The Fukushima Disaster : the limits of law

Nuclear energy is a contemporary reality which cannot be ignored. It is a reality because of its economic dimension and because of the fear it creates in everyone’s mind. Its existence has often been challenged as a result of the recent catastrophes. As a consequence, this controversial energy is at the very heart of many debates.

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The limits of conventions on nuclear energy

After the accidents of Three Mile Island in the USA on March 28th 1979 and Tchernobyl in Ukraine on April 26th 1986, the nuclear catastrophe of Fukushima Dai on March 11th 2011 stands as the third major event in the history of civil nuclear energy. This accident will be remembered taking into account the fact that the nuclear industry – which is one of the most restricted in the world – is not a zero risk energy source. Indeed, the Fukushima disaster challenged international cooperation and the practice of international conventions, which had been enforced for the 25 previous years. Actually, since the Tchernobyl disaster, two conventions were implemented hastily on September 26th 1986: with the help of the IAEA (International Atomic Energy Agency), a convention was adopted concerning the urgent notification of a nuclear accident and another one concerning the aid in case of a nuclear disaster or a radiologic emergency . They were proven weak during the Fukushima disaster :

  • A lack of independence of nuclear authorities (no official separation between the nuclear authority and the government)
  • An absence of transparency concerning the information reported
  • An unsuitability of the conventions to the complexity of nuclear industry (too general without any global vision)
  • A lack of harmonization of international legal mechanism regarding responsibility
  • Excessive State sovereignty as nuclear energy is a well kept secret

Food for thought on nuclear energy

Soft law presents considerable advantages regarding the practice of nuclear law. It generates interest in that such law involves the voluntary membership of stakeholders. This voluntary membership can be explained by the internationalization and normalization phenomena which are answers to barriers of the plurality of States’ situation in the nuclear field. Soft law is a non-binding legislation which has to involve stakeholders’ support in order to change or guide behaviours. To get stakeholders’ support, soft law resorts to other instruments such as codes of conduct or guidelines that are typical IAEA instruments. Soft law doesn’t define the outlines of the freedom of action but it acts as a reference or a rule to which stakeholders can agree. To achieve this, we can notice two phenomena, normalization and internationalization, to develop technical rules. On the one hand, the use of the normalization consists in the voluntary application of technical rules through shared modalities prepared by companies in order to achieve a consensus. On the other hand, thanks to internationalization, there are exchanges of information and practices in order to avoid obstacles to States’ legal rules.

These phenomena contribute to a process of standardization of the rule which can be approved thanks to a system of shared practices. As a result, soft law provides a “common language” to public or private stakeholders which come under different legal systems, especially regarding nuclear law. Indeed, diversity is an impediment to the harmonization of safety rules when we take into account institutional, political, social, technological or geographic fragmentations into the international society. Let us take the example of the technological fragmentation which is representative of the diversity of situations at the international level. There are different kinds of nuclear reactors around the world and a minority of nuclear reactor operators.

Regarding the fact that international mesures were taken rapidly and were proven to be a failure, the reference to these measures – which are a product of consensus – has to be put into question. As a matter of fact, these legal instruments which can be voluntarily adopted by the states might not be relevant considering the complexity of nuclear events. New ways of regulation are expected to be created so as to build a better harmonisation, even a unification in the nuclear field. This harmonisation could appeal to soft law, which offers major advantages such as the possibility to adapt itself to the diversity and the specifics of the situation depending on the state concerned.

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