been diluted substantially as it traveled across the Sea of Japan and the Pacific, so that radiation levels in eastern China, Korea and the western United States, while detectable, were said by most experts to present no serious threat to crops, livestock or people.

However, marine species migrating through Japanese waters near Fukushima have been, and will likely continue to be, exposed to highly radioactive waste water from TEP's emergency cooling operations. The long-term impact of radioactive isotope build-ups in fish, crustaceans and marine mammals is not yet clear, but is unlikely, if it proves serious, to be limited to Japanese consumers.

The international community may have dodged a nuclear bullet from Fukushima, just as it was spared at least the short-term impacts of BP's oil spill in the Gulf of Mexico last year. But what if the winds or tides had carried high levels of radioactive contamination to neighboring states, or if Fukushima had been located not in northern Japan but in a country with far less capacity to carry out the challenging, expensive and dangerous measures that even Japan has had difficulty implementing? What if Fukushima were located near Buenos Aires and the principal impacts of a similar nuclear accident were felt not in Argentina but in neighboring Uruguay, Paraguay or Chile? What remedies would the international community have for nuclear contamination under existing international law, and what lessons does Fukushima teach about the need to improve the international regulation of nuclear power?

Existing International Law

The international legal regime for civilian nuclear power plants is set forth in a cluster of multilateral conventions, two important (but not yet effective) protocols to those conventions and a growing body of customary international law. Among the conventions currently in force are (1) the 1963 Vienna Convention on Civil Liability for Nuclear Damage; (2) the 1994 IAEA Convention on Nuclear Safety; and (3) two 1986 Conventions relating to early notification of nuclear accidents and assistance to countries affected by such accidents, both adopted in response to the Chernobyl accident earlier that year. A 1997 Convention that would amend the 1963 Vienna Convention and a separate 1997 Convention on compensation for nuclear damage have been signed but are not yet in force.

Beyond these conventions, customary international law recognizes the obligation of all states not to permit activities on their territories that cause significant environmental injury to other nations, though the application of this principle to nuclear power, which is so thoroughly dealt with in formal conventions, is questionable. In addition, the United Nations Convention on the Law of the Sea, although not drafted with nuclear accidents in mind, is arguably relevant to the release of contaminated cooling water into international waters.

It is clear under both the existing nuclear conventions and their proposed protocols that TEP, as the "operator" of the Fukushima plant, is strictly liable under international law to parties injured by the plant's radioactive releases. However, even assuming the injured parties have access to a court with jurisdiction over the operator, that liability could far exceed both TEP's assets (if any such assets remain after payments to Japanese victims) and any insurance or international compensation fund established for accident victims under the pending protocols to the Vienna Convention.

A strong case might also be made that the Japanese government failed to live up to its obligations under the Vienna Convention and the 1994 Convention on Nuclear Safety. The 1994 Convention, in particular, requires state parties to take appropriate steps to assure the safety of existing nuclear installations, including ensuring that "all reasonably practicable improvements are made as a matter of urgency" to such facilities or, if that is not feasible, that such facilities be shut "as soon as practically possible." The 1994 Convention also requires each of the state parties to put in place appropriate emergency preparedness plans, something that both TEP and the Japanese regulators appear not to have carried out in the case of the major tsunami strike on the plant and the electric power grid on which it relied.

It also appears that the Fukushima plant continued to rely on design and operational features that no longer satisfied current industry standards and that Japanese regulators failed to insist that TEP remedy those shortcomings. As a result, other state parties to the 1994 Convention might be able to assert successful claims against Japan for damage to their environment, property and citizens resulting directly from the release of nuclear contaminants from the Fukushima plant.

Despite this theoretical remedy, it seems unlikely that any nation, whether or not a party to the Vienna Convention or the 1994 Convention, would sue to recover damages from Japan for the Fukushima accident, just as no nation sought to hold the Soviet Union responsible for the widespread damages suffered by neighboring states after Chernobyl. The fact is that even as wealthy a nation as Japan is, it may well require assistance in responding to the largest earthquake in its history, a tsunami that appears to have killed almost 29,000 people and displaced hundreds of thousands more, and a nuclear accident that destroyed a significant share of its electrical power capacity and rendered uninhabitable, at least temporarily, portions of its territory—all at a time when its economy is under significant domestic and international stress.

If potential claimants conclude that international litigation against Japan is unlikely to be productive when Japan's recovery is in the global community's self-interest, it is even less likely that, if a comparable nuclear accident occurred in a less affluent country, the theoretical availability of damage claims under international law would afford a meaningful remedy to injured parties.

An Alternative Approach

What this implies, I believe, is that global protection against nuclear accidents must rely less on broad, but largely unenforceable, statements of principle that the states and nuclear plant operators should conform to international norms, and more on a combination of (1) rigorously enforced and uniform international standards designed to prevent nuclear accidents in the first place; (2) meaningful civil and criminal liability for those firms (and individuals) in the nuclear industry that design or operate unsafe facilities; and (3) international emergency response and spent fuel programs described below. If nuclear power is to play a significant role in helping both developed and developing countries meet their future electricity needs, the following improvements to the existing treaty regime deserve prompt attention:

Mandatory IAEA Standards. It is time for the International Atomic Energy Agency (IAEA) to promulgate, and periodically upgrade, uniform state-of-the-art standards for all new nuclear power plants and similar mandatory upgrade requirements for existing facilities. These standards and upgrade requirements should include design, construction, operating protocols, employee training and supervision, inspection and reporting procedures, spent fuel storage, shipment and disposal requirements, emergency preparedness and redundancy, compensation funds, decommissioning plans, agency supervision, and adequate domestic law enforcement to assure compliance with these commitments. As Fukushima demonstrates, even the most technologically advanced and efficient countries can circumvent current safety standards under the broad parameters of existing international law.

For this reason, international standards must not only be compulsory but must also be set at the highest technically feasible levels, notwithstanding the additional cost that such levels imply for operators or the barriers they present for local industry. The Fukushima accident makes clear not only that the global community has a direct interest in assuring the safety of all nuclear installations, but that compliance with international standards can no longer be left solely to national authorities.

Uniform Export Controls. Because it is no longer sufficient for states to promise to comply with international standards, it will be necessary for all states to complement the new IAEA requirements with export controls aimed at the relatively small number of engineering and manufacturing firms that comprise the international nuclear industry. Building on the existing international controls of hazardous waste under the Basel Convention, a new nuclear safety agreement should require all states to prohibit the export of nuclear fuel, equipment, services, know-how and personnel except where both the country and facility in question have been certified by IAEA as in compliance with the mandatory standards described above. Each nation must establish satisfactory and publicly available pre-clearance procedures for such exports, including consultation with IAEA to verify any such certification claim.

Corporate Liability. With domestic export controls in place to enhance compliance with IAEA standards, corporations (and their senior officers) that export technical services, equipment, intellectual property, fuel or other items to help construct or operate uncertified nuclear facilities should face both criminal and civil liability in their own countries, the country where the facility is located, other signatory parties and in any country injured by a nuclear release. In addition, firms violating such export controls should be strictly liable, along with the operator of any uncertified facility, for any damage resulting from a nuclear release from the facility.

Conversely, firms complying with domestic export controls and limiting their goods and services to IAEA-certified facilities should be exempt from such strict liability (though liable for negligence in the design or operation of their goods and services). While nations may, as a practical matter, avoid liability for their non-compliance with international obligations, the firms that make up the nuclear industry and that stand to profit from its resurgence should enjoy no such immunity.

International Emergency Response and Spent Fuel Repositories. Fukushima also shows the practical impossibility of any one nation's responding adequately to a major nuclear accident, even when the impact is largely confined to that country. The IAEA should therefore establish regional "nuclear firehouses" with specialized back-up equipment and personnel to be deployed promptly to contain potential releases so that affected countries do not waste time debating the preferred response procedures or their respective roles in responding to an accident. At the same time, the IAEA should renew its earlier call for at least two internationally monitored spent fuel repositories to which all spent fuel from nuclear power plants must be sent.

Fukushima shows the dangers of leaving spent fuel at power plant sites. The commercial reprocessing of such fuel offers opportunities for the conversion of spent fuel for military purposes and its subsequent acquisition by both state and non-state actors. If nuclear power is to be a part of the world's energy future, safe long-term storage of spent fuel under international supervision, whether in the U.S. or other secure locations, is simply indispensable.

Annual IAEA Reporting. An essential component of the approach suggested above must be regular reporting (at least quarterly) to the IAEA of all actions taken by states with respect to both existing and proposed nuclear facilities, as well as all export licenses issued (or denied). IAEA should in turn make all such reports publicly accessible and should issue its own annual reports with respect to the operation of all nuclear power plants, its own emergency response capability, and the status of the internationally-monitored spent fuel repositories.

Because of the critical role played by non-governmental organizations in enforcing domestic environmental laws, such organizations should not only have continuing access to IAEA documents, but should also have standing to participate in IAEA meetings (including, in particular, those aimed at establishing or revising mandatory safety standards) and to bring enforcement proceedings both before the IAEA and the domestic courts of signatory states.

The safety of nuclear power plants will, of course, turn on more than the terms of any new international agreement, and the risks posed by both nature and human error can never be completely eliminated. However, if nuclear power is to have a significant future in a world concerned about fossil fuel availability and greenhouse gas emissions, every feasible step must be taken to make nuclear facilities safe for the world's environment and people.

One first step is to strengthen the existing international legal regime regulating nuclear power to include mandatory IAEA standards in order to prevent accidents of the kind experienced at Fukushima and to further deter such accidents by holding both private and public actors accountable for their consequences.


Stephen L. Kassi s a partner at Carter Ledyard & Milburn and co-director of the firm's environmental practice group. He is an adjunct professor of international environmental law at Brooklyn Law School.

This article is reprinted with permission from the April 29, 2011 issue of the New York Law Journal  © 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.


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